Madras High Court
R.V.P.Shakunthala vs N.Hari Narayana (Deceased) on 10 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.07.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P. (NPD) No. 3789 of 2009 and M.P. Nos.1 of 2009 and 1 of 2012 R.V.P.Shakunthala .. Petitioner Vs 1. N.Hari Narayana (Deceased) 2. Jyothirmayi 3. N.Suguna Mayi .. Respondents ( R2 and R3 brought on records as LR's of the deceased sole respondent vide order of the Court dated 5.6.2013 made in M.P.No.1 of 2013 in C.R.P. (NPD) No.3789 of 2009 ) Civil Revision Petition filed against the judgment and decree dated 19.10.2009 made in R.C.A No. 179 of 2007 on the file of the VII Judge, Small Causes Court at Chennai against the order dated 30.11.2006 made in R.C.O.P.No.762 of 2006 on the file of the XV Judge, Small Causes Court at Chennai. For Petitioner : Mr.P.Seshadri For Respondents : Mr.S.S.Rajesh ORDER
The Revision Petitioner is the tenant. She is aggrieved against the order of eviction passed by the learned Rent Controller and confirmed by the Appellate Authority on the ground of additional accommodation.
2. The first respondent herein as the landlord filed R.C.O.P. No.762 of 2006 on the file of Small Causes Court, Chennai against the petitioner herein seeking for her eviction on the ground of additional accommodation under Section 10(3)(c) of the Tamil Nadu Building (Lease and Rent Control) Act. The case of the landlord is that the petition mentioned property belongs to him in pursuant to a family partition. The petitioner herein is the tenant in respect of the ground floor of the petition premises on a monthly rent of Rs.1200/- The landlord and his wife were having multiple ailments due to their old age. Consequently, they were advised to avoid climbing steps. Apart from the said fact, his daughter also needs a separate room for her studies. The landlord, a retired Director of Government Musuem also wanted to preserve his books by establishing a library. The landlord is in occupation of the first floor and as the same is insufficient due to space constraint. He was facing great difficulties in preserving the books due to lack of space. They were getting destroyed and eaten by white ants. Hence, he needed the petition premises viz., the ground floor which is in occupation of the tenant as additional accommodation. At the time of filing the application the landlord was 75 years old.
3. The said application was resisted by the tenant . It was her contention that the landlord was having three other portions in the ground floor and the same were kept idle for several years without occupation. He could have occupied the said portions, if there was really a need. It was also denied by the tenant that the landlord was maintaining a library.
4. The learned Rent Controller found that the landlord has established the need of the premises and also the relative hardship whereas the tenant did not establish so. The learned Rent Controller has taken into consideration Ex.P1 letter to hold that the relative hardship is more on the landlord.
5. On further appeal by the tenant, the Appellate Authority confirmed the finding of the learned Rent Controller by holding that the landlord was a retired Director of Government Museum and for doing project work and for keeping the books he was in need of the petition premises as the present portion , which is in occupation of the landlord is not sufficient to keep the books and also to have discussions with the Government authorities. The Appellate Authority also found that through Ex.P1 letter the landlord was asked by his sister to vacate another portion which is in his occupation. It is also found by the Appellate Authority that the landlord was keeping half of the books in his room and half of the books in the portion owned by his sister. While considering the question of relative hardship, the Appellate Authority has found that the hardship that would be caused to the landlord would be higher than that of the tenant in view of the admission made by R.W.1 herself that the landlord is not owning any other property whereas her son is residing in another portion. Consequently, the Appellate Authority found the requirement of the landlord as bonafide and confirmed the order of eviction.
6. Heard the learned counsel appearing on either side.
7. Learned counsel appearing for the petitioner submits that during the pendency of the Civil Revision Petition, the first respondent/landlord passed away and his legal heirs were brought on record as second and third respondents. Since eviction is sought on the ground of additional accommodation, the subsequent event namely, the death of the landlord makes the said requirement infructuous and the present landlords, at the best, can only file fresh RCOP with fresh grounds, if any, and they cannot be permitted to continue this proceedings and have the benefit of order of eviction.
8. He further submitted that the petitioner had filed M.P.No.1 of 2012 before this Court to bring the fact that the landlord had let out a portion of the premises to a third party which fell vacant during the pendency of the proceedings. Therefore, he submitted that there is no bonafide, on the part of the landlords and consequently the order of eviction passed on the ground of additional accommodation cannot be sustained.
9. Per contra, the learned counsel appearing for the respondents submitted that though the landlord passed away during the pendency of the Civil Revision Petition, that does not mean that the requirement ceased to exist. The landlord's wife is still alive and his daughter is also residing with her in the same property. The other portion which fell vacant during the pendency of the proceedings does not belong to the landlord and on the other hand, it belongs to his brother. A counter is filed in M.P.No.1 of 2012 denying the allegation. He further submitted that Section 27 of the Tamil Nadu Buildings (Lease and Rent Control) Act permits the legal representatives to continue the proceedings even after the death of the original parties. The learned counsel in support of his submissions relied on the following decisions.
1. 1979 (2) MLJ 124 (L.K.K. GAFOOR VS. M.T. LAKSHMANA MUDALIAR (DIED) AND ANOTHER);
2. 1993 (2) MLJ 442 ( M/S.SULTAN HARDWARE CORPORATION AND OTHERS VS. CT.MEIYAMMAI ACHI AND OTHERS )
3. 2000 (3) MLJ 256 ( K.R.MOHAMMED ALI VS. MINOR SANTHOSH).
4. 2009 (4) MLJ 37 (Batco Roadways Vs. A.Radhammal)
5. 2009 (8) MLJ 560 (A.Subramani Vs. S.Gnanasekaran)
10. I have given careful consideration to the submissions made by the learned counsel appearing for both parties and also the relevant materials placed before this court.
11. The eviction petition was filed under Section 10(3)(c) of the said Act on the ground of additional accommodation. A perusal of the petition filed by the landlord would show that the landlord and his family is residing in the first floor and the tenant is residing in the ground floor. It is also seen that the landlord was aged about 75 years at that time. Both the landlord and his wife were having chronic ailments due to their old age and they were advised not to climb steps . Apart from the said ailment, the landlord had also specifically stated that his daughter needs a separate room for her studies. It is also the case of the landlord that he had collected lot of books while he was working as the Director of Government Museum and in order to preserve those books by maintaining a library, he needs the petition premises as additional accommodation. The tenant as R.W.1 clearly admitted that the landlord is not owning any other property. It is seen that the landlord was a retired Director of Government Museum and for keeping his large volume of books, he also in need of additional space.
12. On the other hand, the landlord has marked Exs.P1 letter issued by his sister asking him to vacate the portion in his occupation where he was keeping a portion of the books. The said letter issued under Ex.P1 is also not disproved by the tenant. It is further to be seen that the landlord apart from stating about his ailment and that he needs to keep the books, had also sought the premises for his daughter to have a separate room for her studies. When all these factual details of requirement stated in the eviction petition were found to have been proved or not disproved , it has to be held that the requirement of the landlord is bonafide.
13. While coming to the question of relative hardship, it is the categorical finding of the Appellate Authority that the landlord is not owning any other property as admitted by R.W.1 the tenant herself and that the tenant's son is residing in another portion. Such factual finding rendered by the Court below shows that hardship will be more on the part of the landlord if eviction is denied than that of the tenant if the eviction is ordered.
14. No doubt, an attempt was made before this Court by filing M.P.No. 1 of 2012 by the tenant to contend that a portion of the premises fell vacant during the pendency of the proceedings was let out by the landlord to third party. The said fact was stoutly denied by the landlord by filing a counter wherein it is categorically stated that the said portion belongs to his brother and therefore any vacancy of such portion caused during the pendency of the proceedings cannot have a bearing or relevancy to the present Civil Revision Petition. Though such petition was filed no other material is placed on record to establish such contention. On the other hand when it is stoutly denied by the other side , it is for the petitioner to prove the same, which she had miserably failed . At any event, as it is an additional accommodation, the landlord who is in occupation of the first floor is certainly entitled to seek the ground floor portion especially under the circumstances stated in the petition.
15. Now let me consider the question as to whether the death of the landlord during the pendency of the proceedings would make the eviction proceedings infructuous or whether the cause of action ceased to exist, more particularly, when the eviction was sought on the ground of additional accommodation or owner's occupation.
16. It is to be seen that the eviction petition was filed on the ground of additional accommodation by contending that the petitioner and his wife were ailing with multiple ailments and were advised not to climb the stairs; that their daughter wants a separate room for her studies; and that the books collected by the landlord have to be kept by establishing library. When these are the reasons stated for additional accommodation, I am not able to appreciate the contention of the learned counsel for the petitioner that the cause of action or the bonafide ceased to exist on the death of the landlord . The fact remains that wife of the landlord, an old woman is still living with her daughter in the same premises. If an additional accommodation is sought for by the landlord who also happens to be the head of the family, it goes without saying that such need is not confined only to the landlord in his individual capacity but has to be construed as that of the entire family. In other words, the right is not a personal right but an incorporeal right annexed to the property of the deceased. Therefore, when the landlord seeks additional accommodation by raising several contentions, bonafide has to be culled out taking note of all the facts and circumstances stated in the petition and if such reasons show and establish that the bonaifde will continue even after the death of the landlord, the tenant cannot be permitted to say that the cause of action ceased to exist once the landlord dies during the pendency of the proceedings. The wife is still alive. So also the daughter. Certainly they require the premises in order to maintain the books of the deceased landlord and for the daughter's study room. Moreover it is not for the tenant to dictate which of the portion, the landlord should seek as an additional accommodation, even assuming that another portion fell vacant during the pendency of the proceedings. In fact, in this case, even such contention raised by the tenant is stoutly denied by the landlord by saying that the property does not belong to him.
17. Learned counsel for the respondent relied on the decisions reported in 1979 (2) MLJ 124 (L.K.K. GAFOOR VS. M.T. LAKSHMANA MUDALIAR (DIED) AND ANOTHER); 1993 (2) MLJ 442 ( M/S.SULTAN HARDWARE CORPORATION AND OTHERS VS. CT.MEIYAMMAI ACHI AND OTHERS ) to contend that the death of the landlord during the course of the proceedings will not make the proceedings infructuous.
18. In L.K.K. GAFOOR VS. M.T. LAKSHMANA MUDALIAR (DIED) AND ANOTHER (1979 (2) MLJ 124) at paragraph 5 it is held as follows:-
"When the landlord obtains an order of eviction under Section 10(3)(a)(iii),such a right cannot be characterised as a personal right which comes to an end with the death of the landlord. It is an incorporeal right annexed to the estate of the deceased and it can be taken advantage of by the legal representatives of the deceased. The order of eviction secured by the landlord in the present case is a right which is annexed to the property and it cannot be divested by his death and would, therefore, pass on to his heirs as being part and parcel of the property owned by the landlord.
19. Likewise, in M/S.SULTAN HARDWARE CORPORATION AND OTHERS VS. CT.MEIYAMMAI ACHI AND OTHERS ( 1993 (2) MLJ 442), it has been held at paragraph 12 as follows:-
The judicial opinion throughout appears to have been consistent for more than two decades in holding that so long as the basis or ground on which the additional accommodation was sought for subsisted and continued even after the death of a landlord/landlady who initially filed the application for eviction of a tenant and recovery of possession under Section 10(3)(c) the legal representatives are entitled to continue the proceedings for their benefit also and the same do not come to any end with the death of the landlord who initially filed it. This view appears to have gained ground with courts on the peculiar nature of the right secured to the owner of the property under the Act and also on account of such right and claim being an adjunct to the rights in the property as such and also fortified by the bonafides in the requirement for additional accommodation when as in the present case, the owner has filed the application seeking recovery of possession as additional accommodation for the business that was being carried on in the same premises and it is also shown that notwithstanding the death of the erstwhile owner, the legal representatives who stepped into the shoes of the landlord have also succeeded to the business and successfully continuing the same. There will be no rhyme or reason or logic in stating that the application for eviction should be also held to have suffered a natural death with the person who filed it. In that respect, there does not also appear to be any difference in the position, depending upon the application being either one under Section 10(3)(a)(iii) or Section 10(3)(c) of the Act. "
20. In another decision reported in 2000 (3) MLJ 256 ( K.R.MOHAMMED ALI VS. MINOR SANTHOSH), a learned Judge of this Court observed as follows:-
".... Therefore, while the position of law is such, giving the interpretation for the terms "Owner's occupation" in its narrow sense that it means only the petitioner and non-else so as to conclude that on the death of the petitioner/landlord, the right being his personal right, there is no question of impleading the legal representatives of the deceased owner under Section 27 of the Act, cannot sustain nor is it acceptable. On the other hand, the terms "owner's occupation" should be given its wider meaning thereby making it clear that it is not the owner who is individually meant but the occupation is for himself and for his other dependants who might also be his legal representatives after his death. Therefore, the correct way of interpreting the term "landlord" in seeking the residential building for his own occupation, includes his legal representative also and hence, under pretext that it is his personal right that is involved, it is false to conclude that on his death, the same becomes either extinguished without being made available for his legal representatives or become non est in law as it is argued on the part of the learned counsel for the petitioner. "
21. Thus, by considering the above decisions of this Court and also considering the facts and circumstances of the case, I am of the firm view that the concurrent order passed by the authorities below ordering eviction of the petitioner/ tenant does not warrant any interference in this Civil Revision Petition. Since I am only concurring with the order of the authorities below, there is no necessity for me to deal with the other two decisions relied on by the learned counsel for the respondents reported in 2009 (4) MLJ 37 (Batco Roadways Vs. A.Radhammal) and 2009 (8) MLJ 560 (A.Subramani Vs. S.Gnanasekaran) which are cited to contend that the scope of Revision under Section 25 is very limited.
22. Considering all these facts and circumstances of the case, I do not find any merit in the Civil Revision Petition and accordingly the same is dismissed. The petitioner/ tenant is granted three months' time to vacate and hand over vacant possession of the premises from today. Consequently, the connected M.Ps. are closed. No costs.
krr To The Registrar Small Causes Court Chennai