Madras High Court
Srivarammal (Died) And Ors. vs B. Kanammal Jain And Anr. on 22 March, 1995
Equivalent citations: (1995)2MLJ228
ORDER S.S. SubramaTN-1993-0304.bgmni, J.
1. Landlords who obtained physical possession of the building through court on 1.2.1987, are the revision petitioners.
2. The material facts are as follows:
Petitioners filed R.C.O.P. No. 25 of I984, on the file of Rent Control Court, for evicting, the respondents herein on the ground that they require the building for their own occupation, i.e., for conducting a pawn broker's business. The rent controller ordered eviction and the appellate authority confirmed the said decision, against which the respondents herein filed C.R.P. No. 3305 of 1985 before this Court. The civil revision petition was not admitted, and, pursuant to the undertaking given by the respondents herein the building was taken possession on 1.2:1987. The present petition was filed by the tenants under Section 10(5)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, alleging that the landlords did not occupy it within one month from the date of obtaining possession.
3. In the counter to the petition, the only statement that is relevant for the purpose of this revision is stated as follows:
The allegation that the respondents have not occupied the premises and the same is kept as vacant and locked is false and specifically denied by the respondent. The 1st respondent was bedridden due to uterus problem and she was admitted in the hospital in the month of March, 1987 and she had also undergone major operation and took rest in the hospital in the month of March, 1987 and she had also undergone major operation and took rest in the hospital itself for a month's time. The respondents 2 and 3 were pre-occupied to look after the health of their mother. The respondent has applied for pawn broker licence in the month of August, 1987 and that he was able to get the licence only in the month of December, 1987. The respondent have been in occupation of the premises from the date of delivery of the premises.
4. On the side of the respondents, Ex. A-1 was marked and on the side of the petitioners Exs.B-1 to B-6 were marked. P.Ws. 1 and 2 were examined on the side of the respondents, and the second petitioner herein was examined as R.W.I.
5. After evaluating the entire evidence, the rent control court dismissed the petition, and held that the respondents are not entitled re-occupy the building. The respondents thereafter filed R.C.A. No. 76 of 1988, on the file of the appellate authority (Subordinate Judge, Villupuram). The appellate authority reversed the decision of the rent controller and held that the petitioners herein have not occupied the building within one month from the date of taking possession and, for that reason, the respondents were entitled to re-delivery of the premises. The said finding of the appellate authority is challenged by. the landlords before this Court .
6. Before going into the evidence and the law on the subject, it is better to incorporate the relevant section itself. It reads thus:
10. Eviction of tenants....
(5)(a) Where a landlord who has obtained possession of a building in pursuance of an order under Sub-section (3) of Sub-section (3-A) does not himself occupy it within one month of the date of obtaining possession or, having so occupied it, vacates it without reasonable cause, within six months of such date, the tenant who has been evicted may apply to the controller for an order directing that he shall be restored to possession of the building and the controller shall make an order accordingly, notwithstanding anything contained in Section 3
7. P.W.2 was examined to prove that he has pledged some of his ornaments on 4.4.1988, i.e., the date on the which the petitioners started the business pawnbrokers. P.W.1, in his evidence has stated that the petitioners are not doing any business and even on the date when he was examined, the petitioners are doing business at Tindivanam where they are doing the same business. He has also stated that he has got alternate accommodation. He also says that the landlords are not occupying the building in the sense that is not being used. As against the said evidence, the second petitioner herein was examined as R.W.I. He stated that on 1.2.1987, he took possession of the building. But in early March, 1987 his mother became seriously, ill and she had to be taken to Madras for treatment. In the second half of March, 1987, his mother was operated and for about a month, she continued to be in the hospital. During that time, there was none to lookafter the affairs of the mother. He also said that the third petitioner herein is studying in college and because he was engaged in looking after his mother, he could not occupy the building in the real sense of the term. He also said that in August, 1987 he applied for licence and the same was obtained by him only in December, 1987. Thereafter, he started the pawnbroker business. He also says that even on the date when he was examined, he was continuing the same. In cross-examination he also said that even though he, obtained licence in December, he did not do the business immediately, The rent control court held that because the petitioners herein were lookingafter the affairs of the mother, who was seriously ill, that is sufficient cause for not making use of the building. It further held that since the building was in the landlords, possession and they also had an indention to make use of it, that will amount to occupation, and, for that reason, the allegation of the respondent is not maintainable.
8. When the matter was taken in appeal, the appellate authority held that after taking possession, through court, the petitioners herein had not made any attempt to occupy the same i.e., they had not made use of the same and that eyen if the mother, was laid up, that was only for a period of one month, viz., March, 1987. It also found fault with the petitioners for not applying the licence earlier and also for not starting the business till April, 1988 even though the licence was obtained in December, 1987. In effect, the finding of the appellate authority was that the mere possession of the building will not amount to occupation of it and since the petitioners, (andlords) have not made any over tact for the purpose of conducting business, it will not amount to occupation of it and that, therefore, the respondents are entitled to get redelivery.
9. The first point to be considered in this case is, regarding the interpretation of Section 10(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act and also the meaning attributed to the words 'possession' and 'occupation' in that section.
10. Both the words 'possession' and 'occupation' are not defined under the Act. But these words occur in various places in the same statute.
11. It is an accepted rule of interpretation that when the very same words occur in the same statute, the same meaning will have to be given unless there is a contrary intention. When it is not defined under the Act, naturally we have to take only the dictionary meaning.
12. In P. Ramanatha Aiyar's 'The Law Lexicon reprint edition 1987, at page 897 the meaning for the words 'occupation' is given as follows:
Occupation. The principal business of one's life, vocation, calling trade, the business which a man follows to procure a living or obtain wealth, that which occupies or engages one's time or attention, vocation, employment, calling trade the business in which a man is usually engaged, to the knowledge of his neighbour.
Occupation is a 'generic term, and includes every species of that genus - and holding or discharging the duties of a public office is one species of occupation, just as carpentering tailoring, farming, etc., are species of occupation.....
The learned author has also made a distinction between 'occupation' and 'possession'. In the same page, immediately below the portion extracted above, we find the following:
Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself constitute an occupation. The owner of vacant house is in possession and may maintain trespass against any one who invades it, but as long as he leaves it vacant he is not in occupation, nor is he an occupier: (per Lush J., R. v. St. Pancreas 2 Q.B.D. 588.
There is a distinction between 'occupation' and 'possession', because there may be a legal or constructive possession where there is no actual occupation.
The word "occupy" is a word of uncertain meaning. Sometimes it indicates legal possession in' the technical sense, as when occupation is made the best of rateability; and it is in this sense that it is said that the occupation of premises by a servant if such occupation is subservient and necessary to the service is the occupation of the master. At other times occupation denotes nothing more than physical presence in a place for a substantial period of time. 31 M.L.J. 114 : 4 U.P.L.R. 97 (P.C.).
13. Section 60 of the Civil Procedure Code exempts from attachment houses and other buildings of agriculturists 'occupied' by them.
14. While considering the word 'occupation', their Lordships of the Andhra Pradesh High Court have held in the decision reported in Ollala Ambiah v. Avadhanula Mallanna , that exemption can be claimed only in regard to houses which are 'occupied' for the purpose of cultivating the lands. Their Lordships were of the view that 'occupied', means 'living in that house.
15. In Balmakund Khatry v. Hari Narain A.I.R. 1949 Patna 31, the question that came up for consideration was under the Bihar Buildings (Lease Rent and Eviction) Control Act. The dispute was whether 'occupation' is equivalent to residences. At page 35 of the said judgment, it was held thus:
. . . .The word "occupation' in Sub-section (3) of Section 11 has been used in its ordinary dictionary sense meaning The actual user of the property for the purpose for which it is meant, and that it cannot be restricted in its meaning by making it synonymous with residence.
[Italics supplied] Another learned Judge interpreted the word 'occupied as follows:
.....If the plaintiff is entitled to the protection offered by the Act for the purpose of running the cinema business in these premises, the defendants, who-are the owners of this house, must be entitled to evict the plaintiff from this house if they require it for running a cinema show themselves. If they do not occupy the premises by putting it to the use that it is capable of, that is to say, by using the premises for the purpose of running a cinema show, the plaintiff will certainly be entitled under the provisions of Sub-section (4) of Section 11 to apply and get back the premises. If the defendants allow somebody else to run a cinema show in these premises they will certainly not be occupying the premises themselves within the meaning of Sub-section (4). But so long as they do not do that but make use of these premises for the purpose of running a cinema show, in my opinion, the provision in Sub-section (4) "himself occupy it" is complied with, and the meaning, therefore, to be attached to the words "for his own occupation" must be, in the circumstances of the present case, that the landlords requires it for the purpose of running; their own cinema show in these premises.
16. In Firm Ram Kishun Shah v. Jamuna Prasad , their Lordships held as follows:
"Occupation" includes possession as its primary element, but it also includes something more. Legal possession does not of itself, constitute an occupation. The owner of "vacant house is in possession but as long as he leaves it vacant he is not in occupation, nor is he an occupier."
17. Radial Bros. v. The Government of Mysore A.I.R. 1951 Mys. 66, was a case under the Mysore House Rent and Accommodation Control Order. Clause 9(3)(a) of the order came up for interpretation in that case. It reads as follows:
A landlord may also apply to the controller for an order directing the tenant to put him in possession of a house in the following cases:
(i) If the house, being a residential building is required for the, bona fide occupation of the landlord and he is not already occupying another residential building of his own in the same city, town or other area,
(ii) if the house, being a non residential building, is required for a business which the landlord is carrying on or which he was to start and he is not already in occupation of anon-residential building in the same city, town or other area for purposes of such business.
While interpreting the said clause, their Lordships held thus:
It is thus seen that the word 'possession' is used with reference to the order the controller makes and occupation for, the requirement of the landlord. The word 'occupation' occurs in both Sub-clauses (1) and (2) with reference to residential as well as the non-residential buildings. Whether the meaning to be attached to these is the same or different is not clear but a distinction is made between 'possession' and 'occupation' in the strict legal sense. While occupation includes possession and also something more legal possession does not of itself constitute possession (Stroud's Judicial Dictionary). If as contended for the petitioners, 'occupation' is synonymous with 'residence', then the word could not find a place in Sub-clause (ii) and she word "residence in the place of "occupation" in Sub-clause (i) would be more appropriate and have better fitted with the petitioners construction.
The term 'occupation' is not defined in house rent control order and seems to have wider signification the 'residence', such a construction has been placed on it in the application of other enactments in which the word is used. In Bladin v. Lakhan Singh A.I.R. 1927 All 214 : 99 I.C. 376, it was observed that the word 'occupation' in Section 60(c), Civil P.C. does not necessarily-mean residence only In Emperor v. Taylor 10 Bom L.R. 38, the question as to how the word "occupation" in the Factories Act is to be construed a rose for consideration, Chandavarkar, J., remarked:
What is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. The learned Magistrate who has made the reference seems to think that the legal meaning of 'occupier' is a person who is in actual possession.
But a person may occupy or possess a land or building actually or constructively ........The question who is the occupier of a factory must therefore depend among others upon these considerations namely who alone has the right of using the factory for the purpose for which it is constructed and worked--whose is the predominant possession of a general superintendence over it.
The word 'occupy' is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. Another times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time. In Queen v. The Justices of the West Riding of Yorkshire (1942)14 E.R. 198 : 2 Q.B. 504, Patterson, J., expressed thus:
Now, I quite concede that the word 'occupy' applies to a house, conveys to any man the meaning of living in the house; ninety-nine persons in a hundred at least would so understand it - Even actual occupation" would not necessarily mean 'residence', because a man might dwell in none Parish and rent a house and land in the adjoining one occupying it by his servants. Some other words therefore, are necessary to show residence.
Wightman, J., explicitly "A man may occupy either land or dwelling house without residing. "The definition of landlord includes guardians, trustees and receivers for any father person and if such persons happen to be more than one should they all or all the legal owners reside in the premises in order to invoke the aid of Clause 9(3)(i) House Rent Control Order? In this case respondent 2 is not an individual person, but an association the members of which cannot possibly reside together. But they want to conduct a school and for this the building must be in their occupation, directly if the members themselves conduct it or constructively if it is done through others. Clause 9(3)(b) states that if the Controller is satisfied that the claim of the landlord is bona fide, he can direct the tenant to put him in possession of the building......
18. Ramniklal Pitambaradas Mehta v. Indradaman Amratlal Sheth , was a case relating to Bombay Rents, Hotel and Lodging House Rates Control Act. In that case, the Landlord obtained physical possession of the property on the ground that he required it for his personal occupation. Within a period of one month, he demolished the entire structure. "The question that came up for consideration was, whether the demolition amounts to 'occupation'. Their Lordships held that the occupation' need not be identical with the tenant's occupation, and, if any alteration is to be made, the landlord is entitled to do that, and if he demolishes the building for the purpose of re-erecting the building, that also amounts.....to 'occupying the buildings'. The act of demolition was taken as an over tact on the part of the landlord after obtaining possession. Paragraphs 14 and 15 of the Judgment are relevant in this connection, They read as follows:
There are provisions in the Act which ensure that the provisions of Clause (g) are not abused. Section 17 provides that if the premises are not occupied within a period of one month from the date of landlord recovers possession or the premises are re-let within a period of one year the said date to person other than the original tenant, the court may order the landlord, on the application of the original tenant, within the time prescribed, to place him in occupation of the premises on me original terms and conditions. This tends to ensure that a landlord does not eject a tenant unless he really requires the premises for occupation by himself.
We are therefore of opinion that once the landlord established that he bona fide requires the premises for his occupation, he is entitled, to recover possession of it from tenant in view of the provisions of Sub-clause (g) of Section 13(1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alteractions.
19. In Amar Singh and Anr. v. Ram Rakha , the question raised was regarding East Punjab Urban Rent Restriction Act. There the ground for eviction was, the tenant has ceased to occupy the building. Paragraphs 5 and 6 of the judgment which read as follows? make it clear that the learned Judge meant 'occupation' as 'actual users'.
This precise point has been the subject-matter of some decisions in this Court. In Smt. Shakuntala Bawa v. Ram Parshad (1963)65 Punj L.R. 103, Falshaw, C.J., had an occasion to deal with this matter and he observed:
Whether for all practical purposes the tenant had ceased to reside in the house in dispute which was situate in Hissar and had gone to reside at Delhi, only visiting Hissar very occasionally for short periods and even then not using the house in the sense of sleeping there. Held that, the mere presence of the furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2)(v) of the East Punjab Urban Rent Restriction Act. The word 'occupation' means occupation in the sense of actual user.
In the authority, learned Judge relied on an earlier decision of Harnam Singh. J., in Baij Nath v. Badhawa Singh (1956)58 Punj. L.R. 236, in which the following observations of Ramaswami, j. (C.P. Sinha, J., concurring) in Firm Ram Kishan Shah Etwari Sahu v. Jmuna Prasad , were referred to:
As observed in, Rex v. St. Pancras (1877)2 Q.B.D. 581 at 588;
Occupation includes possession as, its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of vacant house is in possession and may maintain trespass against any one who invades it, but as long as he leaves it vacant he is not in occupation nor is he an occupier.
20. Krishanlal Ishwarlal Desai v. Bai Vijkor and Ors. , was a case under Bombay Rents, Hotel and Lodging House Rates Control Act. Section 17(1) of that Act. which is similar to Section 10(5) of our Act. which enabled the tenant to re-occupy the building in case the landlord, after taking possession of the same, did not occupy the same within a period of one month. Their Lordships held thus:
It is clear that when Section 17(1) refers to the requirement that when Section 17(1) refers to the requirement that the premises must be occupied by the landlord, the occupation intended by the provision is different from possession because the first clause of Section 17(1) makes a clear distinction between occupation and delivery of possession. The effect of this clause is that when a landlord who has obtained a decree for possession executes the decree and obtains possessions of the premises in question he must occupy them in terms of the case made out by him under Section 13(1)(g) and held proved at the trial. Whether or not the occupation of the landlord should be for the same purpose which he set out at the trial or can be for a different purpose, is a question which it is unnecessary is to decide in the present appeal. What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was on the finding of the District Court, done by the appellant on October 24,1957. That means that the appellant occupied the premises beyond the period of one month prescribed by Section 17(1).
Their Lordships further held that the effect of this Clause is that when a landlord who has obtained a degrees for possession executes the decree and obtains possession of the premises in question he must occupy them within a period of one month from to date and on which he recovers possession. The said decision makes it clear that even if the landlord continues to be in possession of the scheduled premises, he must occupy the same, in the sense that he must make use of the same. The said decision clearly clinches the issue in this case.
21. The learned Counsel for the petitioners relied on two decisions of the Apex Court, namely, Babu Singh Chauhan v. Smt. Rajkumari Jain and Ors. and Bimla Devi v. First Additional District Judge . In the first case, the landlady stored household articles in the building, but was residing elsewhere. By storing the household articles, their Lordships said, that amounts to occupation, in the sense that it has been used for a purpose, and 'occupation' does not necessary mean 'residences'. Their Lordships have held thus:
Possession by a landlord of his property may assume various forms, A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it in-charge of servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law.
In the latter case Bimla Devi First Additional District Judge (1984)2 S.C.C. 582, their Lordships while interpreting the law, have held thus:
It is true that the Court used the word "possession", but in Explanation (iv) to Section 21(1)(b) the word used is 'occupation' and not possession but this Court treated the word 'possession' as being a synonym of 'occupation'. In Webster's Third New International Dictionary, the word occupation' has been defined at page 1560 thus:
Occupation to take possession of. occup V. employ.
The Blacks Law Dictionary (Fifth Edn.) defines 'occupation' at page 82 thus:
Occupation-Possession: control: tenure: use. In Corpus Juris Secundum (Vol.67) at page 74, 'occupation' has been mentioned thus:
The word may be employed as referring to the act or process of occupying, the State of being occupied, occupancy, or tenure.
This Court in the observations, extracted above, has clearly pointed out that possession; or 'occupation' may take various forms and it was expressly held that even keeping the household effects by the owner is an act of occupation. It is, therefore, manifestly clear that even if a landlord is serving outside or giving with his near relations but makes casual visits to his house and thus retains control over the entire or a portion of the property, he would in law be deemed to be in occupation of the same. Therefore, we are unable to accept the argument of Mr. Shanthi Bhushan that the essential ingredient of Explanation (iv) has not been made out, there being no actual physical occupation by the landlord of the portion retained by him. Indeed, if the broad argument put forward by the counsel is to be accepted then that would destroy the very concept of constructive or actual possession or occupation. For instance, even if a house is not let out to anybody but is (sic) up, can it be said that the owner who is (sic) there but has kept his household effects, would not be deemed to be in occupation of the same? The answer must necessarily be in the negative.
22. This Court had occasion to consider the word 'occupation' in A. Gulam Mohammed v. A.K.M. Pichai Maracair (1981) 1 M.L.J. 99. There, the question that came up for consideration was, whether the tenant had ceased to occupy the building. On facts, it was held that the tenant was doing business and he was making use of the premises by keeping his articles therein. While interpreting the section, learned Judge followed an earlier decision of this Court reported in Abdul Rahim and Brothers v. Selvan Brothers (1956)1 M.L.J. 237. Following the said decision, it was held that the requirement of the Act will be satisfied if he occupies it and keeps the furniture in the premises. That also means, that even if the tenant is not residing or doing business in the premises, he uses it for. the purpose of storing his materials. So, there is some user of the building. In the said decision (1981)1 M.L.J. 99, the learned Judge held thus:
The two requirements to be fulfilled before an order for eviction can be obtained by a landlord under Section 10(2)(iv) of the Tamil Nadu Buildings (Lease and Rent Control) Act are: (1) the landlord must establish that the tenant has ceased to occupy the building for a continuous period of four months and (2) that there was no reasonable cause for the same. The word (occupy) means to take possession of or "to hold and have in possession." It was not in dispute in the present case that the respondent was keeping the articles required in connection with his business inside the premises in question. Whether this would amount to occupation of the building or not has to be considered in the light of the surrounding circumstances and the intention of the parties.
The evidence in this case clearly and categorically discloses that the, respondent was in effective occupation of the premises in question by not keeping the articles required in connection with his business there, but also carrying on, though not regularly Jus business through his agents and that would suffice, to hold that the tenant was still in occupation of the building." On, 8.1.1985 a learned. Judge of, this Court (Ratnam., J.) has pronounced two judgments, viz., (1) C.R.P. No. 1868 of 1984 and (2) C.R.P. No. 2441 of 1984. Both are reported in 98 L.W. 353 and 281 respectively. Mrs. N.S, Rao v. Ramkumar and Anr. C.R.P. No. 1868 of 1984, 98 L.W. 353 and Sundaram v. Jothi Bai C.R.P. N0. 2441 of 1984, 18 L.W. 281. The said decisions have exhausted the entire law on the subject. At page 353 of the said Reports, the learned Judge has held thus:
....even on this basis that the respondents (landlord) have kept in their custody the key of the vacant premises, which had since fallen vacant, and nothing more, it cannot be said that the respondents are already in occupation of a residential building of their own for purposes of Section 10(3)(a)(i) of the Act with reference to that portion so as to disentitle them from maintaining an application under Section 10(3)(a)(i) of the Act on the ground that the appropriate remedy in such a case would only be the filing of an application under Section 10(3)(c) of the Act.
In that case, the learned Judge held that the mere custody of the key of the building which is lying vacant will not amount to occupation.
23. In the decision reported is Sundaram v. Jothi Bai 98 L.W. 281, She learned Judge has held thus:
....a careful consideration of the provisions of the Act clearly points out that there is, a recognition thereunder of a well marked distinction between 'occupation' and 'possession' occupation" means the act of occupying and connotes either actual presence in. the building with an intention to do so and would comprehend a case where with such an intention the building is made ready or kept in readiness for such use with all the essential requirements either for residence or for carrying on business, as the case may be or manifested at least by some overt Act in that behalf. In other words, occupation of a premises. Undoubtedly, would include possession of it, though mere possession, of it alone may not be sufficient to constitute occupation."
24. This being the law, on the basis of the evidence let in, it cannot be said that the petitioners have occupied the building after they obtained possession 1.2.1987. Even in the objection (extracted above), they have not stated that they made use of the building/for any purpose within one month from the date on which they obtained possession. Of course, even on the date when they filed, the objection, the building was not used as a pawnbroker's office. The evidence of P.W.2 and R.W.1 makes this clear. There is also another circumstances against the petitioners. The petition for eviction was filed on the ground that they want to make use of the scheduled promises as pawnbroker's office. The said business can be done only after obtaining licence. They applied for licence only in August, 1987, long after the expiry of one month from the date of which they obtained possession. It was only in December, 1987, licence was issued in their name. Even if the mother of the petitioners was laid up, or was under care, the Statute does not give any concession for not occupying the building in time.
25. The appellate authority has appreciated the entire evidence and held that the petitioners have not occupied the building within the statutory period. It is also a finding of fact.
26. The case (revision petition) was posted for orders on 17.3.1995. On that day, before I pronounced the Orders, learned Counsel for the petitioner submitted that he has to make some more submissions in this case. So, I could not pronounce the order on that day.
27. The additional submissions that are made are: (1) Section 10(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act is in the nature of restitution, and hence the application filed before the Rent Controller is not maintainable, and that it should have been filed as an execution petition. Consequently, under Section 18, the appeal before the appellate authority was incompetent. (2) Section 10(5)(a) and (b) of the Rent Control' Act, read together, shows that the application ought to have been filed within one month from the date when the right to apply accrued, and since it has not been filed within the time, the application is barred by limitation.
28. The learned Counsel for the petitioners relied on certain decisions of this Court, to substantiate his contentions, which I will refer to hereafter.
29. The additional contentions were answered by the learned Counsel for the respondents.
30. How far the contentions of the learned Counsel for the petitioners can be accepted is to be considered.
31. This first contention that is raised is, Section 10(5) of the Rent Control Act which enable the tenant to get back possession of the building according to him, is in the nature bf a restitution. This contention cannot be accepted. 'Restitution' in legal parlance means 'restoring the person to his original position. It contemplates a case where a person has been wrongly dispossessed and subsequently the wrongful dispossession is to be rectified by driers of court. It contemplates a case where there is a reversal of an original order, and in the meanwhile, he is dispossessed. The consequence of the reversal of the order in effect enables the person wrongly dispossessed to get back possession. As far as possible the law contemplates that he must be compensated for the wrongful dispossession also.
32. Section 10(5) of the Rent Control Act is not such a case. Here, there is no question of wrongful dispossession. He has been dispossessed by orders of court, and there is no reversal of the order. Once he is dispossessed there is a termination of all proceedings. The order of dispossession pursuant to which he is dispossessed is not varied in any subsequent order, either in Appeal or in Revision or in any collateral proceeding. Section 10(5) of the Rent Control Act contemplates a safeguards against improper evictions effected by unscrupulous landlords. It is a safety valve to protect the rights of the tenant. Though in effect it is a restitution, really it is a case where the tenant exercises a statutory right. It is not in pursuance of any order which is varied subsequently. The entire scheme of the rent control legislation stands on the bona fides of the claim for eviction on various grounds. If an order of eviction is allowed on a particular ground on the basis of the allegations of the landlord he has to substantiate the same even subsequent to the eviction. In case the bona fide is not substantiated as required under the Act, it provides a right to the tenant to get back possession. Section 10(5) and Section 16 (1) of the Rent Control Act are instances of such safeguards.
33. The application is to the Rent Controller and not before a civil court. Section 18 of the Act says that when Rent Controller deals with execution of the matters, he shall have all the powers of a civil court, and the bitter of eviction shall also deemed to be an order of civil court. When the Act says that the application is to be filed before" the Rent Controller, it naturally follows that it is hot exercising the power in execution, but only as a rent controller, Section 23 of the Act enables the affected party to file an appeal against the order. So, the contention of the learned Counsel for the petitioner that the matter arises in execution and hence there is bar under Section 18 for filing an appeal has to be rejected. In taking this view, I am supported by the decision reported in Rama Iyer v. Lakshmi Ammal 1979 K.L.T. 65, Section 11(12) of the Kerala Buildings (Lease and Rent Control) Act, 1965 provides for a similar contingency. In that case, after eviction, the tenant filed an application for restoration, alleging that the landlord has hot occupied the building within the time stipulated. The rent controller accepted the contention of the landlord and dismissed the application. The matter was taken in appeal. The appellate authority returned the appeal for presentation to the proper court on the view that the application for restoration is in the nature of a restitution and hence has to be filed before the executing court, and, therefore, appeal was not maintainable. Against the said direction, revision was taken to the District Court. The District Judge held that the order of the rent controller is not an order in execution, but an order passed by him in exercise of the power under the Statute and hence an appeal is maintainable. The matter was taken before the High Court. The High Court upheld the finding of the District Judge and held that the tenant is exercising only a statutory right. While considering the same, the learned Judge held thus:
The view taken by the District Judge is plainly right. The order passed by the Rent Control Court was not an order in" execution of the order for eviction as sought to be maintained by the petitioner, but an order passed on an application under Section 11(12). The order for eviction has spent itself when the petitioner surrendered the building and even if there was any proceeding by way of execution it would lie before the Munsif by virtue of Section 14. Section 11(12) confers a statutory right on the quondam tenant-the tenant who was evicted - to apply for restitution to the rent control court, if the landlord fails to occupy the building within one month of the delivery. Should the rent control court make an order would certainly be capable of execution under Section 14 which covers orders passed, inter alia under Section 11. The order under Section 11(12) although it bears some semblance to a proceeding in restitution, is not an order passed by the executing court the Munsif, but by the Rent Control Court in virtue of the powers under that sub-section. The jurisdiction to order or conversely to refuse restitution is vested in the rent control court and not in the executing court. The order is thus appealable to the appellate authority under Section 18 of which Sub-section (2) makes orders, passed by the rent control court appealable at the instance of aggrieved persons. The circumstances that the petitioner chose to describe his application as an "E.A." is of no consequence rightly under Section 11(12). It is also worth remarking that if the order is one in execution- which is not - the remedy of the petitioner would not have been an appeal to the District Judge but a revision under the Proviso to Section 14. The order of the District Judge is right and this revision fails.
Assuming that the application has to be filed in the execution, the said contention is repelled for the following reason.
34. In the application for restoration, the respondents have specifically stated that the rent controller is having the charge of execution as jurisdiction and the power to order restitution. The same is not denied. Further as per the decision reported in Ramankutty Guptan v. Avara , the said contention also cannot be accepted. The Supreme Court was considering a case under Section 28 of the Specific Relief Act, 1963 which pertains to rescission of contracts. That section says that the application has to be filed 'in the same court. In the said decision, their Lordships interpreted the meaning of the words 'same court' as the trial court. But the application for rescission was filed in that case before the executing court. In spite of the same, their Lordships refused to interfere with the matter. The learned Judges held thus:
.....It was open to the court to exercise the power under Section 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same court in which the original suit was filed, namely, the court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law......
35. Section 11(12) and (13) of the Kerala Buildings (Lease and Rent Control) Act are similar to Section 10(5)(a) and (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. They read as follows:
11 (12) where a landlord who has obtained possession of a building in pursuance of an order under Sub-section (3) does not occupy it without reasonable cause within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date the tenant who has been evicted may apply to the rent control court for an order directing that he shall be restored to possession of the building and the court shall make an order accordingly not with standing anything contained in Section 4.
11 (13) Where a tenant who is entitled to apply for possession under Sub-section (12) fails to do so without reasonable cause within one month from the date on which the right to make the application accrued to him, the officer referred to in Sub-section (1) of Section 4. shall have power, if the building is required for any of the purpose or for occupation by any of the Officers or persons specified in Sub-sec:(3) of that section to give intimation to the landlord that the building is so required, and thereupon the provisions of Sub-sections (5) and (8) of Section 4 shall apply to the building;
Provided that this sub-section shall not apply to a building the monthly rent of which does not exceed fifteen rupees.
36. The second contention that is raised by the learned Counsel for the petitioners is that the tenants should have filed the application within one month from the date on which the right to make an application has accrued to him. In this case, the contention is that the application has not been made in time, and hence the landlords are getting an indivisible right to continue in possession. It is further contended that since the application was not filed within the statutory time, the tenants have lost all their rights to get restoration.
37. This contention is taken for the first time only during today's arguments in the revision. This contention was not taken either in the objection or in the memorandum of revision petition. Even at the time of initial arguments in this revision, no argument was put forward on the ground of limitation. But in spite of the same, being a question of law, on admitted facts, this Court allowed him to raise that contention.
38. The application for getting restoration of possession was filed before the rent controller on 3.8.1987 as seen from the certified copy of the decree. It is seen that the application was filed with some defect and the defect was cured and the application was represented on 25.9.1987. So, naturally, the application must be deemed to have been properly presented on 3.8.1987. In this connection, it is also worthwhile to note that the application for getting licence for con-ducting a pawnbroker's business was applied only on 24.8.1987.
39. Section 10(5)(a) of the Rent Control Act contemplates an application before the rent controller. A reading of Section 10(5)(b) of the Act makes it clear that it is not a question of limitation that is provided under the Statute. The tenant is not losing a right merely because the period has expired. What it contemplates is, the Government or the Authorised Officer exercising the powers under Section 3 of the Act, are barred from taking any action against the landlord when the building remains vacant. It is really a baron the part of the Government or the authorised officer to requisition the building for the period mentioned therein. Under Section 3(5) of the Rent Control Act, the Government is entitled to take possession of the building and demand the landlord to hand over possession to the same, once an intimation is received that the building is remaining vacant. Section 3(9) of the Act empowers the Authorised Officer to summarily disposses any landlord, tenant, or other person occupying any building in contravention of the provision of this section or any landlord who fails to deliver to the Government possession of any building in accordance with the provision of Sub-section (5) and occupy the same. It is this power of the Government under Section 3(5) and that of the authorised officer under Section 3(9) of the Rent Control Act that is sought to be protected by the statute. Again, Section 10(3)(a) and (b) of the Act contemplates two different contingencies and are mutually exclusive. If within one month, the tenant is not making an application, the Government or the authorised officer is entitled to take steps forgetting possession. In case the tenant takes the initiative to take possession the tenant is also entitled to file petition before it. If the Government or the Authorised Officer is excusing the delay, or no orders are passed by the Government or the authorised officer that it requires the building for itself the landlord cannot say that the application is barred by time. In taking this view, I am supported again, by two decision of the Kerala High Court, namely, Thomas v. Kunji Thomman 1981 K.L.T 708 and Ramaktishnan v. Vasudevan 1986 K.LT. 703.
40. In Thomas v. Kunji Thomman 1981 K.L.T. 708, a learned Judge of the Kerala High Court held as follows.
Sub-section (13) of Section 11 has to be read along with Section 4 of the Act, which empowers the Accommodation Controller to allot vacant building. Where a landlord fails to occupy the building in pursuance of an order under Section 11(3) and the tenant also fails to seek restoration under Section 11(12) the building remains vacant and the purpose of Section 11(13) is to treat it as a vacant building available for allotment under Section 4. The legistative aim is to ensure that during a period of acute shortage of housing at building does not remain vacant forman unreasonably long period the aim is not to prescribe limitation by implication, in respect of the tenant's rights under Sub-section (12). Where the tenant fails to apply for restoration in time, the accommodation controller can step in under Sub-section (13); and even then the tenant can show that he had reasonable cause for the delay. It is for the accommodation controller in proceedings under Sub-section (3), and not for the Rent Control Court in proceedings under Sub-section (12), to examine the reasonable cause, the tenant may have, and till the accommodation controller does so and arrives at a decision the tenant's right under Sub-section (12) would survive, when Sub-section (13) prescribes the consequences of the tenants failure to apply, that consequence alone can follow, and not others.
41. In Ramakrishnan v. Vasudevan 1986 K.L. T. 703, the learned Judge followed the earlier decision of the Kerala High Court in Thomas v. Kunji Thomman 1981, K.LT. 708 and held as follows:
The wordings of Sub-sections (12) and (13) of Section 11 would indicate that these two sub-sections are mutually exclusive and intended to cover two different proceedings; Sub-section (12) enabling a tenant who was evicted by a landlord in pursuance of an order under Sub-section (3) to apply to the Rent Control Court for, an order directing that he shall be restored to possession notwithstanding any- thing contained in Section 4 provided the building has fallen vacant in the manner indicated in that Sub-section, and Sub-section (13) investing power on the, Accommodation Controller to treat the buildings mentioned in Sub-section (12) as available for allotment in terms of Sub-section (3) of Section 4 unless it be, he has accepted the explanation of the tenant that he could not prefer the application under Sub-section (12) within one month from the date on which his right to apply for restoration of the buildings under that sub-section accrued. This, in short, is the scheme of Sub-sections (12) and (13) of Section 11.
42. In this connection, the learned Counsel for the petitioners relied on paragraph 10 of, the decision of the Supreme Court reported in Krishanlal Ishwarlal Desai v. Bai Vijkor . It reads thus:
Similarly a period of limitation is prescribed for the exercise of the rights conferred on the tenants by the last clause of section 17(1). This clause provides that the tenants who want to claim the protection of Section 17(1) must apply within 13 months of the date on which possession was delivered, to the landlord/ decree-holder. The scheme of Section 11(1) thus dearly, proves that all the relevant clauses have prescribed respective periods of limitation, and so, it would be idle to suggest that the liability imposed on the landlord to occupy the premises possession of which had been decreed in his favour under Section 13(1)(g) is without any relevant limitation;
It is contended that a reading of the said paragraph 10 of the said decision makes it clear that there is a period of limitation that is prescribed and hence the said decision has to be followed.
43. It is better to look into Section 17( 1) of the Bombay Rents, Hotel and Lodging House Rates Control Act itself which was discussed by the Apex Court. It reads thus:
17 (1) Where a decree for eviction has been passed by the court on the ground specified in clause (g) or (i) of Sub-section (1) of Section 13 and the premises are not occupied or the work of erection is not commenced within a period of one month from the date the landlord recovers possession or the premises are re-let within one year of the said date to any person other than the original tenant, the court may, on, the application of the original tenant made within thirteen months of such date, order the landlord to place him in occupation of the premises on the original terms and conditions and on such order being made, the landlord and any person who may be in occupation of the premises shall give vacant possession to the original tenant.
Section 17(1) of the Bombay Rent Control Act is similar to Section 10(5) of the Tamil Nadu Rent Control Act except for the fact that the application must be made within 13 months. Section 17(2) of the Bombay Rent Control Act. makes the landlord punishable with imprisonment in case he fails to surrender possession to the tenant. A reading of Section 17(1), of that Act provides that the application itself must be made within 13 months from the date of expiry of one month from the date when the landlord requires possession of the premises, Section 17(1) of the Bombay Act prescribes a period, for filing the application, whereas Section 10(5) of the Tamil Nadu Act does not prescribe any such period, That makes the distinction
44. Now I will deal with the decisions relied on by the learned Counsel for the petitioner.
45. Pichaiya v. Rent Controller, Tuticorin (1993)I M.L.J. 18, was relied on by the learned Counsel to show that the right of restitution is inherent in every court and tribunal. If the said decision is made applicable, then the application has to be filed only before the executing court. The same was followed in the decision reported in T.K. Sundamm v. V. Balraj 1982 T.L.N.J. 297. On the basis of these two decisions, the contention that is raised is, that the application has to be filed only in execution. I have already answered the same. In (1993 )I M.L.J. 18, the learned Judge was considering a case where the tenant was evicted pursuant to an eviction Order, but which was subsequently set aside. The learned Judge held that the court will not allow a suitor to suffer by reason of a wrong order and the moment the mistake is discovered it will rectify the error and put him so far as possible in the position he would have occupied had the wrong order not been passed. I have already stated that it is not pursuant to any wrong order the tenants were dispossessed. It is because of the default of the landlords, the tenants are getting a statutory right to get back possession. The tenants are also not restored to their original position. They become tenants only on getting back possession; They are not given any compensation, nor is the order of eviction changed in any way. So, both these decisions have no application to the facts of this case.
46. 'The' cause of action enabling the tenants to get back possession is one month from the date on which the right to make an application accrued to them. It is not from the date of order of dispossession or the expiry of one month after the landlords get possession. Section 10(5)(b) is not similarly worded as that of Section 16(1) of the Rent Control Act. Section 16(1) of the Act is Another provision for getting restoration of possession. A right to apply depends upon facts and circumstances. The same is not pleaded. Again, if it is a question of limitation, it is a mixed question of law and fact. It is only on proved facts that a court can come to the conclusion whether the claim is barred, especially in a case where the limitation begins to run. It depends on the date when the right to apply accrues. There is no evidence in this case to show that the tenant's right to apply has accrued before 3.8.1987.
47. Taking into consideration the above facts and circumstanced of the case, 1 'hold that the civil revision petition is without any merit, and the same is dismissed, without any order as to costs. The petitioners are given three months time to handover possession to the respondents.