Madras High Court
D.Prema Jhansi Rani vs N.Srivijayan on 10 April, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:10.04.2012
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(NPD).No.4215 of 2011
and
M.P.No.1 of 2011
1.D.Prema Jhansi Rani
2.D.Raja Sampath Kumar
3.Selvi Ester Petitioners
Vs.
N.Srivijayan Respondent
Civil revision petition preferred against the order dated 8.4.2011 passed by the Sub-Court, Bhavani, RCA.No.1 of 2010 confirming the order dated 30.10.2010 passed by the Rent Controller-Principal District Munsif Court, Bhavani, in R.C.O.P.No.1 of 2008.
For Petitioners : Mr.T.Murugamanickam
For Respondent :Mr.N.Manokaran
ORDER
Inveighing the judgement dated 8.4.2011 passed by the Sub-Court, Bhavani in RCA.No.1 of 2010 confirming the order dated 30.10.2010 passed by the Rent Controller-Principal District Munsif Court, Bhavani, in R.C.O.P.No.1 of 2008, this civil revision petition is focused.
2. Heard both sides.
3. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the Rent Controller.
4. A thumbnail sketch of the germane facts absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The respondent herein/landlord filed the RCOP No.1 of 2008 for evicting the petitioners herein/tenants on the ground of 'wilful default' in paying the rents and also for 'additional accommodation', so as to accommodate his parents in the demised premises.
(ii) The tenants resisted the petition by filing counter.
(iii) During enquiry, the landlord examined himself as P.W.1 and marked Exs.P1 to P22. On the respondents/tenants' side, the second respondent examined himself as R.W.1 along with R.W.2 and marked Ex.R1.
(iv) Ultimately, the Rent Controller ordered eviction on both the grounds, as against which, appeal was filed by the tenants for nothing but to be dismissed by the appellate authority, confirming the order of eviction of the Rent Controller.
5. Challenging and impugning both the order of the Rent Controller as well as the judgement of the appellate authority, the respondents/tenants in the RCOP preferred this revision on various grounds.
6. The learned counsel for the revision petitioners/tenants, placing reliance on the grounds of revision would put forth and set forth his arguements, which could tersely and precisely be set out thus:
(i) Absolutely there is no shard or shred, jot or pint of evidence to show that the tenants committed 'wilful default' in paying the rents.
(ii) Simply because the tenants could not produce the rent receipt for the period between January 2007 and August 2007, there could be no presumption as against them that they committed default. On the other hand, the landlord herein, who happened to be the settlee of the property, would claim that his father settled the property in his favour even in the year 2002 and that he adjusted for the rents for the period between Januay 2007 and August 2007, from the advance amount of Rs.20,000/- which the tenants paid to the present landlords' father-the original landlord.
(iii) The tenants were in the dark relating to the alleged settlement made by the original landlord in favour of the present landlords and hence, they were constrained to send the rent in the form of Demand Draft to the original landlord, but it was returned and that before the tenants could pay rent to the present landlords, the latter filed the RCOP for eviction.
(iv) Pendente lite also the tenants were paying rent regularly and as such, both the authorities below wrongly understood the evidence and simply ordered eviction on the ground of 'wilful default'.
(v) The provision of law invoked by the landlord is Section 10(2)(vii), which is having nothing to do with the ground of 'wilful default', but that provision is relating to the denial of the title of landlord, which is not the case of the landlord herein.
(vi) The landlord invoked Section 10(3)(a)(i)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act to claim 'additional accommodation'. The said provision is only with regard to 'personal occupation' and not with regard to the 'additional accommodation'. But both the authorities below, without appreciating the law as well as the facts, simply ordered eviction, warranting interference in revision.
(vii) The comparative hardship should have been considered by the authorities below before ordering eviction on the ground of 'additional accommodation', but that was not done so.
Accordingly, the learned counsel for the petitioners herein/tenants would pray for setting aside the respective judgement and order of the authorities below and for dismissing the original RCOP itself.
7. In a bid to make mincemeat of the arguements as put forth and set forth on the side of the petitioners/tenants, the learned counsel for the respondent/landlord would pilot his arguements, the gist and kernal of the same would run thus:
(i) A mere wrong quoting of the provisions of the law would not be fatal to the case and there are catena of decisions to that effect.
(ii) The exhibits marked on the side of the petitioners/tenants would evince and evidence, portray and project, display and demonstrate that the tenants sent, by way of demand draft, a sum of Rs.2,300/- towards rent per month to the landlord's father, who happened to be the original landlord of the demised premises. However, holus-bolus, pendente lite, the tenants started paying only Rs.1000/- per month as rent, which even by phantasmagorical thoughts cannot be visualised as one in compliance with the mandatory provisions envisaged in the Act. As such, both the authorities below, appreciating the evidence on record correctly held that there was 'wilful default' on the part of the tenants in paying the rents to the landlords.
(iii) The averments in the RCOP petition would clearly express and expatiate that the landlords required the premises for 'additional accommodation', so to say, to accommodate his aged parents to occupy the demised premises, which happened to be the ground floor of a building, and the landlord is occupying the first floor of the same building.
(iv) It is not the case of the landlords in the petition that the demised premises is required for 'owners occupation'. When such is the case, mere wrong quoting of the provision of the law would not be fatal to the prayer of the landlords.
Accordingly, the learned counsel for the respondent herein/landlord would pray for dismissing this revision.
8. The points for consideration are as under:
(i) Whether mere wrong quoting of the provisions of the law would be fatal to the Rent Control proceedings initiated by the landlords?
(ii) Whether the payment of the reduced rate of rent of Rs.1000/- per month by the tenants, on the ground that they were constrained to spend huge amount for their water consumption, in the absence of water supply in the demised premises, and whether such conduct of the tenant would constitute 'wilful default'?
(iii) Whether both the authorities below failed to take into account the comparative hardship of the parties concerned as found envisaged in the proviso to clause (3) of Sub-Section (3) of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act?
(iv) Whether there is any perversity or illegality in the order of both the authorities below?.
9. Point No.(i): The learned counsel for the landlord would cite the following decision of this Court:
2001(I) CTC 42 S.P.KASI VISWANATHAN CHETTIAR V. S.KALYANARAMAN, certain excerpts from it would run thus:
"16. Having regard to the facts of the present case, it is unnecessary to analyse the issue deeper as regards the conflicting views as between the judgement in Alamelu v Visalakshi, 1978(II) MLJ 171, and the subsequent judgements expressing differently. This is not a case of total absence of undertaking. This is a case of defective undertaking and the question is whether the right of the landlord to take over the premises for demolition and reconstruction should be thrown aside merely due to erroneous drafting of the petition. Petitions are drafted by counsel and the mistakes which they commit especially mistakes which they commit especially mistakes which are merely technical could be rectified by giving a proper opportunity to the petitioner. Considering the very nature of the expressions used in Section 14(2)(b) of the Act, the object and spirit of the provision is to ensure proper enforcement of the ground on which the landlord secures vacant possession. Section itself makes the time limit elastic and flexible, depending upon the circumstances and the Rent Controller is vested with the discretion to grant such further period, for reasons to be recorded by him. As pointed out by T.Ramaprasada Rao, C.J., as mentioned above, the undertaking given by the petitioner in the present case must be reasonably understood as an undertaking within the meaning of Section 14(2)(b) of the Act. Any provision of law should be interpreted in a manner as would sub-serve justice and the object of the provision. The legal proceedings should not be made casualty of hyper technical interpretation."
10. A mere running of the eye over the above precedent would exemplify and demonstrate that quoting of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, would not be fatal to the case of the petitioner.
11. The entire RCOP petition should be read to understand as on what grounds the landlord sought eviction of the tenants. Here, unarguably and unassailably, pellucidly and palpably the landlord has set out in the body of the petition that the tenants committed 'wilful default' in paying the rents and over and above that, he has also set out in paragraph Nos.5, 6 and 8 of the petition that the demised premises is required for his 'additional accommodation', so to say, to accommodate his aged parents, who are living elsewhere in a rented premises.
12. The fact also remains that the tenants contested the RCOP understanding the real purport of the RCOP and in such a case, imaginarily by developing some doubts, the revision petitioners would not be justified in expecting the Court to throw the baby along with bathe water. Accordingly, point No.(i) is decided in favour of the landlord and as against the tenants.
13. Points (ii) to (iv) All these points are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
14. Indubitably and indisputably, the monthly rent was Rs.2,300/-, which the tenants admittedly paid to the original landlord, who happened to be the father of the present landlord. While so, precipitously the tenants started depositing only a sum of Rs.1000/-per month towards rent on the alleged ground that they had to spend a huge amount, so to say, to an extent of Rs.1,300/- per month for getting water for their consumption, as there were no water facilities in the demised premises.
15. The learned counsel for the landlord would appropriately and appositely, correctly and convincingly with reference to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, highlight and spotlight the fact that the tenants were not justified in suo motu deducting from the rent, some alleged water charges and pay the remaining to the landlord. As such, both the authorities below correctly held that the tenants committed 'wilful default' in paying the rent. If at all the tenants had any difficulty in getting the amenities, they ought to have invoked the appropriate provisions of the Act, so to say, for restoration of amenities. Obviously and axiomatically, the tenants have not chosen to invoke those provisions. Suo motu assuming as though they had have carte blanche in deducting certain amounts from the rent, they were not justified in deducting a sum of Rs.1,300/- from the monthly rent and paying only the remaining rent to the landlord.
16. The conduct of the tenants should be backed by law. However, the tenants suo motu reduced the rent which could only be termed as contumacious and which is not in concinnity or inconsonance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. A fortiori the authorities below have appreciated the facts correctly and held that the tenants committed 'wilful default' in paying the rent.
17. It is the specific and categorical case of the landlord that his parents are sexagenarians and they are staying in a rented premises. However, the landlord herein being the son, for the purpose of taking active care of them, wanted to accommodate them in the demised premises i.e. the ground floor of the building, wherein the tenants are residing. Hence, this is a clear case of 'additional accommodation' and both the authorities below, considering that fact ordered eviction of the tenants.
18. The contention on the side of the tenants that both the authorities below did not take into account the ingredients of Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, is neither here nor there. There is no denying the fact that the present landlord is having his aged parents and that they are not residing with him at present. The Rent Control Authority correctly analysed the oral evidence of R.W.1 and found that R.W.1 deliberately glossed over the specific question as to whether R.W.1 knew that the parents of the landlord were at that time residing in their own premises; R.W.1 could not answer directly the said question. Whereupon, the Rent Controller has correctly held that the landlord's version that his parents are residing in a rented premises, is believable. On balance, I am of the view that there is no perversity or illegality in the finding of the Rent Controller as well as the Rent Control Appellate Authority to the effect that the demised premises is required for the 'additional accommodation' of the landlord.
19. Comparative hardship as contemplated in the proviso to clause (3) of Sub-Section (3) of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act in all cases cannot be proved objectively. In the case of non-residential buildings, to some extent, objectively such requirement could be proved. But in a case of this nature, absolutely there could be no possibility of proving objectively the comparative hardship. Common or garden proposition as it is that scarcely could be stated that a landlord's requirement for accommodating his aged parents, who are residing separately in a rented premises, should be belittled or slighted. There is nothing to indicate that by ordering eviction of the tenants in this case, they would be put to more hardship than the hardship of the parents of the landlord.
20. In this factual matrix it is clearly inferable and understandable that the hardship of the landlord would be more than the hardship of the tenants, if eviction of the tenants is not ordered. But on the other hand, if eviction is ordered, the tenants can very well seek some other accommodation and occupy it. One cannot expect that for the purpose of looking after the parents of the landlord, the landlord himself should vacate his own premises and go and stay with his parents in a rented premises.
21. Wherefore, I am of the view that the Rent Controller as well as the appellate authority correctly appreciated the facts and decided the lis, warranting no interference in the revision. Accordingly, these points are decided.
22. In the result, the civil revision petition is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
23. Taking into consideration the fact that the tenants would require sufficient time to get alternate accommodation, so as to shift his residence from the demised premises, I am of the view that granting time till the end of this year, i.e. till the end of December 2012 would meet the ends of justice, subject to the tenants paying the full rent regularly without any arrears and accordingly it is ordered. However, an affidavit to that effect should be filed within 15 days from this date by the petitioners herein.
Msk 10.04.2012
Index:Yes/No
Internet:Yes/No
To
1. The Sub-Court, Bhavani.
2. The Rent Controller-Principal District Munsif Court, Bhavani
G.RAJASURIA,J
C.R.P.(NPD).No.4215 of 2011
10.04.2012