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Madras High Court · body

2016 DIGILAW 1594 (MAD)

S. Ramakrishnan v. agoor Meeral

2016-04-21

V.M.VELUMANI

body2016
ORDER : The Civil Revision Petitions are filed against the fair and decreetal order passed in R.C.A. No. 4 of 2012 dated 12.06.2015 on the file of Rent Control Appellate Tribunal (Sub Court), Ambasamudram confirming the fair and decreetal order passed in RCOP No. 3 of 2008 dated 25.06.2012 on the file of the Rent Controller (Principal District Munsif), Ambasamudrram. 2. The revision petitioner is respondent/tenant in RCOP No. 3 of 2008. The respondent is landlord, petitioner in the said RCOP. The respondent filed RCOP for eviction of petitioner from the petition premises, on the grounds of wilful default and owner's occupation. 3. The petition premises is non residential building which originally belonged to husband of respondent. The petitioner and respondent's husband entered into rental agreement on 06.02.1996. The petitioner became a tenant on monthly rent of Rs.200/-. As per the agreement, the petitioner must pay monthly rent, on or before 5th of every month and after expiry of 10 years, must vacate and deliver vacant possession. The respondent's husband settled the petition premises on the respondent. The petitioner attorned the tenancy in favour of the respondent. The petitioner defaulted in payment of monthly rent and failed vacate and deliver vacant possession, after expiry of 10 years. The petitioner damaged the flooring of the petition premises. The respondent required the petition premises for owner's occupation for the tailoring business of her son and daughter. The respondent filed RCOP No. 3 of 2008 for eviction of petitioner. 4. The petitioner filed counter statement and contended that he became a tenant under respondent's husband on amonthly rent of Rs.200/-. The rent was periodically increased and during December 2007, the monthly rent was Rs.350/-. From January 2008, the monthly rent was increased to Rs.375/-. The petitioner has paid Rs. 7,000/- as advance and spent Rs.1,00,000/- to install machineries for his flour business and obtained Three Phase Electricity connection. The respondent threatened to evict the petitioner with the help of Goondas. The petitioner filed O.S. No. 32 of 2008 for injunction restraining the respondent from interfering with his possession. 5. The respondent refused to receive the monthly rent sent by Money Order and failed to give her Bank account. The petitioner filed RCOP No. 2 of 2008, under Section 8(5) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, for permission to deposit the rent. 5. The respondent refused to receive the monthly rent sent by Money Order and failed to give her Bank account. The petitioner filed RCOP No. 2 of 2008, under Section 8(5) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, for permission to deposit the rent. As per the orders of the Court, he is depositing the rent. The petitioner has not damaged the flooring of the petition premises. The allegation that respondent requires the premises for owner's occupation is not bonafide. She has not stated so in the petition. Next to the respondent house, there is a vacant site belonging to the respondent which she can use for business purposes. 6. The learned Rent Controller framed necessary points for consideration. 7. The respondent was examined as PW.1 and marked and marked 17 documents as Ex.P1 to Ex.P17. The petitioner was examined as RW.1 and marked 3 documents as Ex.R1 to R3. 8. The learned Rent Controller considering the pleadings, evidence and arguments held that petitioner did not commit any default and did not damage the petition premises and that claim of the respondent for owner's occupation is bonafide and allowed RCOP No. 3 of 2008, ordering eviction of petitioner. 9. The petitioner filed RCA No. 4 of 2012, against order of eviction, dated 25.06.2012 made in RCOP No. 3 of 2008. The learned Appellate Judge, after framing the points for consideration dismissed the RCA, after considering all the materials on record, the Judgments relied on and arguments of the learned counsel for the parties. 10. Against the order dated 12.06.2015 made in RCA No. 4 of 2012 confirming the order dated 25.06.2012 made in RCOP No. 3 of 2008, the present Civil Revision Petition is filed. 11. The learned counsel for the petitioner contended that :- (i) The Courts below failed to see that there is no necessary pleadings with particulars for owner's occupation. (ii) The Courts below ought to have rejected the evidence of respondent with regard to requirements of building for tailoring business in the absence of pleadings. (iii) The Courts below having held that there is no wilful default ought to have dismissed the RCOP for eviction holding that requirements of owner's occupation is not bonafide. (iv) The respondent did not produce any document to substantiate the claim of owner's occupation and skill of her children carry-on tailoring business. (iii) The Courts below having held that there is no wilful default ought to have dismissed the RCOP for eviction holding that requirements of owner's occupation is not bonafide. (iv) The respondent did not produce any document to substantiate the claim of owner's occupation and skill of her children carry-on tailoring business. (v) The respondent failed to prove the alleged damages to the petition premises which shows that the respondent's claim for owner's occupation is not bonafide. (vi) The petitioner was forced to file a suit for injunction as respondent tried to forcibly evict the petitioner. (vii) The Courts below failed to consider the relationship of the petitioner/tenant before eviction. Therefore, prayed for set aside the orders of Courts below. 12. In support of his contention, the learned counsel appearing for the petitioner relied on the following Judgments:- (i) 1998(2) MLJ 50 SC (S.J. Ebenezer Vs. Velayudhan and others), relevant para 10, wherein it has been held as follows:- 10. After coming to that conclusion and finding that the schedule building was the only building exclusively belonging to the landlord, the appellate Authority found that the requirement was Bona fide. The Appellate Authority on the other aspect, Namely, the acquisition by the Town Planning Authority took note of the fact that the authorities concerned have issued the declaration under Section 6 of the Land Acquisition Act and thereby expressed their final decision to proceed with the acquisition. Therefore, there was necessity for the landlord to seek eviction of the appellant from the schedule building. The contention advanced on behalf of the tenant that there was no probability of the authorities proceedings with the acquisition was not accepted buy the Appellate Authority. It was also the view of the Appellate Authority that in rent control proceedings the pleadings need not be as elaborate as in normal civit suits. The pleading that he required the schedule premises for his own residence and for other affairs sufficient on the facts of this case, On these findings, the Appellate Authority reversed the order of the Rent Controller and ordered eviction of the tenant. While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon, the landlord to establish that he genuinely required the accommodation for the purpose of starting or continuing his own business (vide Mattulal Vs. Radhe Lal, (1974) 2 SCC 365 ). The Appellate Authority has not followed the above test before giving the finding on the question of bona fide need of the landlord. (ii) 2015(1) MWN (Civil) 572 (C. Jebaraj Mani Vs. Rajkumar Gnanamuthu), relevant Para Nos. 16 and 20, wherein it has been held as follows:- 16. It is well settled that quoting of wrong provision of law will not be fatal for the relief being granted to the landlord. From the counter filed by the tenant and evidence let in by him, it is clear that he understood the claim of additional accommodation of landlord. Therefore, the contention of the learned counsel for the petitioner/tenant that the tenant was unable to defend the petition effectively is untenable. 20. Both the learned Rent Controller and the learned Appellate Authority erred in ordering eviction on the ground of additional accommodation. The admitted facts clearly show that the portion under occupation of landlord and the portion under occupation of the tenant are not in the same building. Both the learned Rent Controller and the appellate authority after recording the fact that there is a gap of 100 feet between the two properties and they are very near to each other, committed irregularity in ordering eviction on the ground of additional accommodation. The Courts below committed an illegality in not considering Section 10(3)(c) of the Act in proper perspective, which can be invoked only when the landlord and the tenants are occupying portions in the same building namely, one unit. For the above illegality and irregularity, the orders of the Courts below ordering eviction on the ground of additional accommodation is set aside. (iii) 1996(2) LW 494 (G.R. Ragupathy Vs. Dr. K. Sankar, rep. by Dr. K.G. Ashok kumar, Power Agent), relevant Para Nos.7 and 8, wherein it has been held as follows:- 7. For the above illegality and irregularity, the orders of the Courts below ordering eviction on the ground of additional accommodation is set aside. (iii) 1996(2) LW 494 (G.R. Ragupathy Vs. Dr. K. Sankar, rep. by Dr. K.G. Ashok kumar, Power Agent), relevant Para Nos.7 and 8, wherein it has been held as follows:- 7. The main contention put forward by learned counsel for the petitioner (tenant) is that the pleading in paragraph 7 of the petition in this case is lacking in details, and the statutory grounds enabling the petitioner to seek eviction are not put forward, and, therefore, for that reason itself, the eviction petition has to be rejected.... 8. I cannot agree with the said submission of the learned counsel for more than one reason. The contention of lack of pleadings was not raised before the Authorities below, and I further find that the lack of pleadings, if any has not prejudiced the case of the tenant, petitioner herein, in any way. The object of pleading is only to put the parties on notice, of the real matter in issue but if the parties are already aware of the real matter in issue and they have also joined in issue over the same, the lack of pleadings can never be treated as a ground to reject the claim. Pleadings before Rent Controller cannot be given that much form pittance given to pleadings in a suit before Civil Court. Proceeding before a Rent Control Court summary in nature and the provisions of the code. of Civil Procedure are not fully made applicable to the extent provided under the statute We must further note that the Rent Control Court is not a Civil Court and the Act itself is more or less a self contained Code, so far as the relationship of landlord and tenant is concerned (iv) 1981 (3) SCC 103 , (Hasmat Rai and another Vs. Raghunath Prasad), relevant Para No.10, wherein it has been held as follows:- 10. Section 12 starts with a non-obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. Section 12 starts with a non-obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any other law and the right of eviction is made subject to the overriding provision of Section 12. It is thus an enabling section. In order to avail of the benefit conferred by Section 12 to seek eviction of the tenant the landlord must satisfy the essential ingredients of the section. The landlord in this case seeks eviction of the tenant under Section 12(1)(f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. The burden to establish both the requirements of Section 12(1)(f) is squarely on the landlord. And before an allegation of fact to obtain the relief required is permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. Ordinarily, therefore, when a landlord seeks eviction under Section 12(1)(f) the court after satisfying itself that there are proper pleadings must frame two issues namely (i) whether the plaintiff landlord proves that he bona fide requires possession of a building let to the tenant for nonresidential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-residential accommodation of his own in the city or town concerned. Without elaborating we must notice a well established proposition that any amount of proof offered without pleadings is generally of no relevance. 13. The learned counsel for the respondent filed counter affidavit and vacate stay petition and contended that :- (i) The respondent's son and daughter have taken training in tailoring business and she wants the petition premises for establishing the business for her children. (ii) The contention of petitioner that next to respondent's house there is a vacant site which can be used for business of respondent's children is untenable, as petitioner/tenant cannot dictate terms to landlord. (iii) The respondent has pleaded her requirement for owner's occupation and furnished the necessary particulars. (iv) The respondent has let in cogent evidence to prove the bonafide requirement of owner's occupation. (iii) The respondent has pleaded her requirement for owner's occupation and furnished the necessary particulars. (iv) The respondent has let in cogent evidence to prove the bonafide requirement of owner's occupation. (v) As per the provisions of the Act and well settled judicial pronouncements, the respondent's requirements of owner's occupation is presumed to be bonafide unless contrary is proved. (vi) The Courts below have considered all the evidence of the case in the proper perspective and ordered eviction. 14. In support of his contention the learned counsel for the respondent relied on the following Judgments:- (i) 2009(5) LW 363 (J. Josephine Christobell Vs. P. Subramanian), relevant para 7 and 9, wherein it has been held as follows:- 7. Therefore, it is evident that the petitioner is running her tailoring business in a rented premises and she does not have any other non residential premises available within the city to satisfy her requirement. The request of the landlord, who is already engaged in a commercial activities but in a rental building cannot be said to be not acting bona fide when she claims the tenancy premises of her own to satisfy her own requirement for continuing her tailoring business by shifting the same to the petition mentioned premises. 9. It is pertinent to point that in so far as the non residential building is concerned, the Act does not say that if the landlord owned more than one building, he or she would not be entitled to an order of eviction. It is entirely upon the petitioner/landlord to choose which building he or she would require for occupation for his or her sons to carry on their business. Therefore, I am unable to agree with the findings of the Rent Control Appellate Authority that there is no bona fide requirement of the petitioner to carry on the business. (ii) 1998(III) CTC 679 (Sarla Ahuja Vs. United India Insurance Company Limited), relevant Para No.14, wherein it has been held as follows:- 14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. (iii) 2002(2) LW 611 (S.V. Janardanam and another Vs. D. Kivraj Sowkar and 2 others), relevant Para Nos. 12 and 14, wherein it has been held as follows:- 12. What is required under the provisions of the Act is that the person, who seeks eviction of the tenant on the ground of Sections 10(3)(a)(i) in respect of residential premises and 10(3)(a)(iii) in respect of non-residential premises, has to prove that he is not owning any other property of the nature concerned and he requires the building for his own use and occupation. So far as the present case is concerned, these two ingredients have been proved to the satisfaction of the requirements of the Statutory provisions. It is the case of the petitioners in the petition that they have been residing along with their family in the rented premises with the parents. That has not been denied or any contra evidence has been adduced to that effect. As a matter of fact, it has been admitted by the respondents themselves in the evidence that the petitioners are residing in a rented premises along with their parents. It is also further curious to note that in his evidence, the respondent says that the premises in which the petitioners are living for a quite long number of years with their father and as a matter of fact, the petitioners were born and brought up in the same premises. That by itself cannot be a reason to non-suit the petitioners. The petitioners now grown up and also they married and having children. That by itself cannot be a reason to non-suit the petitioners. The petitioners now grown up and also they married and having children. In such circumstances, it is not for the respondents to say that the present residential building in which the petitioners are residing, though a rented premises, is convenient to the petitioners. 14. It is now well settled that when an application is filed under Section 10(3)(a)(i) and 10(3)(a)(iii) and the requirements of the provisions are satisfied, it is not for the tenant to say that the property is suitable or not suitable to the petitioners' requirement. Further when the landlord who owns the property filed an application under Sections 10(3)(a)(i) and 10(3)(a)(iii), the authorities under the Rent Control Act have to draw a presumption in favour of the bona fide requirement of the landlord. When such being the legal position and particularly when the requirement of the Section has clearly been made out in the petition, which has been corroborated by the oral testimony of P.Ws.1 and 2 and also further innocuously admitted in the evidence of R.W.1 to the effect that the petitioners are doing their business in a rented premises along with their father for the past ten to fifteen years, and they are having ex-perience in doing business and they have purchased the property, they are not owning any other property of either nature, I am of the considered view that the requirement is only a bona fide requirement. The word "mala fide" is not a meaningless jargon. It has its own connotations. The mala fide intention has to be gathered from the entire reading of the petition as well as the evidence adduced in support of the case of petitioners. If so gathered as stated above, it has to be concluded that the requirement of the petitioners is bona fide. 15. I have heard arguments of the learned counsel for parties and carefully perused all the materials on record and considered the judgments relied on by the counsel for the parties. 16. The points for consideration are:- (i) Whether the requirements of respondent for owner's occupation is bonafide? (ii) Whether the Courts below are correct in ordering eviction of petitioner on the ground of owner's occupation of respondent? 17. 16. The points for consideration are:- (i) Whether the requirements of respondent for owner's occupation is bonafide? (ii) Whether the Courts below are correct in ordering eviction of petitioner on the ground of owner's occupation of respondent? 17. Points 1 and 2:- The respondent filed RCOP No. 3 of 2008 for an order of eviction of petitioner on the grounds of wilful default and owner's occupation. The petitioner filed RCOP No. 2 of 2008 for permission to deposit the rent into Court. The Rent Controller permitted the petitioner to deposit the rent into Court. In view of this fact, the Courts below held that petitioner has not committed any default. Similarly, the Courts below held that respondent failed to prove the damages alleged to have been committed by petitioner. The respondent has not filed any appeal against these findings. Hence, these findings have become final. 18. As far as the question of owner's occupation is concerned, the respondent has pleaded that petition premises is required for establishing the business of her son and daughter. The respondent let in evidence to show that her son and daughter have training in tailoring. The contention of the petitioner that respondent did not plead for owner's occupation and did not furnish the details is contrary to pleadings and evidence and hence, not entitled to evict the petitioner is untenable. 19. Secondly, the contention of the learned counsel for the respondent that claim of the respondent for owner's occupation is malafide on the ground that claim of wilful default and damages to petition premises were rejected is not acceptable . The respondent proved requirement of owner's occupation and Courts below have held that the requirement as bonafide requirement. The petitioner before the Courts below contended that respondent has another property next to her property and hence the plea of owner's occupation is malafide. The said contention has been rightly rejected as the tenant cannot dictate terms to the landlord and state that other property is better suited than petition premises. 20. The learned counsel for the petitioner relied on the Judgments and referred to above and contended that respondent failed to plead and furnish details with regard to owner's occupation and therefore, Courts below erred in ordering eviction. 20. The learned counsel for the petitioner relied on the Judgments and referred to above and contended that respondent failed to plead and furnish details with regard to owner's occupation and therefore, Courts below erred in ordering eviction. On the other hand, the learned counsel for the respondent relied on the Judgments and contended that petitioner aware of the issue with regard to claim of respondent that petition premises is required for her own occupation for establishing tailoring business of her son and daughter and both the parties have let in evidence. Therefore, the Courts below have rightly considered this issue on merits and decided the same in favour of the respondent and there is no error in the said finding. This contention of the learned counsel for the respondent has considerable force. 21. The petitioner as well as respondent let in evidence with regard to claim of owner's occupation. The petitioner has alleged that respondent owns another vacant site next to her house which is more suitable to the business of the son and daughter of respondent rather than petition premises. It is well settled that quoting wrong provision of law or not quoting provisions of law or not furnishing the details of claim in rent control proceedings will not be fatal to the claim of petitioner. The Judgments relied on by the counsel for the petitioner do not advance the case of the petitioner. On the other hand, the Judgments relied on by the learned counsel for the respondent are squarely applicable to the facts of the present case. 22. The Courts below have considered all the materials and the law in the proper perspective and ordered eviction. There is no reason or circumstances warranting interference by this Court. In the result, the Civil Revision Petition is devoid of merits and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.