Madras High Court
K.C.Chandrasekar vs C.Balasundaram on 29 July, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.07.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.1375 of 2010 and M.P.No.1 of 2010 K.C.Chandrasekar .... Petitioner vs. C.Balasundaram .... Respondent This civil revision petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order passed in RCA No.1590 of 2004 dated 18.01.2010 on the file of VIII Small Causes Court, Chennai, confirming the order passed by the learned XIV Small Causes Court, Chennai in RCOP No.1773 of 1999 dated 16.11.2004. For Petitioner : Mr.G.T.Subramanian For Respondent : Mr.V.Meenakshi Sundaram ORDER
Animadverting upon the order dated 18.01.2010 passed in RCA No.1590 of 2004 by the VIII Small Causes Court, Chennai, confirming the order dated 16.11.2004 passed in RCOP No.1773 of 1999 by the XIV Small Causes Court, Chennai, this civil revision petition is focussed.
2. Heard both sides.
3. The facts giving rise to the filing of this civil revision petition as stood exposited from the records would run thus:
(i) The respondent herein filed the RCOP invoking Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [hereinafter referred to as 'the Act'] on the ground of additional accommodation for expanding his business. The matter was contested.
(ii) During enquiry, on the side of the landlord, the respondent herein examined himself as P.W.1 along with P.W.2/Ajis Mohideen and marked Exs.P1 to P12. On the side of the tenant, the revision petitioner examined himself as R.W.1 and marked Exs.R1 to R6. Ultimately the Rent Controller ordered eviction. Being aggrieved by the same, appeal was filed before the appellate authority for nothing but to be dismissed.
4. Being aggrieved by and dissatisfied by the orders of both the Courts below, this revision has been filed on various grounds, the warp and woof of them would run thus:
The authorities below failed to apply the appropriate provision of law and analyse the evidence. The Rent Controller without any basis simply gave a finding as though the tenant was not doing business in the premises and therefore, consequently there would not be any hardship to him, which finding is antithetical to the very plea of the landlord who would categorically allege in the RCOP itself that the tenant has been carrying on business in selling electrical parts. The previous animosity which emerged between the landlord and the tenant was not at all considered by the Courts below. There was no bona fide intention on the part of the landlord in filing such an application and only in order to wreek vengeance against the tenant, the said RCOP was filed. The aforesaid facts have not been considered by both the Courts below. Simply because there was no renewal of licence on the part of the tenant, the Courts below were not justified in holding that the tenant is not doing business in the demised premises. The evidence available on record would show that by the proposal of the landlord to demolish the partition wall in between the two shops under the occupation of the tenant if carried out, the structure of the building itself would get affected. But without considering those salient features, the Rent Controller simply ordered eviction so as to enable the landlord to occupy the demised premises comprised of two shops having load bearing wall separating the two shops. As such, absolutely there is no ground for invoking Section 10(3)(c) of the Act.
5. Placing reliance on the grounds of revision, the learned counsel for the tenant would set forth and put forth his arguments, which could succinctly and precisely be set out thus:
(a) The lower Court in the process of discussing the relative hardship, went to the extent of pointing out as though the tenant was not at all carrying on business which was not even the case of the landlord himself.
(b) The shed wherein the landlord is doing his two wheeler water service business is not forming part of the building in which the demised premises is situated.
(c) Unless it could be shown that the landlord is occupying a part of the building in which the demised premises is situated, the question of requiring additional accommodation for the landlord's bona fide requirement would not arise at all. This fact was not at all considered by both the Courts below.
Accordingly, the learned counsel for the tenant would pray for setting aside the orders of both the Courts below and for dismissing the RCOP by allowing this revision.
6. Per contra, challenging and impugning the averments and contentions as put forth and set forth on the side of the tenant, the learned counsel for the respondent would advance his arguments, which could tersely and briefly be set out thus:
(a) In the counter no where it is found stated that the shed which the landlord is occupying does not form part of the building wherein the demised premises is situated.
(b) The evidence on record would exemplify and demonstrate, display and expatiate that the shed in which the landlord is doing his business is forming part of the building in which the demised shops are also situated and in such a case, for the first time, the learned counsel for the respondent cannot put forth such an argument. The learned Rent Controller incidentally while discussing on the relative hardship observed as though the tenant is not doing business.
(c) The fact remains that the licence issued by the Corporation was not renewed and for that matter, the tenant also has not produced any document to show that with the Commissioner or Sales Tax Department, his licence also got renewed. In the light of those facts, the trial Court gave such a finding as set out supra which is not cutting at the root of the very order of eviction passed under Section 10(3)(c) of the Act.
(d) The contention that bad blood started running between the landlord and the tenant anterior to the filing of the RCOP is having nothing to do with the filing of the RCOP.
(e) The Engineer's Report relied on by the landlord would clearly point out that the wall separating the two shops which are under the occupation of the tenant could be demolished by providing to the roof a lintel and as such there is nothing wrong in the findings given by both the Courts below.
Accordingly, the learned counsel for the respondent prays for the dismissal of the RCOP.
7. The points for consideration are as to:
(1) Whether the contention as put forth on the side of the tenant that the shed in which the landlord is doing business does not form part of the building in which the demised premises is situated could be pressed into service before this Court at the time of hearing the revision without the backing of the pleading, so to say without any stand having been taken in the counter filed in RCOP?
(2) Whether the lower Court in the process of considering the relative hardship was not justified in holding that the tenant was not at all carrying on business in the demised premises?
(3) Whether the tenant could call upon the Court to hold that the landlord was not justified in choosing the demised premises for his additional accommodation?
(4) Whether there is any perversity or illegality in the orders passed by both the Courts below?
POINT NO.1:
8. At this juncture, I recollect and call up the maxim:
"Judicis est judicare secundum allegata et probata : It is the proper role of a judge to decide according to the allegations and proofs."
Any amount of evidence without backing of the pleading should be eschewed is the general proposition governing the legal field.
9. I at once would like to point out that summary proceedings are contemplated under the Rent Control Act, so to say in stricto sensu the rigour of that maxim and the law of pleadings as applicable to the civil suit, cannot be pressed into service. Then the question arises as to whether the tenant without raising any plea before the Rent Controller concerning the ingredients of Section 10(3)(c) of the Act, could for the first time raise such a plea before the revisional Court. The contention raised by the learned counsel for the tenant is a very crucial plea which is capable of cutting at the very root of the RCOP itself, if it is turned out to be a true and genuine one. But so far this matter is concerned, before the Rent Controller there was no such plea taken. Had such a plea now raised before the Court, been raised before the Rent Controller then the landlord would have adduced positive evidence so as to rebut it, but that was not raised. The learned counsel for the tenant would submit that in the counter the tenant raised the plea that the landlord was not occupying any part of the building in which the demised premiss is situated and in such a case it cannot be stated that the tenant did not plead so. However, I would like to point out that such averment in the counter is different from contending that the said shed under the occupation of the landlord does not form part of the building in which demised premises is situated.
10. However, the learned counsel for the landlord would convincingly and correctly invite the attention of this Court to Exs.P1 to P5 which contain the Door No.1, Malony Street wherein he is doing business and Ex.R3 filed by the tenant relating to the demised premises would also refer to the door number as Door No.1, Malony Street and ex facie and prima facie, that shows that the premises under the occupation of the landlord and the demised premises under the occupation of the tenant constitute one building bearing Door No.1, Malony Street. Simply because a portion of the building is having RCC roof and another portion of the building is having asbestos roof, the Court cannot jump to the conclusion that both should be taken as two separate entities for the purpose of Section 10(3)(c) of the Act. No doubt, the landlord himself clearly and categorically without mincing words in the RCOP itself pointed out that the tenant is doing business in selling electrical goods and in such a case, I could see considerable force in the submission made by the learned counsel for the tenant that the Rent Controller over stepped his function by giving a finding as though the tenant is not at all doing business in the premises and thereby he would not be affected if eviction is ordered.
11. In respect of Section 10(3)(c) the following decisions could fruitfully be cited:
(i) (2001) 8 SUPREME COURT CASES 110 S.R.BABU V. T.K.VASUDEVAN AND OTHERS, certain excerpts from it would run thus:
"10. Sub-Section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) reads thus:
"11.(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use."
11. A perusal of sub-section (8) makes it clear that to invoke this sub-section the landlord must show that (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub-section (3) and sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act.
14. In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters."
(ii) 2007( 3) CTC 152 RASI SILKS BY ITS PARTNER K.ARUNACHALAM VS. RASI SILKS T.A.VENKATACHALAM, an excerpt from it would run thus:
"12. . . . . . Holding that the crucial aspect is a special instance in matters arising under Section 1-(3)(c) of the Act and that there should be a categorical finding by the statutory authorities on hardship that may be caused to the Tenant by granting it, will outweigh the advantage to the landlords in K.A.Loganatha Naicker v. S.R.Balasundaram Mudaliar, 1974(2) MLJ 256, it was held thus:
"It is imperative for the authorities in cases arising under Section 10(3)(c) of the Tamil Nadu Act (XVIII of 1960), to give specific finding whether the hardship the tenant is likely to suffer would outweigh the advantage to the landlord or vice versa. Unless this aspect is noticed and adjudged upon by the statutory authorities, there is no complete enquiry as contemplated in respect of the petitions arising under Section 10(3)(c) of the Act."
21. Contention of Tenant is that the landlords can expand the hotel business on the open space available, which is abutting the premises. In his evidence, P.W.1 has stated the open space cannot be utilised for running the hotel. It is well settled that the landlord can choose the portion required and it is not for the Tenants to dictate terms. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999(1) MLJ 233, this Court has held that the landlord can choose the portion required and it is not for the tenant to dictate terms. It is not the object of the provision to weigh the hardship of the Tenant as against the test of the landlord on a delicate scale, giving the benefit of the slight tilt in favour of the tenant."
It is therefore clear that before ordering eviction the Court has to be satisfied that the ingredients of the aforesaid provisions of law have been complied with.
12. The hardship of the tenant and the benefit which the landlord would get on evicting the tenant should necessarily be taken into account before ordering eviction under Section 10(3)(c) of the Act. Here the contention on the side of the landlord was that because the licenses were not renewed in favour of the tenant and that the documents filed to show alleged flourishing business of the defendant were not sufficient to prove that effectively and lucratively the tenant was doing business there, the lower Court was tempted to give such a finding that the tenant was not doing business. No doubt, ex facie and prima facie there is a defect in the finding given by the Rent Controller. But this has to be seen from the facts available on record as to what would be the hardship that would be caused to the tenant in the event of ordering eviction and the consequential benefit that would accrue in favour of the landlord and out of the two which would outweigh the others. It is obvious and axiomatic that a tenant selling electrical goods could shift his business to some other place as the demand for electrical goods would always be there every where and it cannot be contended that only in a particular premises in a specified area he would be able to do it. No doubt by shifting the business in electrical goods from one place to another, it would take more time for him to lay his root in the new place. But on the other hand, the benefit that would accrue to the landlord should be seen correspondingly. If the landlord is not given with the demised premises, then certainly he would not be able to expand his business in a fitting manner and also flourish further. No doubt, the learned counsel for the tenant would point out that there is still open space available for the tenant to expand his business. I recollect and call up the maxim:
Rerum suarum quilibet est moderator et arbiter Every one is the manager and disposer of his own matters.
13. The owner of the property is having the right to decide as to how he has to use his own property and it is not for the tenant to dictate terms to the landlord. Relating to proposal to demolish the wall separating the two shops under the occupation of the tenant, the Engineer has given his report that even though it is load bearing wall, that could be made good by providing lintel and it is the botheration of the landlord with which the tenant need not worry about. Here it has to been seen whether the landlord required the demised premises for his bona fide purpose. From the document marked before the Rent Controller it is quite obvious and axiomatic that the landlord is doing business in servicing two wheelers. I recollect the maxim:
"Acta exteriora indicant interiora secreta Outward acts indicate the thoughts hidden within."
Here it is so clear that the landlord is already doing business in servicing motor vehicles. Naturally in the process of doing service, he has to provide spare parts also. In such a case, his intention is objectively proved that he wants the demised premises only for his bona fide requirement.
14. I recollect and call up one other maxim:
Post hoc (ergo propter hoc) : After this; After this time; hereafter, Simply because in Ex.P8 there is a reference to some past untoward event between the relatives of the landlord and the tenant that does not mean that the subsequent filing of RCOP is having casual nexus with it. It cannot also be said that the RCOP is nothing but an offshoot of the said untoward incident. Once objectively there is evidence to demonstrate and establish the facts attracting the ingredients of Section 10(3)(c) of the Act, then it cannot be water down by showing some stray incident which erupted between the relatives of the landlord and the tenant. Hence, in the facts and circumstances of the case, I am of the view that there is no merit in this revision. Inasmuch as the tenant is doing business in the demised premises for a pretty long time, I would like to grant six months' time to vacate, subject to payment of rent regularly and an affidavit to that effect shall be filed within fifteen days.
Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
gms To
1. The VIII Small Causes Court, Chennai.
2. The XIV Small Causes Court, Chennai