Madras High Court
T.S. Subramania Aiyer vs P.K. Srinivasan By Power Agent, B. Ramu on 23 August, 1999
Equivalent citations: (1999)3MLJ391
ORDER S.S. Subramani, J.
1. Tenant in R.C.O.P. No. 24 of 1992, on the file of Rent Controller (District Munsif), Kumbakonam, is the revision petitioner.
2. Landlord sought eviction of tenant/revision petitioner on three grounds, namely, (1) Default in payment of rent from 1.4.1991 to 31.10.1992, i.e., for a period of 18 months at the rate of Rs. 70 per month. According to the landlord, the said default is wilful. (2) The building in question is required bona fide for own use and occupation of the landlord; and (3) The building requires immediate demolition and reconstruction.
3. As per Ex.A-13, a notice dated 25.8.1992 was served on the tenant in terming him that he has committed wilful default in payment of rent. For this, Ex.A-14 reply dated 1.9.1992 was sent. It is further averred that in spite of the notice, tenant did not pay the rent. It is said that the landlord's son is serving Army and he is due for retirement from service, and the building is very much needed for the landlord's family. It is also averred that the building requires immediate demolition and reconstruction since it is a dilapidated condition. It is more than 75 years old. It is constructed of mud wall. Landlord has sufficient means to put up a new construction. He has also undertaken that he will take necessary steps for demolition and complete the reconstruction within three months from the date of taking possession. He has also taken steps to get the plan approved by the local authority.
4. In the counter-statement filed by tenant, revision petitioner, he denied all these allegations. According to him, the original rent was Rs. 10 at the time when he took the building on rent in the year 1958. It was increased from time to time, and the present rate of rent is Rs. 70 per mensem. According to him, the landlord wanted to sell the building, and, therefore, he was asked not to pay the rent. He is not a defaulter muchless wilful defaulter. Regarding the requirement for bona fide own use and occupation, and demolition and re-construction also, those grounds are seriously disputed by tenant.
5. Rent Controller, as per order dated 14.3.1997 dismissed the petition. Rent Controller held that the landlord wanted to sell the building to the petitioner herein, and it was on the request of the landlord rent was not paid and, therefore, it is not a case of supine indifference on the part of the tenant in not paying the rent. He further came to conclusion that once the landlord has expressed a desire to sell the building, his subsequent change of mind that he wants to occupy the building is not bona fide. For the same reason, the ground of demolition and reconstruction was also found against.
6. Against the said findings, landlord filed R.C.A. No. 10 of 1997. The Appellate Authority, after re-appreciating the evidence, allowed the eviction petition on all grounds. The Appellate Authority was of the view that the contention that the tenant did not pay rent only at the instance of landlord is not fully correct. The landlord is residing at Delhi. The Appellate Authority also found that there was some suggestion to sell the house and for the month of April, 1991 alone, tenant was not asked to pay the rent, and the same was allowed to be retained by him. But, thereafter, there was no representation by landlord that the tenant need not pay the rent. At any rate, after Ex.A-13 legal notice, informing the tenant about the default, there is no excuse for the tenant to contend that he is not a wilful default. No attempt was made by tenant to pay rent at that time, and the subsequent payment before the rent controller will not absolve him being termed as a wilful defaulter. With regard to the claim for eviction on the ground of bona fide requirement for own occupation, the Appellate Authority held that there was some suggestion on the part of the landlord to sell the property. But he changed his mind since his son who was employed in Military was likely to be transferred and he was also about to retire, and therefore, he cannot continue in Delhi, and he wanted to occupy the building which was not sold. Landlord's claim was, therefore, found to be bona fide. Regarding demolition and reconstruction also, the Appellate Authority found that the building is very old and it requires demolition and reconstruction, and the landlord has also satisfied all the statutory requirements for getting eviction. All the claims were found to be bona fide. The said finding of the Appellate Authority is challenged in this revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
7. Before going to the merits of the case, this Court must remind itself about its powers under revisional jurisdiction.
8. In Rafat Ali v. Sugni Bai , their Lordships were considering the scope of revision. That case was one under the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960, which is in pari materia with the provisions of the Tamil Nadu Act. After extracting Section 22 of the Andhra Pradesh Act, in paragraph 8 of the judgment, their Lordships have held thus:
The appellation given to the section makes it unmistakably clear that the power conferred thereunder is revisional which means, it is a power of supervision. It is well nigh settled that a revisional jurisdiction cannot be equated with appeal powers in all its parameters. The power to call for and examine the records is for the purpose of the High Court to satisfy itself as to the "legality, regularity or propriety" of the order of the lower authority. Even such a widely-worded frame of the section may at best indicate that the revisional powers are not so restricted as in the enactments wherein the words are not so widely framed. Nonetheless, they remain in the realm of supervisory jurisdiction. In a recent decision, we had occasion to consider the scope of revisional jurisdiction under certain rent control enactments - Vide: Sarla Ahuja v. United India Insurance Co. Ltd A.I.R. 1998 S.C.W. 3451. Reference was then made to a decision wherein similar words used under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 were considered (Vide: Sri Raja Lakshmi Dyeing Works v. Kandaswamy ). A two Judge Bench has observed therein (at S.C.C. p.262, para 3) that, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority.
After adverting to it we have stated in Sarla Ahuj:
The High Court in the present case has reassessed and reappreciated the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertained whether the conclusion arrived at by the fact-finding court is wholly unreasonable.
[Italics supplied]
9. In Sarla Ahuja v. United India Insurance Co. Ltd. A.I.R. 1998 S.C.W. 3451, their Lordships have dealt with a case under the Delhi Rent Control Act, where in Section 25-B of the Act the words used are: 'Provided that the High Court may, for the purpose of satisfying itself that an order made by the Rent Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit'. [Italics]. Their Lordships considered as to what is meant by 'in accordance with law' in paragraphs 6 to 11, which read thus:
The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law." In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available.
Although the word "revision" is not employed in the proviso to Section 25-B(8) of the Act, it is evident from the language used therein that the power conferred is revisional power. In legal parlance distinction between appellate and revisional jurisdiction is well under stood. Ordinarily, appellate jurisdiction is wide enough to afford a re-hearing of the whole case for enabling the appellate forum to arrive at fresh conclusions untrammelled by the conclusion reached in the order challenged before it. Of course, the statute which provides appeal provision can circumscribe or limit the width of such appellate powers. Revisional power, on the contrary, is ordinarily a power of supervision keeping subordinate tribunals within the bounds of law. Expansion or construction of such revisional power could depend upon how the statute has couched such power therein. In some legislations revisional jurisdiction is meant for satisfying itself as to the regularity, legality or propriety of proceedings or decisions of the subordinate court. In Sri Raja Lakshmi Dyeing Wors v. Rangaswamy , this Court considered the scope of the words (the High Court may call for and examine the records... to satisfy itself as to the regularity of such proceedings or the correctness, illegality or propriety of any decision or order....") by. which power of revision has been conferred by a particular statute. Dealing with the contention that the above words indicated conferment of a very wide power on the revisional authority, this Court has observed thus in the said decision (At P. 1255 of A.I.R.) "The dominant idea conveyed by the incorporation of the words "to satisfy itself: under the section appears to be that the power conferred to the High Court under the section is essentially a power 'Of superintendence. Therefore, despite the wide language employed in the section, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the findings of the subordinate authority.
Dealing with Section 32, Delhi and Ajmer Rent (Control) Act, 1952, which is almost identically worded as in the proviso to Section 25-B(8) of the Act three Judge Bench of this Court has stated thus in Hari Shankar v. Rao Girdhari Lal Chowdhury (1962)1 S.C.R. (Supp.) 933 : A.I.R. 1963 S.C. 698 at 701:
The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be over-looked that the section -in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, is controlled, by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a re-hearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.
In Malini Ayyappa Naicker v. Seth Menghraj Udhavadas , another three Judge Bench of this Court was considering a similarly worded proviso in Section 75(1) of the Provincial Insolvency Act, 1920. Though learned Judges did not give an exhaustive definition of the expression "according to law," a catalogue of instance in which the High Court may interfere under the said proviso was given in the decision as the following (para 7 of A.I.R.) "They are cases in which the court which made the order had no jurisdiction or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders, wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere." The Bench has, however, cautioned that the High Court should not interfere merely because it considered that, "possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.
Learned single Judge of the High Court in the present case has reassessed and re-appraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction.
No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact finding court is wholly unreasonable. A regarding of the impugned order shows that the High Court has overstepped the limit of its power as a revisional court. The order impugned, on that scores, is hence vitiated by jurisdictional deficiency.
[Italics supplied]
10. From the above recent decisions of the Honourable Supreme Court, it is clear that even though this Court is entitled to look into the evidence, that can only be for the purpose of considering whether the Authorities below, and in this case, the Appellate Authority, has exercised the discretion properly, and whether the reasoning of the Appellate authority in the circumstances of the case, is reasonable. Merely because this Court, on a reappreciation of evidence can come to a different conclusion, it cannot be held that the judgment of the Appellate Authority is not correct.
11. If the view taken by the Appellate Authority is also possible, then the powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act need not be exercised.
12. I will first consider the question whether the landlord required the schedule mentioned building for his own occupation. The Rent Controller was of the view that since the landlord has expressed his intention to sell the property, a subsequent change of mind will show a lack of good faith and, therefore, the claim was rejected, The Appellate Authority took a different view and held that may be the landlord at the time when he wrote letters to the tenant, might have thought of disposing of the property. But, except for one or two letters, tenant also did not think of taking the sale deed, nor did the landlord enter into any agreement of sale with the tenant. In the meanwhile, landlord's son was also about to retire from the Army, and he was also expecting transfer before retirement, in which case the landlord also cannot continue to live in Delhi. In these circumstances, landlord thought of coming back to Kumbakonam and occupying the schedule mentioned house. It has also come out in evidence that the landlord is not having any other building anywhere in India. After retirement from service from the Telecommunication Department, landlord was residing with his son. The Appellate Authority believed the statement of the landlord that even though the son is about to retire, he is likely to be called at any time for actual service, and at that time, the son cannot take his family. Naturally, he will have to take shelter in some other building. After retirement, the landlord wanted to occupy the building. The Appellate Authority also believed the case of the landlord when he said that as on date he does not want to sell the property to anyone, and, being a family house, he wanted to retain it. When he said that he cannot continue to live with his son at Delhi and wanted to occupy his own building, there is nothing improper in the finding of the Appellate Authority, that the claim of the landlord is bona fide. Such a view is possible.
13. Learned Counsel for tenant submitted that the landlord has not been examined, and only his power Agent was examined as P.W. 1 It is settled law that in rent control proceedings, there is no compulsion that the landlord alone should enter the box and depose about the case. The requirement under the Rent Control Act is that the bona fide of the landlord's case must be proved, and the court must be satisfied about the bona fides. The landlord can prove the claim in any manner he chooses. Merely because the power Agent was examined, it cannot be said that the claim of the landlord is not bona fide. The Appellate Authority has taken into consideration various circumstances part from the evidence of P.W. 1 The fact that the landlord has retired from Telecommunication Department is residing with his son, the possibility of the son getting transferred from Delhi and the consequent impossibility of the landlord to reside with his son, the bona fide desire of the landlord who is now more than 80 years to live in his own house after retirement, and the sentiments which the landlord has over the schedule building, were all taken into account, white holding, that the claim is bona fide. I do not find any ground to interfere with the finding of the Appellate Authority to take a different view.
14. In regard to the claim of the landlord for demolition and reconstruction, really that question does not arise, though he has taken a different ground for eviction. Once the landlord proves that he wants the building for his own occupation, the question whether the uses that building as it is or desires to use the same after reconstruction, is not the concern of the tenant. Even though that is the position of law, in this case, the landlord has even proved that ground also independently. The Appellate Authority has found that the building is more than 75 years old and it has been constructed with mud walls and it is not having any modern amenities. Even though the tenant contended that he has repaired the building very often, the Appellate Authority has held that it has not been shown that the building has been kept in good repair. Regarding the means of the landlord. Appellate Authority has held that the landlord is a retired servant of the Telecommunication Department. His son is employed in the Army. The retirement benefits of the landlord would be sufficient to putting up a new construction. The Appellate Authority found that the landlord has got the capacity to raise funds, if he wants to reconstruct the building. Necessary plan has also been obtained, But he same expired during the pendency of the proceedings. Merely because the landlord has not detained plan and licence at the time of filing the eviction petition, that cannot be a ground to hold that the claim is not bona fide. It is well-known that merely because by filing a plan before court, the case is not coming to an end. The litigation takes years together, and asking the landlord to renew the licence year after year will not serve the purpose, for, the licence once expired cannot be made use of. Bona fides of the landlord will have to be considered in the light of other materials. Regarding the same, the Appellate Authority has found that the claim is bona fide. That finding is not liable to be interfered with in revision.
15. With regard to the claim for eviction on the ground of wilful default in payment of rent, the period of default is from 1.4.1991 to 31.10.1992, i.e., for a period of 18 months. It is seen that the parties were having very cordial relationship and the tenant was also occupying the building for years together. His own case is that he was occupying the building from the year 1958. The landlord seems to have written to the tenant that he has got some ideas to sell the property. The tenant also expressed his willingness and wanted the landlord to fix the price and also requested him to intimate as to when the same can be completed. But thereafter we do not find that any concrete step has been taken by either party to enter into any agreement of sale or to execute a sale deed. In one of the letters, the landlord has also asked the tenant to retain the rent for the month of April, 1991 and the same need not be paid by money order. He has also said that if any sale takes place, the building will be given only to the tenant. It is on the basis of this correspondence, tenant raises a contention that he was asked to retain the rent with him, and the landlord himself has agreed to get the rent as and when he come over to Kumbakonam. If this was the only correspondence, I would have agreed with what the learned Counsel for petitioner tenant argued. But, long thereafter, the landlord issued a registered notice under Ex.A-13 informing the tenant that he has not paid rent for months together and no reason is stated why rent was not paid. Ex.A-14 is the reply admitting the default committed by tenant, at the same time reiterating his case that he was asked to retain the amount. Atleast when the registered notice came, he should have sent the amount along with the reply. He has not cared to do so. Two months thereafter, the rent control petition was filed, and only when he received notice of eviction through court, he thought of depositing the entire rent in court upto 31.11.1992, before the Rent Controller. In this connection, it is also worthwhile to note that the relationship between the tenant and landlord also became strained on the landlord executing a power of Attorney in favour of P.W. 1 It is the case of the tenant that the power of attorney began to create nuisance, and his peaceful living in the house became an impossibility, and consequently he had to move a civil court for getting injunction. Even thereafter, tenant did not think of sending the amount to the landlord. As I said earlier, Ex.A-13 registered notice was sent, asking the tenant to give the rent to the power of attorney. In the reply, the tenant wanted a xerox copy of the deed of power of Attorney and consequently he could not pay the rent. One big circumstance against the tenant is that the Power of Attorney is living just three houses away from the schedule building in the same street. Therefore, the Power of Attorney is not a stranger to him. On the other hand, both of them are acquainted with each other. The conduct on the part of the tenant was taken note of by appellate authority while holding that the tenant was indifferent in paying rent, and that the indifference amounts to wilful default. That view of the appellate authority is also quite possible on the basis of the materials placed before it.
16. In the result, all the grounds urged by learned Counsel for petitioner are found against him, and consequently, the revision is dismissed, however, without any order as to court. C.M.P. No. 13213 of 1999 for stay is also dismissed.