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2014 DIGILAW 997 (MAD)

S. Prabhulingam v. N. Dilli

2014-04-27

N.KIRUBAKARAN

body2014
Judgment 1. The tenant who lost both trial court as well as appellate court is before this Court challenging the order of eviction passed on the ground of Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for additional accommodation. 2. The facts of the case are as follows: The respondent who is the owner of the premises at Old Door No.6, New Door No.9, Paper Mills Road, Perambur, Chennai-600 011 let out the shop portion to the petitioner on a monthly rent at present at the rate of Rs.2,300/-. The tenant paid an advance of Rs.25,000/-. Alleging that the petitioner committed wilful default from 2002 to May 2007, the respondent issued notice on 18.5.2007. After receipt of reply notice dated 30.5.2007 from the petitioner, the respondent approached the Rent Controller and filed a petition under Section 10(2)(i) and 10(2)(c), namely, for wilful default and additional accommodation. After enquiry, the Rent Controller came to a conclusion that there was no wilful default on the part of the petitioner herein and rejected the said ground, however, the court ordered eviction on the ground of additional accommodation finding that the adjacent shop is occupied by the respondent herein and is doing business in the name of Iswarya Xerox Centre and the respondent requires the portion occupied by the petitioner for his own occupation. While ordering eviction on that ground, the learned Rent Controller took into consideration the owning of two properties by the petitioner herein in the same road viz. Nos.267 and 268, Papers Mill Road and No.271/2 Paper Mills Road, Chennai-11. The same properties are obtained by the petitioner through Ex.P.5 and Ex.P.6 Sale Deeds which are all admitted by the petitioner himself in oral evidence. When the petitioner/tenant is owning two other properties in the same road and the respondent landlord already occupied a shop adjacent to the petitioner premises and doing business in the name of Iswarya Xerox Centre, necessarily the adjacent portion alone is required for his expansion of business. Though the learned Counsel for the petitioner would point out that other three shops are also vacant, it is always the prerogative of the landlord to choose the premises and ordered eviction. 3. Though Mr. Though the learned Counsel for the petitioner would point out that other three shops are also vacant, it is always the prerogative of the landlord to choose the premises and ordered eviction. 3. Though Mr. Kumaresan, learned Counsel for the petitioner would point out that as per proviso to Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the comparative hardship has not been taken into consideration and no finding was given by the learned Rent Controller, the very finding of the Rent Controller that the petitioner is owning two properties in the same road and he can shift the business to his premises itself is the finding on comparative hardship. Moreover in paragraph 19 of the order of the Rent Controller, it has been held that the advantage caused to the respondent will be more when compared to the hardship which would be caused to the petitioner herein and thereafter came to the conclusion that eviction has to be ordered. 4. Mr. Kumaresan, the learned Counsel for the petitioner would further rely on a decision of this Court in M/s. Bhagwan Chand and Co., rep. by its Proprietor Mr. B. Chandanmull, Door No.47, Narayana Mudali Street, Chennai-600 079 vs. Utham Chand and others reported in 2006(1) TLNJ (Civil) 537 wherein it has been stated that the requirement of additional accommodation of 1000 sq.ft. by the landlord is not bona fide when the tenant has occupied only 240 Sq.ft. This Court is afraid that the said judgment does not lay down the correct law because the Hon'ble Supreme Court in Deep Chandra Juneja vs. Lajwanti Kazhuria (Smt)(Dead) through Legal Representatives reported in 2008 (8) SCC 497 and in Prativa Devi vs. T.V. Krishnan reported in 1996 (5) SCC 353 declared that the landlord is the last judge of his requirement. That apart, it is admitted by the petitioner in his oral evidence that the portion occupied by him is adjacent to the landlord's shop. When that is the case, the landlord can only ask for adjacent portion that too in the ground floor. Therefore, the order passed by the trial court as confirmed by the appellate court cannot be interfered with. 5. When that is the case, the landlord can only ask for adjacent portion that too in the ground floor. Therefore, the order passed by the trial court as confirmed by the appellate court cannot be interfered with. 5. A perusal of the appellate court judgment would also show that in paragraph 10, the learned Appellate Judge observed that the respondent bonafidely requires the portion in occupation of the petitioner because that portion alone is adjacent to the respondent's portion. Moreover, in paragraph 11 of the Appellate Court judgment, the appellate court took into consideration the owning of two properties by the petitioner and by vacating the premises, no hardship would be caused to the petitioner. It is also observed that by putting little efforts and spending a few thousand rupees, the petitioner can get a shop on rent in the same locality. Even if any hardship is caused that will not outweigh the benefits which would accrue to the respondent and confirmed the order of the Rent Controller. Thus the comparative hardship may rightly considered as per the judgment of the Hon'ble Apex Court in Badri Narayan Churilal Bhutoda Vs. Govind Ram Gopal Murdada reported in 2003(2) SCC 320 . 6. It is also pointed out that at the time of issuance of Ex.P.1 Notice dated 18.5.2007 only wilful default alone was stated and only at the time of filing of the petition, the additional accommodation has been incorporated. First of all, there is no necessity for the landlord to issue a notice before filing of the eviction petition. If any default is there before filing of the petition, it is optional on the part of the landlord to issue a notice calling upon the tenant to pay the amount so that the filing of the petition can be avoided. Merely because he has issued a notice, it does not mean that it has to cover all the points in the notice itself. What is suffice is contained in the petition filed before the court. Therefore, the contention of the learned Counsel for the petitioner in this regard is rejected. 7. For the reasons stated above, the orders of the Rent Controller as confirmed by the Rent Control Appellate Authority is confirmed. The Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. 8. Therefore, the contention of the learned Counsel for the petitioner in this regard is rejected. 7. For the reasons stated above, the orders of the Rent Controller as confirmed by the Rent Control Appellate Authority is confirmed. The Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. 8. Though the learned Counsel for the petitioner seeks for two years time to vacate the premises, it is opposed by the learned Counsel for the respondent. 9. When this Court is about to pass orders granting six months time to the petitioner on condition to file undertaking affidavit, the learned Counsel for the petitioner does not want such benefit. In view of that, two months time granted by the learned Rent Controller to vacate the premises is given to the petitioner.