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2014 DIGILAW 4349 (MAD)

D. Thandapani v. N. R. P. Kandhasami

2014-11-19

K.KALYANASUNDARAM

body2014
ORDER This revision is directed against the order passed in RCA.No.559 of 2011 by the VII Judge, Court of Small Causes, Chennai. 2. The petitioner in this revision is the tenant. The respondent filed a petition in RCOP.No.1968 of 2009 against the petitioner seeking eviction on the ground of own use and occupation. The respondent has contended that the petition premises was let out at month of Rs.750/- to carry on oil business. He was planning to purchase a car and so he requested the tenant to vacate the premises by the month of July 2008, for parking his new car in the said premises and the tenant also promised that he will vacate the premises by July 2008. 3. The landlord bonafidely believed and trusted the respondent and purchased a new car (Wagon R) in the month of August 2008, but the tenant did not vacate the premises and thereby he was compelled to park the car at a rented parking lot in No.97 and 98 Avadhanam Pappier Road, Choolai, Chennai and he had paid Rs.5,000/- as advance and agreed to pay parking charges Rs.1,000 per month. It is further contended that the schedule mentioned premises is required for parking his vehicle as ingress and regress will be easy. 4. The tenant filed his counter resisting the claim of the landlord. The tenant has stated that the landlord demanded enhanced rent of Rs.1,500/- from the month of August 2008 but the tenant has expressed his inability to pay the said huge hike and offered to pay a sum of Rs.900/-. Since the landlord refused the same the tenant was forced to sent the same through money order for the month of August and the landlord also received the same. Only thereafter, the landlord issued a notice dated 23.10.2009 for which the tenant has issued a suitable reply dated 05.09.2009 and nearly one year thereafter, the landlord file the eviction petition. The tenant has further stated that the petition premises is not required for parking the petitioner's vehicle and on the eastern side of the petition premises there are two big gates and on the southern side of the rear portion of the stair case leading to the first floor, in between these two places there is enough open space available for parking car. In short the tenant has contended that the petition was filed with an oblique motive to evict the tenant some or other. 5. Parties have adduced oral and documentary evidence. The learned Rent Controller on appreciation of the evidence held that the requirement of the tenant (sic - landlord) is bonafide and ordered eviction. Aggrieved by the order, the tenant filed an appeal in RCA.No.559 of 2011 before the Rent Control Appellate Authority (VII Court of Small Causes, Chennai). The Appellate Authority concurred with the finding of the Rent Controller and dismissed the appeal. Aggrieved by the order the present revision is filed. 6. Mr.V.Avudainayagam the learned counsel for the petitioner submitted that the tenant is carrying on rental business in the petition premises, and that the landlord requested the premises for parking his car, but there is no pleading as per Section 10(3)(a)(2) of the Tamil Nadu Building (Lease and Rent Control) Act. The tenant has been in possession of petition premises from the year 1975, the respondent had purchased the property in the year 2004. The learned counsel further submitted that there is no bonafide requirement of the landlord in seeking eviction of the petition premises which could be seen from the pleadings of the landlord itself. It is admitted by the landlord that the tenant were sending rent through money order for the month of August and October 2008 and only on 23.10.2008 the landlord issued notice and one year thereafter he filed the petition for eviction. 7. Per contra, the learned counsel for the respondent submitted that the landlord need not reproduce the exact words contained in Section 10(3)(a)(2) of the Tamil Nadu Building (Lease and Rent Control) Act and the parties have understood the requirement of the landlord and they have also let in evidence. It is further submitted that the landlord has discharged his burden and proved that building is required for parking his car and therefore the burden shifts on the tenant. The tenant has to establish that the space is not suitable for parking a car. The learned counsel further submitted that the tenant cannot dictate terms to the landlord where he should park his vehicle. Mr.N.D.Bahety learned counsel for the respondent has relied upon the judgments in 2013 (6) MLJ 372 ; 1986 (1) MLJ 291 ; 1999 MLJ(Supp) 389 in support of his contention. 8. The learned counsel further submitted that the tenant cannot dictate terms to the landlord where he should park his vehicle. Mr.N.D.Bahety learned counsel for the respondent has relied upon the judgments in 2013 (6) MLJ 372 ; 1986 (1) MLJ 291 ; 1999 MLJ(Supp) 389 in support of his contention. 8. The learned counsel for the petitioner in reply would submit that the judgments relied upon by the learned counsel for the respondent are not applicable to the facts of this case. It is further submitted that the Tamilnadu Building Lease and Rent Control Act was enacted with an object to protecting the tenants from any lawful eviction from the landlord. It is further contended that the landlord also filed an application for fixation of fair rent and the tenant has been paying the fair rent fixed by the Rent Controller and there is no arrears as on date. 9. It is seen from the records that the landlord has pleaded in the eviction petition that he requires the petition premises for parking his new car. The landlord has given evidence stating that he purchased new car on 13.08.2008 and produced xerox copy of the receipt. Ex.P2 and Ex.P3 would show that the landlord has been parking his car in a rented premises. The tenant has also admitted in his evidence that the landlord has purchased a new car and he has parked the vehicle in a rented premises. The only contention is that there is open space available adjacent to the tenanted premises and the landlord can park his car in the open space. PW 1 has admitted in his evidence that there is a open space available at the length of 40ft., but further deposed that in the open space 15 two-wheelers have been parked. However, the Appellate Authority on appreciating the evidence of PW 1 and Ex.P2 and P3 held that the requirement of the petition premises is bonafide and ordered eviction. 10. In a similar situation this Hon'ble Court had an occasion to consider the bonafide requirement of the landlord for parking his car. In Mrs.Thangam vs. P.K.Madhavan reported in 1986 (1) MLJ 291 this court has held as follows; "The scope and effect of this Sub-clause came to be considered in Jawanthraj Mehta v. Ramachandra Chetty (Summary of rent cases). 10. In a similar situation this Hon'ble Court had an occasion to consider the bonafide requirement of the landlord for parking his car. In Mrs.Thangam vs. P.K.Madhavan reported in 1986 (1) MLJ 291 this court has held as follows; "The scope and effect of this Sub-clause came to be considered in Jawanthraj Mehta v. Ramachandra Chetty (Summary of rent cases). Natesan, J. has held in that case that What is envisaged under Section 10(3)(a)(ii) is not only a non-residential building, which is already used for the purpose of keeping a vehicle, but also a building which can be adapted for such use. The ratio in this case has been followed by Govindan Nair, C.J. in Panduranga Padayachi v. Dhanakoti Ammal and Anr. (1978) T.N.L.J. 54. It, therefore, follows that the shed in the occupation of the respondent need not be acutally used as a garage at the time the petition is filed. It may either be used as a garage or alternatively, it may be of such structural design that it can be used as a garage with certain adaptations. It is not the case of the respondent that the shed occupied by him cannot be used as a garage with certain adaptations. If the wooden partition etc., put up by him are removed, the shed can certainly be used as a garage. The Appellate Authority was, therefore, wrong, to holding that the petitioner must prove that the shed is being used as a garage in presents and furthermore the Sub-clause does not extend to a building, Which cannot be used without suitable adaptations being made." 11. In Pitchaipillai vs. Dominique Marie Ignace Prosper reported in the landlord sought eviction on the ground that he is to keep his motor vehicle in the schedule premises. This court has held as follows; "I do not think the said contention can be accepted, in view of the provisions contained in Section 10(3)(a)(ii) of the Act where the wordings are entirely different. In fact, the different nature of the building or initial character of the building that need not be considered. The relevant portion of the Act reads thus :- "A landlord may, subject to the provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the building. In fact, the different nature of the building or initial character of the building that need not be considered. The relevant portion of the Act reads thus :- "A landlord may, subject to the provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the building. In case, it is a nonresidential building, which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own." 12. In Indira Devi vs. G.Suresh HUF rep. by its Kartha G.Suresh reported in (2013) 6 MLJ 372 this court has held as follows; "14. Learned counsel appearing for the respondent submitted that the evidence available on record would show that the there is no suitable place for the landlord for parking the vehicle, hence, he is parking the vehicle only in a rented premises near by the RCOP. Premises. The aforesaid factum has been established by the respondent/landlord. 15. The contention of the revision petitioner that the respondent is having other building in the city of Chennai where the vehicle could be parked. However, there is no details from the revision petitioner as to where the respondent has alternate parking area for his car, similarly he has not stated whether such area is nearby or far away from the RCOP. premises. The respondent/landlord has also disputed the allegation of availability of alternate car parking area. 16. It is a well settled proposition of law that a tenant could not dictate terms to the landlord, if his bonafide requirement is established. 17. In the revision this Court cannot re-appraise the evidence and interfere with the concurrent finding. Unless the finding is perverse, this Court cannot interfere with the impugned judgment and decree, if there is concurrent finding. The contention of the respondent/landlord is that there is no other suitable place available to the petitioner to park his vehicle. If the requirement of the landlord is bonafide, he is entitled to seek eviction of the tenant under Section 10(3)(a)(ii) of the Act. The contention of the respondent/landlord is that there is no other suitable place available to the petitioner to park his vehicle. If the requirement of the landlord is bonafide, he is entitled to seek eviction of the tenant under Section 10(3)(a)(ii) of the Act. Admittedly the premises was given to the petitioner for non residential purposes and there is no allegation of wilful default." 13. In the case on hand the Rent Controller without proper appreciation of evidence has dismissed the eviction petition but the Appellate Authority on appreciation of evidence of PW 1 and Ex.P2 and Ex.P3 has held that the requirement is bonafide. 14. In Hindustan Petroleum Corporation Ltd., Vs. Dilbahar Singh reported in 2014 (5) CTC 217 it has been held that; "We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 15. In view of the judgments referred supra I am of view that in exercising power under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act, this court cannot re-appreciate the evidence to come to a different conclusion. Hence I do not find any merits in this case. The tenant is given nine months time from today to vacate and hand over the petition premises to the landlord. The tenant shall file an affidavit to that effect within a period of one week and further the tenant shall pay rent regularly till possession is handed over to the landlord. With the above observation, this civil revision petition is dismissed. No cost.