Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3112 (MAD)

S. Arul v. Venkataraman

2012-07-18

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 09.09.2011 passed in RCA No.1 of 2011 by the learned Appellate authority/Principal Subordinate Judge, Thiruvannamalai confirming the order of the learned Rent Controller, Principal District Judge, Thiruvannamalai passed in RCOP No.13 of 2003 dated 19.04.2010, this civil revision petition is focussed. 2. The epitome and the long and short of the relevant facts absolutely necessary for the disposal of this revision in a few broad strokes, could be encapsulated thus: (i) The first respondent/landlord filed the RCOP as against the original tenant, deceased Sundaramurthy, invoking Sections 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the following grounds: (1) Willful default in paying rent for 21 months (2) Personal occupation, i.e., for enabling the landlord's son to carry on business in the demised premises. (ii) The tenants resisted the RCOP on various grounds. (iii) During enquiry, on the side of the respondent/landlord, Venkataraman examined himself as P.W.1 along with P.Ws.2 and 3 and marked Exs.P1 to P10. On the side of the revision petitioners/tenants R.W.1 and R.W.2 were examined and Exs.R1 to R14 were marked. 3. Ultimately the Rent Controller dismissed the RCOP on both the grounds, as against which appeal was filed for nothing but to be dismissed by the appellate authority, confirming the order of the learned Rent Controller. 4. Inveighing and impugning, challenging and disputing the order and judgment of the Courts below, this revision has been focussed on various grounds. 5. The learned counsel for the revision petitioners would put forth and set forth his arguments which could pithily and precisely be set out thus: (a) Both the authorities below failed to take note of the fact that on health grounds alone the tenants were not in a position to pay the rent, but it was looked askance at by the authorities below and held as though there was willful default in paying the rent. (b) The very fact that the arrears were paid in one lumpsum on receipt of notice from the landlord, bespeaks and betokens that there was no intentional omission to pay rent to the landlord by the tenants. (b) The very fact that the arrears were paid in one lumpsum on receipt of notice from the landlord, bespeaks and betokens that there was no intentional omission to pay rent to the landlord by the tenants. (c) Both the authorities adverted to the factum of a shop premises being vacant in the building wherein the demised premises forms part, but they failed to note that for no good reason the landlord did not accommodate his son in the vacant shop. However, he did pick and choose the demised premises purely for the purpose of evicting the tenants. Accordingly the learned counsel for the petitioners would pray for setting aside the orders of both the Courts below and for dismissing the RCOP . 6. Per contra, in a bid to extirpate and torpedo the arguments and pleas as put forth on the side of the petitioners/tenants the learned Senior Counsel for the landlord, would pyramid his argument which could tersely and briefly be set out thus: (a) By no stretch of imagination, it could be visualised that for 21 months a person, who is admittedly running business in the demised premises without any break, could refrain from paying rent on the ground of ill-health without he pushing himself within the ambit of willful default in payment rent. (b) It is not the case of the tenant that because of his alleged ill health his business came to a grinding halt and that alone made him not to pay the rent. In such a case, the findings of both the authorities warrants no interference. (c) Nowhere it is found stated that as on the date of the filing of the RCOP, one shop premises in the said building was vacant so as to enable the landlord to accommodate his son in running pawn broker business. The alleged vacant shop was under the occupation of his one other son and as such, both the Courts below understood the bonafide requirement of the premises by the landlord. Accordingly the learned counsel for the landlord would pray for the dismissal of the CRP. 7. The alleged vacant shop was under the occupation of his one other son and as such, both the Courts below understood the bonafide requirement of the premises by the landlord. Accordingly the learned counsel for the landlord would pray for the dismissal of the CRP. 7. The points for consideration are as to: (1) Whether there is any illegality in the findings of both the Courts below in the wake of the supine admission by the tenant that for 21 months, the rent was not paid and that he paid the rent in one lumpsum because of his ill health? (2) Whether there is any illegality in the order of both the Courts below in ordering eviction on the ground of bonafide personal occupation of the landlord so as to accommodate his son in the demised premises for the purpose of helping him to run pawn broker business? (3) Whether there is any perversity or illegality in the orders of both the Courts below? POINT NO.1: 8. Indubitably and indisputably, for 21 months consecutively the rent was not paid. However, the tenant was trying to explain and expound by pointing out that he was suffering from ill health and that alone incapacitated him from paying it. In addition to the above, he would also hasten to add that the landlord was in the habit of receiving rent for four or five months together. 9. At this juncture, I would like to fumigate my mind with the following decision of the Hon'ble Apex Court: 2002(4) CTC 572-E.PALANISAMY V. PALANISAMY (D) BY Lrs.AND OTHERS, certain excerpts from it would run thus: “4.It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a Bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specify the name of the Bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. If the landlord specify the name of the Bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a Bank inspite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act. 5. Mr.Sampath, the learned counsel for the appellant argued that since the appellant-tenant had deposited the arrears of rent in Court, it should be taken as compliance of Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the Court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The tenant legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance of the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance of the procedure is necessary. The tenant cannot straight away jump to the last step i.e. To deposit rent in Court. The last step can come only after the earlier steps have been by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal & Another, 1996(1) SCC 243 and M.Bhaskar v. J.Venkatarama Naidu, 1996(6) SCC 228 .” 10. The law is well settled that a tenant would not be absolved of his liability from paying the rent, simply because the landlord did not ask for it. It is not the case of the tenant himself that his business came to a standstill because of his ill health. The learned counsel for the petitioner/tenant would submit that during the period of illness of the tenant, the tenant's son was running the business and if that be so, I am at a loss to understand and there is no knowing of the fact as to what made the son of the tenant not to pay the rent on behalf of his father to the landlord. As such this crucial fact would smack willful negligence on the part of the tenant in paying rent to the landlord. On receipt of notice the entire arrears were paid by way of cheque, that itself would not obliterate the seriousness of the default committed in this case. Had the default been for a few months and that was explained by adequate reasons such as ill health etc., then the matter would have been different. But here as has been pointed out supra by me, there were arrears to a tune of 21 months, however, paradoxically during that period, the business of the tenant was carried on without any break. In such a case, the finding of both the Courts below that there was willful default in paying rent, warrants no interference. Accordingly, point No.1 is answered in favour of the landlord and as against the tenant. In such a case, the finding of both the Courts below that there was willful default in paying rent, warrants no interference. Accordingly, point No.1 is answered in favour of the landlord and as against the tenant. POINT NO.2 11. At the outset itself, I would like to recall and recollect the following decisions relating to owner's occupation: "1. (1999) 7 SCC 275 [T.Sivasubramaniam v. Kasinath Pujari] "4.From the aforesaid decisions it is clear that mere desire of the landlord to live separately from his father cannot be attributed to his need for the premises occupied by the tenant. It is often seen that a desire often takes its origin from what one likes and dislikes and necessarily it is not dependent upon his need. But we cannot lose sight of the fact that sometimes the desire may be the outcome of one's need. So when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bona fide. The need must be bona fide, genuine, honest and conceived in good faith. In the present case what we find is that, it was not pleaded by the landlord in his petition that he for certain compelling reasons desired to live separately from his father and for that reason he required the premises." 2. (2003) 1 SCC 672 [Lingala Kondala Rao vs. Vootukuri Narayana Rao] "6.To disentitle the landlord from claiming eviction under Section 10(3)(a)(iii) of the Act it must be shown that the landlord is in occupation of a non-residential building in the city, town or village concerned and that such building is his own or to the possession of which he is entitled under the Act or otherwise. In case of occupation of property by members of joint Hindu family wherein the interest of a member remains fluctuating depending on the increase or decrease in number of members of the family, it cannot be said that the landlord is in occupation of a non-residential building which expression, in the setting in which it has been used, would mean his own occupation in his own right. On the same reasoning, the non-residential building owned by the joint Hindu family cannot be called a non-residential building “which is his own”. On the same reasoning, the non-residential building owned by the joint Hindu family cannot be called a non-residential building “which is his own”. The expression “to the possession of which he is entitled” has to be construed as an immediate entitlement to possession so as to satisfy his requirement as stated in (a) and (b) parts of subclause (iii). A landlord cannot be expected to dislodge the members of the joint family from their possession over the joint family premises simply because the landlord requires the premises for his own exclusive use. He is not “entitled” to possession over joint family premises unless he claims partition whereat the suit premises are also allotted to him. In a partition he may or may not be held entitled to possession over the non-residential building pointed out by the tenant as an alternate accommodation and relied on by him for defeating the claim of the landlord. Therefore, a non-residential building owned by the joint Hindu family and in its occupation would not be included within the meaning of the expression “which is his own or to the possession of which he is entitled”. A non-residential building said to be owned or being under entitlement to possession by the landlord under Section 10(3)(a)(iii) of the Act cannot be just any nonresidential building without regard to other relevant factors including the extent of the ownership of the landlord and the remoteness between his entitlement and the occurrence of event when he would actually get possession. In taking this view, we find support from a few decisions of this Court. 7. In M. Padmanabha Setty v. K.P. Papiah Setty1 the Constitution Bench, interpreting the expression “entitled to possession” in a pari materia provision contained in a Mysore Act held that the expression would not include another tenanted accommodation wherefrom the landlord could evict the tenant by making out a ground for eviction nor would the expression include a building where the landlord has a right to stay till he is evicted. The Constitution Bench held that the object of the Act is to prevent unreasonable eviction of tenants. It cannot be said that the legislature considered it unreasonable for a landlord to shift to his own premises while he is in occupation of the tenanted premises over which he has not an absolute right of possession but only a right to remain in possession. 8. It cannot be said that the legislature considered it unreasonable for a landlord to shift to his own premises while he is in occupation of the tenanted premises over which he has not an absolute right of possession but only a right to remain in possession. 8. In Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 this Court held that the aspect of quality, size and suitability of the building cannot be totally put out of consideration else the purpose of the Act would be frustrated. 9. In G. Kaushalya Devi v. Ghanshyamdas3 it was held that the expression “to the possession of which he is entitled” would not mean possession otherwise than as an owner or in that capacity. Tenanted premises in which the landlord was already having his business and hence of which he was in possession and another shop purchased by the mother of the landlord with the amount loaned by him were held not to be buildings which could disentitle the landlord from seeking an order to be put in possession of the tenanted building. 11. It was submitted by the learned counsel for the appellant that the respondent's requirement cannot be said to be bona fide. It was submitted that a Full Bench of the Andhra Pradesh High Court rendered its decision in Vidya Bai v. Shankerlal4 on 24-9-1987 wherein the Court took the view that availability of a non-residential building belonging to a joint family was a relevant factor for denying recovery of possession by the landlord under Section 10(3)(a)(iii) of the Act and shortly thereafter on 24-6-1988 the late father of the respondent executed and registered the deed of settlement conferring title on the respondent. In the year 1991, the father of the respondent died and then the present proceedings were initiated by the landlord. This shows that exclusive ownership over the suit premises vesting in the respondent landlord is a manipulation pointing out to the mala fides. Suffice it to observe that it is too far-fetched an inference to draw that the object behind execution of the registered deed of settlement was the eviction of the appellant tenant, more so, when there is no material available on record to base such an inference. The execution and registration of the deed of settlement is not disputed. Suffice it to observe that it is too far-fetched an inference to draw that the object behind execution of the registered deed of settlement was the eviction of the appellant tenant, more so, when there is no material available on record to base such an inference. The execution and registration of the deed of settlement is not disputed. In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal. It is pertinent to note that no member of the family adversely affected by the deed of settlement has chosen to lay any challenge to it. Incidentally, it may be noted that the Full Bench decision in Vidya Bai case4 was cited with approval before a two-Judge Bench of this Court in D. Devaji v. K. Sudarashana Rao5. However, the correctness of the decision of this Court in D. Devaji case5 was doubted by another two-Judge Bench (see Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co.6) whereafter the matter came to be considered by a three-Judge Bench in Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 In D. Devaji case5 the view taken by this Court was that the landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature was that the landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover a possession of another non-residential building belonging to him by evicting the tenant therefrom. In Boorgu Jagadeshwaraiah case2 the three-Judge Bench held that the view so taken in D. Devaji case5 was an extremely narrow and literal construction placed on the provision which had the effect of scuttling the intention of the legislature. The view of the law taken by the High Court of A.P. in Vidya Bai case4 becomes, therefore, of doubtful authority." 3. One other decision of this court reported in 2000-3-L.W.901 [Nazeer vs. N.T.Thayammal] also could be fruitfully cited: "9. The view of the law taken by the High Court of A.P. in Vidya Bai case4 becomes, therefore, of doubtful authority." 3. One other decision of this court reported in 2000-3-L.W.901 [Nazeer vs. N.T.Thayammal] also could be fruitfully cited: "9. The question whether building is required for bona fide own occupation of landlady or not is purely a finding of fact. Both the authorities below have found that landlady is not having any building of her own and she is now residing along with her relatives and her claim is bona fide. Landlady has asserted that she intends to occupy the scheduled building since her relations are also residing closeby. Even during the lifetime of her husband, she was residing with one Putta Gounder and after his death, she went and resided with her brother-in-law temporarily. Now, she is residing with some of her relatives. It is clear from the evidence that only because she is not in a position to occupy scheduled building, she had to reside along with others. A feeling that one is under his own roof and as of right, is a comforting only duly recognised and protected by law and legal institutions. Even if one need not be apprehensive that a close relation like a father or mother, brother or sister may not drive him out of the house owned by any of them, the need felt by the individual to have a separate establishment is a perfectly justified one. Landlady wants to occupy her own building and there is nothing to doubt her bona fide claim." 12. In 1969 K.L.T.133 [Sarada v. Kumaran] a similar question arose for consideration where landlord wanted to make use of building for own occupation for the purpose of converting the same as pathway. Learned Judge in that case held that occupation does not necessarily mean residence. A owner can occupy the building in any manner. Learned Judge said that converting of existing building into a pathway for the use of landlord is also a need and coming under bona fide own occupation. Once landlord gets possession of the building for his own occupation it is not the concern of the court whether it is used as it is or after reconstruction or after making material alterations in the same. 13. Once landlord gets possession of the building for his own occupation it is not the concern of the court whether it is used as it is or after reconstruction or after making material alterations in the same. 13. Similar view was taken in the decision reported in 1987(1) K.L.T.671 [Devaky v. Krishnankutty), wherein it is held thus: "Once the landlord establishes that he bona fide requires the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations". 14. Once it is found that the claim of landlady is bona fide, inconvenience or lack of amenities is a matter in which tenant has no say. It is for landlady to look out whether the building is sufficient or whether it should be used after making such alteration, etc." 12. A plain reading of those precedents would show that it is the duty of the authorities under the Tamil Nadu Buildings (Lease and Rent Control) Act, to see as to whether there is any bonafide requirement on the part of the landlord in seeking eviction of the tenant on the ground of personal occupation. In this case, the landlord required the premises for his son's business, so to say, for enabling his son to have pawn broker shop in the premises. It is also a fact that in the building concerned there are six shops and no doubt the landlord had picked and chosen the shop in which the tenant is occupying the premises for his business. 13. Trite, the proposition of law, is that it is the prerogative of the landlord to choose any one of his premises for personal occupation and the tenant cannot dictate terms. Only one point is required to be seen as to whether as on the date of the filing of the RCOP, in the said building other than the demised premises, any shop premises was vacant. On the one hand, the tenant would state that there was one shop premises vacant in the first floor of the same building, however, P.W.1 the landlord would deny and refute such a contention on the part of the tenant. On the one hand, the tenant would state that there was one shop premises vacant in the first floor of the same building, however, P.W.1 the landlord would deny and refute such a contention on the part of the tenant. He would explain by pointing out that his one other son was carrying on oil business in the same building and in connection with such oil business, the alleged vacant shop premises was occupied by him as a godown. As such there is no clear evidence that despite the landlord having been in possession of a vacant shop premises other than the demised premises, he has picked and chosen the premises of the revision petitioner/tenant for being evicted. Both the Courts below au fait with law and au courant with facts based on evidence, held that there was nothing to show that the landlord actuated by malafide intention or ill will, did choose to file such an application for eviction. This Court being the revisional Court, would not be justified in interfering with the finding of facts of the Courts below, when there is no perversity or illegality in it. As such considering pre et contra, I am of the view that no interference with the order of the lower Court is warranted and accordingly, this revision petition is dismissed. 14. On hearing the judgment, the learned counsel for the petitioners/tenants would make an extempore submission that a year and half may by given so as to enable the tenant to find an alternate accommodation, as holus bolus he would not be able to find a non residential premises for carrying on his business in textiles. 15. I could see considerable force in the submission made by the learned counsel for the petitioners. Accordingly, time is granted to the tenants till the end of November 2013 to vacate and hand over possession to the landlord, subject to payment of past arrears of rent, if any, and also future rent regularly without any default. An affidavit to that effect shall be filed within a period of fifteen days from this date. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.