Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1178 (MAD)

C. Aravindan v. D. Kathirvelu

2012-03-05

R.S.RAMANATHAN

body2012
Judgment :- 1. The tenant is the revision petitioner. The respondent/ landlord filed R.C.O.P.No.35 of 2001 on the file of the Rent Controller, Ambattur for eviction on the ground of owner's occupation. That application was dismissed and the appeal filed by the respondent/ landlord in R.C.A.No.3 of 2007 on the file of the Rent Control Appellate Authoritty-cum-Subordinate Judge, Poonamallee was allowed and against that this revision is filed by the revision petitioner/ tenant. 2. The learned counsel for the revision petitioner submitted that admittedly the tenanted property consist of two portions and the revision petitioner is occupying the eastern portion. Originally the western portion was in the occupation of brother's son of the respondent/ landlord and he vacated the premises long back and that portion has not been occupied by anybody. He further submitted that in the petition it has been stated that the respondent/ landlord was working in HVF at Avadi and he was residing at Shevapet and he found it difficult to come to his factory at Avadi and for that purpose he required the premises for his own occupation. But when the matter was taken up for trial, the respondent/ landlord retired. Therefore, there was no necessity for him to come and settle at Ambattur to attend his work and admittedly the respondent/ landlord is having a house at Shevapet and he has not stated in the chief examination that he required the premises for his own occupation and therefore in the absence of pleadings and evidence to that effect, the appellate Court erred in ordering eviction without properly appreciating the findings rendered by the learned Rent Controller. He further submitted that the specific case of the respondent/ landlord was that he was not well and therefore he was not in a position to attend his work from Shevapet and no attempt was made by him to prove his illness during trial and only during appeal he filed some medical certificates and it was relied upon by the learned Rent Control Appellate Authority for ordering eviction and admittedly that document namely Ex.P2 was of the year 2005-2006 and the petition was filed in 2001 and therefore the learned Rent Control Appellate Authority ought not to have relied upon Ex.P2 to allow the appeal. He also relied upon the Judgement reported in 2007 (3) CTC, 59 (T.Tamilarasan Vs. Arokkiasamy and others) in support of his contention. He also relied upon the Judgement reported in 2007 (3) CTC, 59 (T.Tamilarasan Vs. Arokkiasamy and others) in support of his contention. He also relied upon the Judgement reported in 1999 (6) SCC, 222 ( Shiv Sarup Gupta Vs. Dr.Mahesh Chand Gupta) and Para 14 of that Judgement and contended that as held by the Hon'ble Supreme Court in the above Judgement, admittedly, the western portion of the same building is available for occupation and that was not occupied by the respondent/ landlord and therefore as per the Hon'ble Supreme Court referred to above adverse inference can be drawn and without considering the same, the learned Rent Control appellate Authority has ordered eviction. He further submitted that the learned Rent Control Appellate Authority ought not to have relied upon Exs.P2 and P3 for ordering eviction. 3. I am unable to accept the contention of the learned counsel for the revision petitioner. Admittedly, the application was filed for owner's occupation and under Section 10(3)(a) (i) of the Tamil Nadu buildings (Lease and Rent Control) Act, the building must be a residential building, the landlord requires it for his own occupation or for the occupation of (any member of his family) and if he is not occupying a residential building of his own in the city, town or village concerned. In this case admittedly it is a residential building and the landlord/ respondent herein is not occupying the residential building of his own in the city of Ambattur where the tenanted premises is situate. Admittedly, the respondent/ landlord is having a house at Shevapet which is in Tiruvallur Taluk and the tenanted premises is at Ambattur Taluk. Therefore, it cannot be stated that the respondent/ landlord is having a residential house in the same City, Town or Village and he is occupying that building. Therefore, the respondent/ landlord satisfies the two requirements that the building is a residential building and he is not occupying a residential building of his own in the same place. The next ingredient is that whether the landlord/ respondent requires for his own occupation and whether the landlord's requirement is bona fide or not. To appreciate the above contention we will have to see the pleadings and evidence. 4. The application was filed in the year 2001 and at that time the respondent/ landlord was employed in HVF at Avadi. The next ingredient is that whether the landlord/ respondent requires for his own occupation and whether the landlord's requirement is bona fide or not. To appreciate the above contention we will have to see the pleadings and evidence. 4. The application was filed in the year 2001 and at that time the respondent/ landlord was employed in HVF at Avadi. It was the case of the respondent/ landlord that he was not well and he found it difficult to come from Shevapet daily to his office and therefore he required the premises for his own occupation. When the case was taken up for trial, he retired and he has stated that he required the building for his own occupation. He also admitted that his wife employed in Tirupathi also retired and to live with his family he required this premises. Therefore, the evidence of the respondent/ landlord makes it clear that he requires premises for his own occupation and considering the fact that he is not having any other building in Ambattur, it cannot be stated that the requirement of the respondent/ landlord is not bona fide. It is submitted by the learned counsel for the revision petitioner that admittedly another portion in the same premises is vacant and that has not been occupied by the respondent/ landlord and if really the landlord wants to settle at Ambattur he would occupy that premises and the fact that he has not taken any steps to occupy that premises, that requirement is not bona fide. For that purpose he relied upon the Judgement reported in 1999 (6) SCC, 222( Shiv Sarup Gupta Vs. Dr.Mahesh Chand Gupta) with particular reference to para 14 of that Judgement and it reads as follows: "The availability of an alternative accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere and natural. Secondly, another principal ingredient of clause (e) of sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the Court has to ask the landlrod why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlrod is seeking eviction. Convenience and safety of the landlrod and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlrod and his family members, their style of living, their habits and the background wherefrom they come." 5. According to me, the above Judgement cannot be applied to the facts of the case. In this case, in the same premises one portion is in the occupation of the revision petitioner and another portion is vacant whereas in the reported Judgement the landlord had alternative accommodation other than the accommodation occupied by the tenant and in that circumstances, the Hon'ble Supreme Court has held that when the landlord had alternative accommodation he has to say why he has selected the particular tenanted premises under the occupation of the tenant for his own occupation. Further, it has been held in the same Judgement that the alternative accommodation must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Further, it has been held in the same Judgement that the alternative accommodation must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. As stated supra, in the same premises one portion is in the occupation of the tenant and another portion was let out for the brother's son of the respondent/ landlord and after he vacates the premises that portion is kept vacant. According to me, that fact would only prove that the landlord bona fidely requires the entire premises for his accommodation and if the portion occupied by his brother's son was sufficient for him he would have occupied that portion immediately after his retirement. The landlord having realized that he required the premises in entirety for the occupation of himself and his family consisting of his wife and children applied for own occupation and in my opinion, the requirement of the landlord is bona fide and it cannot be considered as a mala fide requirement. 6. Further, the learned Rent Controller without appreciating the ingredients of Section 10(3)(a)(i) of the Act dismissed the eviction petition on the ground that the revision petitioner is paying the rent regularly and the landlord has not filed any proof regarding the illness. According to me, even assuming that the landlord has not proved his illness, he is entitled to occupy his own house at Ambattur and having regard to the fact that his wife employed at Tirupathi and the house is at Shevapet is his family house the landlord might have thought of residing in his own house after retirement. Considering all these aspects, the learned Rent Control Appellate Authority has rightly allowed the appeal and ordered eviction and I do not find any infirmity in the order of the learned Rent Control Appellate Authority. 7. Hene, I do not find any merit in the revision and the revision is dismissed. Considering all these aspects, the learned Rent Control Appellate Authority has rightly allowed the appeal and ordered eviction and I do not find any infirmity in the order of the learned Rent Control Appellate Authority. 7. Hene, I do not find any merit in the revision and the revision is dismissed. As requested by the learned counsel for the revision petitioner, I am inclined to grant six months time for eviction on condition of filing an undertaking affidavit by the revision petitioner within a period of two weeks from the date of receipt of a copy of this order to vacate and hand over vacant possession of the tenanted premises to the respondent/ landord and also on condition of paying the admitted rent regularly without fail to the respondent/ landlord till he vacates and hands over vacant possession of the property. If the revision petitioner commits default either in paying the rent or in filing the undertaking affidavit as stated supra, it is open to the respondent/ landlord to take steps to execute the order as ordered by the learned Rent Control Appellate Authority. With the above direction, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.