Madras High Court
Srinivasan And Another vs Santhana Selvaraj And Another on 10 August, 2000
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
ORDER
1. This Civil Revision Petition is directed against the order of the Appellate Authority under the Tamil Nadu Buildings Lease and Rent Control Act, herein after called 'the Act' made in RCA No.153/89 dated 3.11.99, rejecting the petitioners application for eviction on the ground that the claim for owner's occupation by the petitioners was not bona fide. Before reaching that conclusion, the learned Appellate Authority has also given a finding on one very vital issue viz., as to whether a subsequent purchaser of the petition premises can proceed to claim the relief claimed under the original petition by the erstwhile landlord on the ground of owner's occupation under Section 10(3)a(iii) of the Act. In respect of the said question, the Appellate Authority by relying upon the judgment reported in S.V. Chidambara Pillai v. Subramaniam Chettiar, 1989 (2) LW 412 and Arumugha Nakker v. Baladhandayuthapani, 1998 (1) LW 616 was of the view that while the subsequent purchaser was entitled to continue with the proceedings is however bound to prove his bona fide claim for seeking eviction on the ground of owner's occupation.
2. This revision petition has been filed challenging that part of the order of the appellate authority holding that the claim of the petitioners was not bona fide. However, the learned counsel for the respondent/tenant resisted in the first instance with the very formidable objection as to the very maintainability of the appeal proceedings itself by the Appellate Authority, in view of the legal hurdle, that the subsequent purchaser cannot be construed as a person, who is eligible to claim the relief made in the original application which was peculiarly personal to the erstwhile landlord, so as to enable him to continue the appeal proceedings. The learned counsel by referring to the definition of 'the Rent Controller', the provisions contained under Section 10 Sub section 2, Sub section 3. Section 14 and Section 23 of the Act contended that the consideration of the application filed under Section 10(2) and Section 14 of the Act will stand on entirely different footing than the one filed under Section 10(3) of the Act. Elaborating on that the learned counsel contended that Section 10(2) of the Act provide for eviction of a tenant on the ground of any default being committed at his instances. While the various grounds available for eviction under Section 30(3) of the Act related to the personal grievances of the land lord and that section 14 would come into operation with reference to any change to be carried out in respect of the very property itself. The learned counsel further contended that while an application filed for eviction under section 10(2) and 14 could possibly be continued even by the subsequent purchaser, the same will not be the case in respect of an application preferred under the provisions of Section 10(3) of the Act.
3. The learned counsel also submitted that though the Appellate Authority has held against the respondent, on the issue relating to the maintainability of the appeal proceedings by the subsequent purchaser, having regard to the rulings of this Honourable Court reported in K. Venkataramuni v. S. Aravamuthan, 1981 (1) MLJ 516 and Thirumalaiappa Gounder v. A.G. Kannappa Nadar, 1981 (1) MLJ (SN) 19 the respondent could still contend that the appeal ought to have been rejected by the Appellate Authority even on the main ground of very maintainability of the Appeal by the subsequent purchaser. The learned counsel would state that the subsequent purchaser filed applications before the Appellate Authority for getting themselves impleaded in the place of the erstwhile landlord that those applications were also opposed by the respondent on the very same plea that the subsequent purchasers were not competent to continue the proceedings launched by the erstwhile owner of the petition premises, that in respect of those proceedings Revision Petitions came to be filed in this Honourable Court, in which, though the subsequent purchasers were permitted to continue the proceedings, this Honourable Court, retained the respondent's right to agitate the position about the maintainability of the appeal itself to be urged, before the appellate authority while arguing the main appeal.
4. On a perusal of the orders passed in CRPNos.1735 of 1996, 711 of 1998 dated 22.7.96 and 24.7.98, I find that what has been permitted by this Honourable Court was only a continuation of the appeal proceedings by the subsequent purchasers, while, leaving open the question about the entitlement of the subsequent purchaser to claim the relief for eviction on the ground of owners occupation to be determined at the final stage. In such circumstances, I am of the view that the said question remained to be considered by the Appellate Authority and as a continuation of the said proceedings in this CRP the correctness of the findings of the Appellate Authority can be validity gone into. The judgments reported in Venkataramani v. S. Aravamuthan and others, 1981 (I) MLJ 516 K as well as the judgment of the honourable Supreme Court Ravinder Kumar Sharma v. State of Assam, supports the above position that the respondent herein is also entitled to urge those points which went against him in the Court below while deciding this CRP preferred by the petitioners.
5. As regards the question about the maintainability of the appeal proceedings, Mr. T.R. Rajaraman learned counsel for the petitioner, by relying upon various rulings of this Honourable Court contended that subsequent purchasers were entitled not only to continue the proceedings to its logical end, but also for claiming the main relief made in the original application by the erstwhile landlord. The learned counsel submitted that subsequent purchasers, namely the present petitioners filed necessary application before the Appellate Authority seeking for amendment of the main application in IA No.254 of 1996, by which paragraph 5 (a) was added to the main RCOP No. 189 of 1984 and that after the said amendment there was no scope for the first respondent to contend that the application was not maintainable. The learned counsel therefore, contend that when once suitable amendment was carried out to the main petition itself, there was no need or necessity for the subsequent purchaser to seek for eviction on the grounds of owners occupation by filing any independent Application and claim the relief right from the beginning. The learned counsel therefore, submitted that after me amendment to the main OP by way of adding para 5 (a), it is no longer open to the respondent to contend that the petition was not maintainable. There is also an additional counter filed on behalf of the first respondent to the amended plea raised in the main application. Further, in I.A.No.385 and 386 of 1996, the petitioners sought for permission to lead additional evidence in support of their bona fide claim and those applications, on being allowed, CRP No.711 of 1998 was preferred by the first respondent herein and the said revision petition was allowed by this Honourable Court with a direction to the effect that the said application should be disposed of alongwith the main appeal itself and that the same ought not to have been disposed of independently by virtue of the rulings of this Honourable Court, stated therein. It transpires that at the time of the disposal of the main appeal, additional evidence was permitted by the appellate Authority, when Ex.B 24 to 26 were marked on the side of the respondents, apart from examining the first respondent as RW-1 and the petitioners as PW-2 and PW-3. The Appellate Authority thus after considering the entire evidence, namely the one that was already available on record and the additional evidence, entertained by him, passed the order impugned in this CRP. The learned counsel for the petitioner therefore, contended that no prejudice was caused to the respondent by the manner in which the proceeding was disposed of by the Appellate Authority. The learned counsel relied upon Devonian v. Munirathanam, 1981 (I) MLJ 97; Chidambaram Pillai v. Subramaniam Chettiar, 1989 (2) LW 412; Shamugham v. M/s. Corona Sahu Co., Ltd., Bombay, 1991 (1) LW 349; Somaiah v. Vasudevan, 1996 (1) LW 407; Renganathan v. Pandurangam and another, 1995 (2) MLJ 505 in support of his contention that the petitioners were entitled to continue the original proceedings even from the Appellate Forum, eventhough, they were the subsequent purchasers. Learned counsel for the first respondent on the other hand by relying upon Shah Dhanaraj Kantilai v. Additional Judge, Court of Small Causes, Madras, 1949 (2) MLJ SN 28 a Division Bench judgment of this Hon'ble Court, which was subsequently followed in Syed Shafee v. S. Asmath Basha, 1988 (2) LW 261 contended that the continuation of the proceedings by the subsequent purchaser was not maintainable.
6. I have examined the rival contentions of the parties. I find considerable force in the contention of the first respondent in stating that the subsequent purchasers are not entitled to continue the claim raised in the main petition inasmuch as the claim was "peculiarly personal" to the erstwhile landlord, when he made the application for eviction on the ground of owners occupation, I too feel that unlike the application filed for eviction on the ground of wilful default, or on act of waste or on other grounds available to the landlord under Section 10(2) of the Act or on the ground of demolition and reconstruction as provided under section 14, an application filed under Section 10(3) of the Act stands entirely on a different footing which the subsequent purchaser may not be able to insist upon on the ground on which the relief was originally claimed, eventhough it may be started that the landlord might be permitted to continue with the proceedings to its logical conclusion. But, that is far different from saying that by merely permitting a subsequent purchaser to participate in the continuation of the proceedings it should be held that he is also legally entitled to maintain the claim for the relief based on the grounds on which relief was originally made particularly in an application filed for eviction on the ground of owners occupation. It is not a case of mere molding of the relief. As pointed out by the learned counsel for the first respondent the application for owners occupation when once made, it would depend upon the circumstances that were prevailing at the time when the application was made by the original owner. In such circumstances, to permit the subsequent purchaser to claim the very same relief at the Appellate stage would lead to other serious consequences, in the event of the subsequent purchaser continuing the proceedings at the Appellate stage though after getting necessary amendment to the pleadings and also after letting in additional evidence, still by virtue of any order being passed granting the relief at the Appellate stage, by sustaining the original order of eviction very valuable right of the tenant to loose one stage of appeal is a very serious consequence, whereas in the case of an eviction on the ground of wilful default, where irrespective of the change of the landlord, there will not be much scope for any alteration in the main cause of action based on which the original application was preferred. In the case of eviction on the ground of owners occupation, it will not be possible to proceed with the appeal on the evidence already recorded by the rent controller that is available on record, inasmuch as the claim for owners occupation by the subsequent purchaser could be and will have to be made entirely under different circumstances than the one that was available to the original owner. Therefore, I am unable to countenance the contention of the learned counsel for the petitioners that the Appellate Authority was justified in permitting the petitioners to claim the very same relief made by the erstwhile landlord at the stage of appeal proceedings based on the amended pleadings and additional evidence. In such circumstances, since there is deprivation of one stage of appeal provided under the Act to the respondent, which I feel that the tenant is legally entitled to in a proceeding launched under the provisions of the Act the respondent is well founded in his contention on the very maintainability of the Appeal. Further as pointed out earlier, the claim for eviction either under Section 10(2) or Section 14 stand on a different footing than the one filed under Section 10(3). While in the former case, the claim is made on the basis of the default of the tenant or on the basis of the inherent nature of the building, the latter was depended upon the personal volition of the owner himself. Therefore, while in the former cases, irrespective of the change of owner ship there will be no change in the cause of action, the same will not be the case in the case of the latter. Therefore, I am convinced that the subsequent purchaser will not be entitled to sustain the eviction claimed and ordered by the Rent. Controller in the Appellate stage which order was made entirely on the basis of the circumstances prevailed then at the time when the original application was made by the erstwhile owner. The judgment reported in Devarajan v. Munirathanam, 1981 (I) MLJ 97 was cited by the learned counsel for the petitioner in support of his contention that the petitioners were entitled to continue the proceedings. In my opinion, the said judgment rather than supporting the stand of the petitioner only supports the submission made by the counsel for the respondent. In paragraph 5 of the said judgment, the learned Judge after referring to the judgment reported in Shah Dhanaraj Kantilai V. Additional Judge Court of Small Causes, Madras, 1949 (2) MLJ 28 has held as under:-
" Though in that case, the landlord who applied for eviction on the ground of wilful default died and his son claimed the benefits of such default., it was held that the right to claim eviction was not something peculiarly personal to the father which could not survive him and it cannot be said that the deceased landlord's son could not claim the benefit of the default which accrued during the life time of his father. Though this decision was rendered with reference to the provisions of the Madras Buildings (Lease and Rent Control) Act (XV of 1946), the ration therein is applicable even to the present case where there is a devolution of interest, as the ground of eviction was not peculiarly personal to the predecessor-in-title of the respondent".
7. Therefore, applying the said principle, to the case on hand, I find that the claim here for eviction being "peculiarly personal" to the erstwhile landlord, the present petitioners cannot be permitted to claim the very same relief though on the same ground of owner's occupation but under different cause of action altogether. It is personal because, the original application for eviction preferred by the erstwhile landlord was on the ground that he was carrying on business in jewellery in a small premises hired from a third party by paying a huge amount of rent; that his business was prospering day by day, which necessitated bigger premises; that it was impossible to get another premises without paying lakhs of rupees by way of good will which he could ill-afford. The subsequent purchaser on the other hand though are doing the same line of business of jewelry in the same town, the claim is for eviction on the ground that they wanted to shift their business from the present premises. There is no averment even in the main OP as to what is the need or necessity for shifting nor is it stated that the petition premises is not sufficient to carry on their business. There is no averment also with reference to the monetary grievance expressed by the erstwhile owner. In fact, the reasons mentioned by the erstwhile owner was not even sought to be deleted from the main petition by seeking necessary amendment, therefore, such being the major difference in the very basis of the claim made before the rent Controller, I am afraid, permitting the subsequent purchaser, to claim the relief on the basis of the original petition will only lead to incongruities. I therefore come to the conclusion that the claim of the erstwhile landlord was peculiarly personal to him alone and the subsequent purchaser cannot be stated to have acquired those circumstances by merely purchasing the petition premises. I am therefore, of the view that by applying the principle set out in Shah Dhanraj Kantital v. Additional Judge, Court of Small Cause, Madras, 1949 (2) MLJ (SN) 26 as followed by the learned Single Judge in N. Devarajan, v. D.V. Munirathanam, 1981 (1) MLJ 97, the claim of the petitioners to maintain the original proceedings as well as the subsequent appeal cannot be sustained.
8. The learned counsel for the petitioner referred to S.V. Chidambaram Piliai v. S.N.V.R.N. Submmaniam Chettiar and others, 1989 (2) LW 412 for the proposition that the subsequent purchasers are entitled to continue the proceedings. That was a case where the question related to the impleading the purchaser of a building, at the instance of the vendor, who filed a petition under Section 14(1)(b) for demolition and reconstruction. When the said application was resisted on the ground that bona fide requirement of the purchasers have to be established and that the purchaser alone ought to apply for getting himself impleaded, the learned single Judge of this Court was pleased to hold that, the purchasers may have to establish their bow fide requirement of the premises for the purpose of demolition and reconstruction as contemplated under Section 14(i)(b) of the Act at the time of the trial. The learned Judge held that that is a matter which has to be considered at the time when evidence is let in by both the parties in the RCOP and that it was open to the tenant to contend and comment during the trial that the purchasers failed to prove their bona fides. As could be seen, that was a case where the very claim was based on Section 14(l)(b) for demolition and reconstruction and that the trial in the main RCOP was yet to commence. As held by me earlier, a claim for eviction on the ground of demolition and reconstruction under 14(i)(b) stands entirely on a different footing than the one arising under Section 10(3) of the Act. In my view, the claim arising under Section 10(3) of the Act would be purely personal and cannot be made available to the subsequent purchaser. Therefore, the said judgment is also not applicable to the facts of this case. More over, it is not the case that the petitioners are not entitled to pursue the proceedings. The question is whether they are entitled to sustain the relief claimed by the original owner which was made entirely under different circumstances. The petitioners are therefore, unable to draw any support from the said judgment to the effect that the petitioners could continue to claim the relief prayed by the erstwhile landlord. In my view, at best it can be said that the petitioners can continue the proceedings to its logical end and not beyond.
9. The other judgment submitted by the learned counsel for the petitioner is the one reported in Shanmugam v. M/s. Corana Sahu Co., Ltd., Bombay, 1991 (1) LW 349. Here, it was a case where at the execution stage, when the purchaser wanted to come on record. It was held that the same was maintainable. In my view, the ration of the said decision is not applicable to the facts of this case. Equally, the judgment reported in S. Somaiah, S. Vikraman v. S.P. Vasudevan, , was also a case where subsequent purchaser moved for the first time an application for eviction on the ground of owner's occupation, it was held that the lack of bona fides on the part of the vendor in an earlier proceedings cannot be put against the subsequent purchaser in his application for owners occupation. The ration of the said judgment has no application to the facts of this case.
10. The learned counsel also relied upon the judgment reported in Renganathan v. Pandurangam and another, 1995 (2) MLJ 505. In that case, the question was whether the subsequent purchaser was entitled to file an application to restore a petition which was dismissed for default. In that context, His Lordship was pleased to hold that though the subsequent purchaser can file a separate petition for eviction, that was not the only remedy recognised in law and he can get himself impleaded or he can continue the earlier proceedings and thus shorten the litigation. The learned Judge has also observed that the question whether the same cause of action arises on the Rent Controller can take note of the subsequent events of the matters are not to be considered at that stage. Therefore, by applying the said ruling also it has to be held that the claim of the original owner being peculiarly personal, the subsequent purchasers, viz., the petitioners cannot be held to be entitled to claim the relief made in the original petition by the erstwhile landlord. One other Judgment, relied upon by the learned counsel for the petitioner is Syed Shafee and another v. S. Asmath Basha and another, 1988 (2) LW 261. That was a case where, the C.R.PS preferred by the tenants while being heard, it was brought to the notice of the court that the subsequent sale of the premises was suppressed. While dealing with the said circumstance, the learned judge was pleased to record the stand of the landlord to the following effect: "It is conceded by them that insofar as the ground of requirement for own use and occupation is concerned, the present revision petitions may not survive and that however, eviction ordered on the ground of unauthorised subletting has to be maintained". Thereafter, the learned judged was pleased to hold that the erstwhile landlord, who were the respondents in that revision petition lost their title to the property and as such the substratum of the eviction petition had gone. The learned Judge further held that the eviction proceedings got terminated and it was open to the subsequent purchaser to come forward with a fresh petition on the same ground which are available to them on the date of purchase. Therefore, even going by this decision, it is clear that the whole basis of the claim of the original owner having been lost by virtue of the sale, the very petition for eviction gets terminated and thereafter, it is for the purchaser to initiate fresh proceedings and seek for eviction.
11. One other judgment cited by the learned counsel for the petitioner reported in Arumuga Naicker (Died) and 3 others v. T.G. Baladhandayuthapani and another, 1998 (1) LW 616 relate to a case falling under Section 14(l)(b) of the the Act. Therefore, the said case also, does not apply to the case of the petitioners.
12. Inasmuch as I have held that the claim of the erstwhile landlord for eviction on the ground of owners occupation being personal to him alone, the present petitioners cannot be held to be entitled to seek for that relief in the application preferred by the original landlord. It may be open to the petitioners to approach the Rent Controller afresh by filing a separate application. The appeal being a continuation of the original proceedings, the same principle will hold good and even at the stage of the appeal, it is not legally permissible for them to seek for grant of the relief claimed by the vendor in the original petition. I further hold that the amendment of the original application will not alter the said legal position. Having regard to my above said conclusions, since the very basis of the claim of the original owner was lost, the petitioner cannot continue to claim the relief and the Appeal itself does not survive. Inasmuch as the subsequent purchasers have come into the picture, the original order of eviction also does not stand. In the result, this Civil Revision Petition is dismissed and the order of the Appellate Authority is sustained on the substantial ground that the present petitioners are not entitled to seek for eviction on the basis of the claim made by their vendor in RCOP No.169 of 1984. It is however open to the petitioners to seek for eviction afresh by initiating fresh proceedings in the manner known to law.