Madras High Court
Vairam And Ors. vs M.S.R. Nageswaran on 8 August, 2005
ORDER M. Thanikachalam, J.
1. The tenants are the revision petitioners in all these Civil Revision Petitions.
2. The respondent in all the Civil Revision Petitions, has filed R.C.O.P. Nos. 38/1999, 42/1999 and 45/1999 before the Rent Controller, Virudhunagar, for eviction of the tenants/revision petitioners on the grounds that the building is required for demolition and reconstruction and for additional accommodation, invoking the provisions in Sections 14(1)(b) and 10(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called 'the Act').
3. All the petitions, were opposed by the tenants, contending that the building is not bona fidely required for the landlord for the extension of his business, after demolishing and reconstruction and that the additional accommodation sought for is also not true and that the hardship, which may be caused to the tenants by granting an order of eviction will outweigh the advantage to the landlord, with among other grounds.
4. The Rent Controller, who decided the cases separately, came to the conclusion that the building is required for the landlord for the purpose of additional accommodation, as contemplated under Section 10(3)(c) of the Act. Thus, he ordered eviction of the tenants in all the R.C.O.Ps., which were challenged before the Appellate Authority.
5. The Appellate Authority also, after considering the case and counter case of the parties, came to the conclusion that the landlord is not entitled to get an order of eviction under Section 14(1)(b) of the Act, whereas he is entitled to an order of eviction, under Section 10(3)(c) of the Act. He has also came to the conclusion, that the hardship, which may be caused to the tenant, by ordering the eviction, certainly, will not outweigh the advantage to the landlord. In this view, all the Rent Control Appeals, preferred by the tenants/revision petitioners, came to be dismissed, which are under challenge in these revision petitions.
6. C.R.P. No. 1543 of 2003 is in respect of Door No. 100/3, M.S.R. Building, Municipal Office Road, Virudhunagar. C.R.P. No. 730 of 2003 is in respect of a building bearing Door No. 30/15/7, M.S.R. Building, Krishnamachari Road, Virudhunagar and C.R.P. No. 494 of 2003 is also in respect of Door No. 100/3, M.S.R. Building, Municipal Office Road, Virudhunagar. Though for the purpose of the Act, the premises under the occupation of the tenants come within the meaning of the 'building', it is an admitted position, that all the portions are contiguous, separated only by a wall, thereby coming within the meaning of 'a single building', for all practical purposes. In all the cases, the question of law involved is one and the same, and the facts, that are to be appreciated, are also one and the same. In this view, as agreed by the parties, all the Civil Revision Petitions are taken together, and a common order is passed.
7. As seen from the R.C.O.P. Nos. 38/1999, 42/1999 and 45/1999, an attempt has been made by the landlord to get an order of eviction, invoking the provisions of Section 14(1)(b) of the Act, which was not properly considered by the Rent Controller. The Appellate Authority, considering the facts and circumstances of the cases, has recorded a finding that the provisions of Section 14(1)(b) of the Act are not applicable to the facts of the present cases and, in this view, he refused to order eviction on the ground of demolition and reconstruction, which is not challenged in these revisions and in fact, it is admitted, now, that the petitions will not come within the ambit of Section 14(1)(b) of the Act. Therefore, we have to see, whether Section 10(3)(c) of the Act could be invoked in these cases, enabling the landlord to get an order of eviction.
8. Section 10(3)(c) of the Act empowers the landlord to obtain possession of a building for additional accommodation, if he is occupying only a part of the building, whether residential or non-residential. In order to apply the said provision, it is a condition that the landlord also must be in the occupation of a portion of the same building, which was leased out to the tenant. Then only, the requirement of additional accommodation would arise. Additional accommodation could be claimed for residential as well as non-residential purposes, no dispute. The demised premises, in all the cases, are non-residential premises, comprised in a big premises, is also not in dispute. Though Section 10(3)(c) of the Act confers rights upon the landlord, to seek additional accommodation, it is not an uncontrolled one, in the sense, the landlord is entitled for additional accommodation, by mere asking. In addition to satisfying the ingredients available under Section 10(3)(c), the landlord should also satisfy the ingredients of proviso (i) to Section 10(3), which reads:
"Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord."
Therefore, before ordering eviction, under Section 10(3)(c) of the Act, it is incumbent upon the Rent Controller to satisfy himself, 'whether the hardship, which may be caused to the tenant, by ordering eviction, will outweigh the advantage to the landlord'. If the materials disclose that the hardship, which may be visiting the tenant, in case of eviction, will outweigh the advantage to the landlord, then, the Controller is competent to reject the claim of the landlord for additional accommodation. In these cases, the Rent Controller had recorded a finding, that no much hardship will be caused to the tenants, if eviction is ordered, outweighing the advantage to the landlord. But, unfortunately, as pointed out earlier, the Appellate Authority has not considered the same, whereas he confirmed the order of eviction passed by the Rent Controller, which is criticised by the learned Counsel for the revision petitioners, which I will discuss infra.
9. As seen from the provision quoted in the R.C.O.Ps. aid was sought only under Section 10(3) of the Act, not giving the Sub-sections, under which the petitioner/landlord is claiming possession. In paragraph 10 of the petition, it is said that the petitioner is doing business at D.No. 100, Municipal Office Road, Virudhunagar, adjoining the scheduled property, and therefore, he requires the scheduled property for his own use and occupation and for the expansion of his mill premises. On the above basis, a finding has been recorded by the Courts below, that the premises is required for the landlord under Section 10(3)(c) of the Act. The learned Counsel for the revision petitioners submitted that the landlord himself was not certain under what provision, he requires premises for his occupation and in the absence of specific plea, granting an order of eviction under Section 10(3)(c) is erroneous. By going through the evidence, as well as the findings of the Courts below, I am unable to subscribe my view to the above said submission. Despite the fact that the petition does not contain the specific provision for additional accommodation, viz- 10(3)(c), the parties were fully aware of the fact that the claim of the landlord was only for additional accommodation and in this way alone, evidence has been let in, argued and case was decided. Therefore, taking advantage of the pleadings available in the R.C.O.P., at this belated stage, it is not open to the tenants to allege that the landlord is not entitled to get an order of eviction, under Section 10(3)(c) of the Act. Thus, ignoring this defence, we have to see, whether the buildings or the premises, which are in the occupation of the tenants, are part of the building, which is in the occupation of the landlord, so as to say that the requirements come under Section 10(3)(c) of the Act.
10. In the petition itself, it is specifically pleaded that the petitioner is doing business at D.No. 100, Municipal Office Road, Virudhunagar, adjoining to the scheduled property. As recorded by the Appellate Authority in paragraph 14 of the judgment, P.W.1 has given evidence that the mill building as well as the buildings described in the petitions are under the same construction or in the same building, which was not challenged. Therefore, all the demised premises are within M.S.R. Building, Municipal Office road, Virudhunagar, though they are having D.Nos. 100/3, 30/15/7. It is also admitted by one of the tenants, who has been examined as R.W.1, in R.C.O.P. 45 of 1999, that the mill premises is adjoining to the demised premises. The landlord is having a wholesale business in coriander seeds, for which he requires a godown to store the bags. As seen from the plan filed, all the demised premises are within the mill premises, forming part, of the same construction, though having separate entrances and door numbers. The landlord wants to convert the buildings, described in the petitions, as godown, by removing the intermediatory walls alone. The plan would suggest, if the walls between the shops are removed, it will form a single hall, thereby showing that all the buildings come within the same superstructure. Therefore, the submission of the learned Counsel for the revision petitioners, that the buildings, which are in the occupation of the tenants, are different buildings, and therefore they cannot be described as part of the building, which is in the occupation of the landlord and in this view, applying Section 10(3)(c), ordering eviction, is not possible, is unacceptable to me.
11. In Hindustan Petroleum Corporation Ltd. v. B. Saravanan and 7 Ors., 1997 (2) LW 81, this Court, while considering the case of a landlord, when two adjoining properties/buildings are owned by the same person, whether Section 10(3)(c) could be invoked, had answered in the negative, which is relied upon by the learned Counsel for the revision petitioners, to take away the claim of the landlord, outside the purview of Section 10(3)(c). Further, while considering the scope of Section 10(3)(c), it is held:
"It is only when the landlord says that he cannot meet the requirements or that the portion presently in his occupation is not sufficient for his needs, and he also wants to occupy that portion of the building occupied by the tenant, it squarely comes under Section 10(3)(c) of the Act. That means the structure or building must be occupied both by landlord and tenant. It is the occupation of both landlord and tenant in one structure that is contemplated under Section 10(3)(c). It is not the ownership of the building that matters. Even if the landlord happens to be the owner of two adjoining buildings, that will not come under Section 10(3)(c)."
Thereby showing, in order to attract Section 10(3)(c) of the Act, the structure or building must be occupied both by the landlord and tenant. As seen from the evidence of P.W.1, extracted in the above ruling, it is made clear that the demised premises was in different survey number, having different building and the portion, which was in the occupation of the landlord, was a different building. The landlord has also further stated, the demised premises does not form part of the building, which is in his occupation. Under the above said factual circumstances of the case, this Court had held, the requirement of the landlord, in that case, will not come under Section 10(3)(c), which is not applicable to the present case, in view of the position, as recorded by me, supra, that the demised premises and the building, which is in the occupation of the landlord, as mill premises, are form part of the same building.
12. In B. Kandasamy Reddiar, etc. v. O. Gomathi Amtnal, 2001 (2) CTC 177, the Honourable Apex Court has elaborately discussed the scope of Section 10(3)(c) of the Act and under what circumstances that provision could be invoked by the landlord. The Honourable Apex Court, considering the definition of the 'building', as commonly understood in general sense, as well as the definition as contemplated under the Act, analysing how part of the building also would come within the meaning of the 'building' as defined under the Act, has observed:
"...when Section 10(3)(c) refers to be landlord occupying a part of the building, it inherently refers to another part of the building being occupied by the tenant. It is true the part of the building occupied both by the tenant and the landlord would by itself constitute to be a 'building' under the definition clause. This itself reveals, which is under current that there is another part of the building or may be more than on part of the building either with tenants or landlord. If part of the building occupied by the tenant is construed to be a building, then landlord could never be in a position to occupy other part of the building. Such interpretation forgets that definition clause itself is flexible to make a 'building' to be a 'building' and a part of building to be a building also to be used accordingly wherever necessary. If interpretation sought to be given on behalf of the appellant is accepted, this would completely dismantle the purpose engrafting of opening word of Section 10(3)(c), namely, 'the landlord who is occupying only part of the building."
(emphasis supplied) Applying the above interpretation given to the 'building', if we analyses the present case, the irresistible conclusion that should be drawn by this Court is, that the landlord and the tenants are occupying the same building, though for the purpose of the Act, each portion is called 'building of its own'. Therefore, the landlord is entitled to invoke Section 10(3)(c) of the Act, which is also further strengthened by the ruling of this Court in Kuthalingam v. Jahir Hussain, 1997 (2) LW 470.
13. As said above, while the Rent Controller had given a finding applying the proviso to Section 10(3) of the Act, the Appellate Authority had failed to do so, on which basis, the eviction order is also challenged, which is answered by the learned Counsel for the landlord by relying upon a decision in Sivaraj v. Esakkimuthu, , wherein this Court had held 'failure of the Appellate Authority to render a specific finding about the relative hardship, while affirming the order of eviction passed by Rent Controller, cannot be a ground to interfere with a finding', which is well acceptable. Even assuming that the Appellate Authority has failed to record a finding, nothing prevents this Court from going into the matter to find out the relative hardship, as envisaged under the proviso, which I will discuss infra.
14. Admittedly, the landlord has not been examined in this case, whereas his Manager has been examined as P.W.1. For the non-examination of the landlord, it was urged, an adverse inference has to be drawn, which is not available under the law to the other side. The Evidence Act says how a thing should be proved, depending upon the burden of proof. In a case, even without examining the party, the facts relied on therein could be proved, unless law compels that the party alone should enter into the box. In the case on hand, the claim is additional accommodation, which can be spoken about by the person, who was managing the affairs of he landlord and it is not necessary that the owner alone should come and speak. In fact, the landlord, being a big business man, even may not aware of the requirements of the business in the ground reality, though he may be controlling the business. Therefore, when the case is one for requirement of the space, for storing bags, that could be well spoken to by the person who is managing the business, drawing bags from various points and sending the bags to various points, which is actually followed in this case. Therefore, the non-examination of the landlord will not give any advantage to the tenants, to set aside the order of eviction, which is also supported by the decision of this Court in MM, lliyas and Anr. v. M.R. Pakklrisamy, , and by the decision of the Apex Court in Smt. Ramkubai, since deceased by LRs and Ors. v. Hajarimal Dhokalchand Chandak and Ors., . On this ground also, assailing the concurrent findings of the Courts below based upon materials, is not possible.
15. The last and the important point urged on behalf of the revision petitioners was that the hardship, which may be caused to the tenants, by granting eviction, will outweigh the advantage to the landlord. The revision petitioners are doing some petty business, such as having mixture shop and other shops, which can be carried out in any place. For a specific place, there cannot be any defined customers. Therefore, it cannot be said, if the business is ordered to be shifted or the tenants are evicted, that will outweigh the advantage to the landlord. Except the oral assertion that they will be deprived of their customers or it may not be possible for them to collect the outstanding amounts, no other material has been placed before the Court by the tenants to conclude that the advantage which the landlord will gain, will outweigh the disadvantage that would occur to the tenants, by the order of eviction.
16. Regarding the bona fide also, I am unable to doubt about the bona fide of the landlord. It is the case of the landlord that because of insufficient space available in the mill premises, he was compelled to store the bags in the warehouse, belonging to the Government, by paying rent, which is also evidenced by the payment of rents, as seen by the documents recorded by the Courts, concurrently. But, the learned Counsel for the revision petitioners would contend that mere production of accounts will not be sufficient to prove the same and in the absence of the examination of the person concerned, relying on those entries, it is not possible to hold that the landlord was paying the rents to the warehouse, where it is said, he is storing his coriander bags. True, when a person wants to charge the other person with any liability, mere production of accounts will not be sufficient, as held by this Court in Deluxe Roadlines, represented by its Partner, Kushalchand B. Shah v. P.K. Palani Chetty, 1992 (2) MLJ 481, which principle cannot be extended to the present case. By the production of the account books, which was spoken to by P.W.1 also, the tenants are not charged with any liability. Only to prove that the landlord was paying rents for the godown, where they have stored coriander bags, accounts were produced and not to fix any liability upon the tenants. In this view, accepting the oral evidence of P.W. 1 and the documents, which had indicated the payment of rents, for storing bags by the landlord, it should be held that because of insufficient space available in the mill premises, the landlord was compelled to take the other premises for lease and that is why, bona fidely, he requires the premises under the occupation of the tenants to use the same as godown, by removing the walls between the shops, as disclosed by the sketch, in which I am unable to find any mala fide, such as since the tenants failed to pay the enhanced rent, landlord is using Section 10(3)(c) of the Act as the weapon to evict the tenants. The Rent Controller, has elaborately considered the advantage and disadvantage of tenants and landlord and came to the conclusion, under the proviso, landlord's claim cannot be rejected, which is acceptable to me, though no finding was given by the Appellate Authority. Thus, analysing from all possible and probable angles, I am unable to find any infirmity or irregularity in the orders of the Courts below, warranting my interference, exercising the revisional jurisdiction under Section 25 of the Act. In this view, all the revision petitions deserve only dismissal and not acceptance.
In the result, all the civil revision petitions are dismissed.
The orders of eviction, all dated 4.4.2001, passed by the Rent Controller (District Munsif), Viridhunagar respectively in R.C.O.P. Nos. 45 of 1999, 42 of 1999 and 38 of 1999 and confirmed by the Rent Control Appellate Authority (Subordinate Judge), Virudhunagar by the judgments, all dated 6.1.2003, respectively in R.C.A. Nos. 6 of 2002, 8 of 2001 and 10 of 2001 are confirmed.
Time for eviction is three months. No costs.