Madras High Court
Venkadachalam vs Michel on 16 December, 2008
Equivalent citations: AIR 2009 (NOC) 1859 (MAD)
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :16/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)(MD).No.338 of 2004 and C.M.P.(MD).No.1965 of 2004 Venkadachalam ... Petitioner Vs. Michel ... Respondent Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act to set aside the fair and decretal order of the appellate authority (Principal Sub Judge, Tirunelveli) dated 11.06.2004 in R.C.A.No.31 of 2003 confirming the fair and decretal order of the Rent Controller (District Munsif), Valliyoor dated 01.04.2003 in R.C.O.P.No.1 of 2001. !For Petitioner ... Mr.A.Arumugam ^For Respondent ... Mr.S.Sivathilagar ***** :ORDER
1.0. The petitioner is tenant who is the respondent in R.C.O.P.NO.1 of 2001 on the file of the Rent Controller, Valliyoor. In the petition filed by the landlord, the following are stated:-
1.1. By means of a sale deed dated 14.03.1963, the property belonged to the father of this petitioner. It was leased out to the father of the respondent for a monthly rent of Rs.50/-. The present rent is Rs.1,000/- and the same has to be paid on or before the 10th of every next English calendar month. The respondent used to get signature for the payment of rent then and there in a pass book retained by him. After the death of his father, the respondent has been continuing as tenant in the property. This petitioner after his father's demise has been collecting the rent from the respondent on behalf of the the other co-sharers also.
1.2. In view of the Tamil Nadu Lease and Rent Control Act (in short "the Act") since the petitioner has been collecting rent, he must be deemed to be the landlord. The petition scheduled property is a old one and the petitioner intends to demolish the same and reconstruct a new building in its place to augment his income. His requirement for demolition and reconstruction is a bona fide one. The petitioner has got sufficient means for new construction. Hence, the respondent has to be evicted. On 20.06.2001 and also on 24.06.2001, this petitioner demanded the respondent to evict the building. Hence, the petition has to be allowed.
In the counter filed by the respondent / tenant, it is alleged as follows:-
3.1. The petitioner father died leaving behind his wife, two sons and a daughter and hence the petition without impleading the legal heirs of the deceased Innasi Muthu Nadar is bad for non-joinder of necessary parties. The respondent already paid Rs.10,000/- as deposit to the petitioner's father. The petitioner cannot claim that he is the absolute owner of the petition schedule property. Even though the building is an old one, it is not in a dilabitated condition. The petitioner alone cannot construct any building without the consent of the other legal heirs of his father. Moreover, the petitioner is not having sufficient means for construction. He had never shown his means to construct a new building. The petitioner never demanded the respondent to vacate the petition schedule property, but he was demanding enhanced rent for every year, for which the respondent was not agreeable. Hence, this petition has been filed with false averments. The petitioner alone cannot file the application. Hence, the petition has to be dismissed.
4. The learned Rent Controller passed an order of eviction finding the requirement of this respondent is bona fide one and granted one month time for vacating the building. This petitioner carried the matter in appeal before the Rent Control Appellate Authority (Principal Sub-Judge, Tirunelveli) in R.C.A.No.31 of 2003. But the same also went against this petitioner rendering his appeal being dismissed.
5. It is not debatable that the petition mentioned property was taken on lease by the father of the petitioner from the father of the respondent and the present rent is Rs.1,000/- per mensem. The respondent requires the building for demolition and reconstruction on the ground that it is an old one and it has to be demolished. To show the condition of the building, he took out a commission from the Rent Controller. The Advocate Commissioner inspected the demised premises and filed a report with a plan by observing that some cracks are found on the inner walls of the building. The upper roof portion made up of tiles is found completely damaged and instead of tiled roof, presently coconut leaves have been laid, that a big crack was found on the southern wall and the upper portion of the wall was found in a damaged condition. It is understood from the Advocate Commissioner's report that material portions of the building are not in good condition.
6. Even though the facts remain as such, the learned counsel for the petitioner Mr.A.Arumugam would submit that the petitioner, having run jewellery shop in the demised premises, has to be more cautious, careful and concerned with the property than the owner of the building. It is not a ground to assail the requirement of the landlord. The argument of the learned counsel for the petitioner is two folded. One is, the petition filed without the other co-
owners on the array of the petitioners, is not sustainable and another is, the building does not require any demolition and reconstruction, since presently it is in good condition.
7. As far as the first ground of attack is concerned, the learned counsel would vehemently contend that there is neither express nor implied consent obtained from the other co-owners of the property and the petition filed without such consent of other co-owners is not at all maintainable which has to face dismissal. It is his further contention that even the respondent has not taken steps to cross-examine the other co-owners as witnesses before the Rent Controller to show that they have no objection for the actions taken by this respondent.
8. In support of his contention, he placed reliance upon a decision of the Division Bench of this Court reported in AIR 1995 Madras 283, Rukmani and others Vs. H.N.Thirumalai Chettiar, in which the learned Judges have observed that if the respondent has acquired title to the property only partly, he cannot be taken to be the full owner and he cannot exercise rights of exclusive ownership to the detriment of other co-sharers and that unless he has his share demarcated in a suit for partition or by any other arrangement he cannot put up constructions either on the entirety or on a portion of the property, that on the finding given by the learned single Judge that the respondent has purchased 2/3rd share in the suit property, and it is not possible to sustain the order permitting the petitioner to put up constructions on the suit property at his risk and that the respondent, being a co-sharer cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pending of a suit for partition filed by the co-sharers.
9. The above said decision stands on a different footing for the reason that the rights of the parties were to be decided in a partition suit and the consideration in rent control proceedings may be otherwise. The conduct of both parties to this proceedings as well as the oral evidence on record have to be weighed before reaching a conclusion, which are being taken up in the later part of this judgment.
10. The learned counsel for the petitioner also stresses that Section 14(1)(b) is not attracted, while the landlord does not come within the purview of the Section 2(6) of the Act. As per Sub-Section 6 to Section 2 of the Act, the "landlord" includes the persons who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.
11. Section 14 is a non- obstante clause. It starts as follows:-
"14. Recovery of possession by landlord for repairs or for reconstruction:- (1) Notwithstanding anything contained in this Act, but subject to the provisions of Sections 12 and 13, on an application made by a landlord, the Controller, shall, if he is satisfied."
12. The arguments of the learned counsel cannot be accepted because Section 14 does not preclude a landlord who is in the capacity of the landlord as per the definition of Section 2(6) of the Act from taking an application for eviction against the tenant.
13. Repelling the arguments on the side of the petitioner, the learned counsel for the respondent Mr.S.Siva Thilagar would submit that the petitioner has been constantly and cautiously admitting that the respondent has been receiving rent from him and the contention before this Court is otherwise which would not stand for a minute's scrutiny and that it is well settled that a co- owner can maintain the petition for eviction on behalf of other co-owners and the consent could be, expressed or implied.
14. In support of his contention, he relies upon a Full Bench decision of the Apex Court reported in AIR 1977 Supreme Court 1599, Smt.Kanta Goel Vs. P.Pathak and others, wherein Their Lordships are of the opinion that the other co-sharers, if by consent implicit or otherwise authorises one among them to take action, the petition for eviction could be maintained. The operative portion of the decision goes thus:-
"6... Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the first respondent. Therefore, the latter fell within the definition of 'landlord' for the purposes of the Act. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Shri Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The first respondent together with the other respondents, constituted the body of landlords and, by consent implicit or otherwise of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned for all practical purposes as the landlord and was therefore entitled to institute proceedings qua landlord.
7.This Court, in Sri Ram Pasrich, (1976-4 SCC 184) : (AIR 1976 SC 2335) clarified that a co-owner is as much an owner of the entire property as any sole owner of the entire property as any sole owner of the property is :
"Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property.... It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of S.13(1)(f)."
15. This Court in a decision reported in 1997 (1) Law Weekly 727, R.Perianna Asari and another V. Jayakumar, has expressed its view that a co- owner can maintain a petition for eviction provided he acts on behalf of the other co-owner, and there is no objection from the other co-owners also, that it is certainly necessary for the tenant to question the right of the co-owner and raise a point before the Court of the first instance, so that the landlord may satisfy the Court that he is acting either on behalf of all the co-owners or that he has got consent of all of them or that there has been no dispute between any of the co-owners and that in this case the tenant having not raised the point before the lower Courts, he cannot now at this stage contend that one co-owner cannot maintain this petition.
16. In yet another decision of this Court reported in 1998 (1) CTC 595, S.Namagiri Lakshmi vs. Pravin Harilal Mehta and 4 others, this Court, after referring to a catalogue of earlier decisions of this Court, held as follows:
"4.This plea was not at all raised neither in the counter nor before the authorities below. Moreover as a co-owner, the landlady is as much as a owner of the entire properties as any sole owner of the properties in question. The legislature has not provided any restriction on the co-owner to file an application under Section 14(1)(b) of the Act. The only restriction that has been imposed under the Act is under Section 10(8) of the Act, and that too only against the agent of the landlord/landlady. In the absence of any such restriction, it will be foreign to hold that the co-owner cannot maintain the petition for demolition and reconstruction, especially when no evidence is available before the authorities below to show that the other sharers are not willing to demolish and reconstruct the premises in question. Support is also gained for this view in Shanmugha Appa Vs. Abdul Hameed, 1973 (1) MLJ 241, wherein P.S.Kalisam,J., as he then was, has held that petition for eviction by one co-owner even for demolition and reconstruction is maintainable. Hence the contention raised on behalf of the tenants by the learned Senior Counsel cannot be countenanced."
17. This Court in a decision reported in 1999 (II) MLJ 68, K.Nanjappan Vs. V.K.Janaki, after going through the following decisions of the Supreme Court on this subject has held thus:-
"In the light of the decisions of the Supreme Court in Sri Ram Pasricha V. Jagannath, AIR 1976 S.C.2335 and Kanta Goel V. Pathank, AIR 1977 S.C. 1599, which clearly laid down that the presence of the other co-owners is unnecessary, the objection in that regard raised by the learned counsel for the petitioner / tenant in this case cannot be countenanced at all. In other words, even assuming that the respondent / landlady herein is a co-owner of the petition mentioned building, she can maintain the application for eviction as against the petitioner / tenant and so the application filed by the respondent / landlady herein is maintainable under law."
18. From the above said decisions, the law on this point has been made clear that a co-owner can maintain a petition for eviction on behalf of the other co-owners provided their consent should have been obtained either expressly or impliedly or otherwise.
19. As far as the facts of the present case are concerned, the consent of the other co-owners in favour of the respondent to initiate the eviction proceedings, transpires from the pleadings and oral evidence. Even though it has been specifically pleaded in the petition that the petitioner alone used to collect rent from the respondent, it has not been specifically denied in the counter. Further, the oral evidence as to the collection of rent from the petitioner by the respondent on behalf of other heirs also, was not specifically denied in the cross-examination. The petitioner in his chief examination deposed that the respondent and his brother Stephen were receiving the rent and in the cross-examination, he reiterates the same aspect besides saying that it is incorrect to state that the respondent alone was receiving the rent. It is to be noted that suggestion put on behalf of the tenant in the cross-examination is not supported by pleadings in the counter. In his chief and cross- examination, this petitioner has stated that both this respondent and his brother Stephen used to collect rent. If the pleadings covers the fact that both the respondent and his brother used to collect the rent from him, then his versions in oral evidence could be termed to be an evidence constituting a valid defence. It is well settled that any amount of oral evidence adduced by a party not covered by the pleadings, is not at all admissible in evidence to support the claim of the said party. Hence, a harmonious reading of the oral testimonies of both sides as well as their pleadings paves way to reach a conclusion that the respondent was collecting rent from the petitioner for himself and on behalf of the other co-sharers also.
20. The learned counsel for the petitioner would garner support from the decision of this Court reported in K.Shanmugha Appah's case (cited supra) in which the learned Judge of this Court has held as follows:-' "... In the case of persons who are receiving rent on behalf of themselves or on behalf of any others or on behalf of themselves and others and who are mentioned in the definition of 'landlord' the Court is not required to insist on the previous written consent of the landlord. It will be open to the Court to satisfy itself that the person making the application is making it on behalf of others receiving rent from other materials placed before it. In this view, so far as the present petition is concerned, as the landlord does not fall within the category covered by Section 10(8), previous written consent of persons is not mandatory."
21. The above said proposition enunciated by this Court supports the contention of the respondent. As per this decision, when one of the co-sharers used to collect rent on behalf of the other co-sharers and in case, if he filed the petition for eviction, obtaining permission anterior to filing the application is not a sine qua non. I am in quite agreement with the above said proposition.
22. While one of the co-sharers used to collect the rent from a tenant continuously and there had been no objection or demur from the other co-sharers, it must be observed that he has been collecting rent for himself and on behalf of the other co-sharers. The other co-sharers have been consciously understanding and believing that the said co-sharer was collecting rent on their behalf also. In case, if the said co-sharer initiate an action for eviction, unless it is shown that the said filing of the eviction application prejudices the rights of other co-sharers, it ought to be held that they have impliedly offered their consent to file the petition for eviction and such consent could be discerned from probing the materials available before the Court and the Court should satisfy itself, whether such consent was available on filing of the application.
23. Added to this, when there is no specific denial by the tenant in his counter and if he adduces evidence in support of his claim, which was not pleaded, then the corollary thereof is, his versions before the Court could not be countenanced. The above discussion, in the backdrop of the pleadings and oral evidence and in the light of the weighty judicial pronouncements, would lead to an irresistible conclusion that the respondent filed the petition for eviction on behalf of the co-sharers and it must be legally presumed that they tendered their consent for the same. On this score, the ground made out by the respondent holds good.
24. The next leaf of contention of the learned counsel for the petitioner is as the building need not be demolished for the reason as it is in good condition. A very perusal of Commissioner's report would reveal the facts that the walls and roof are in damaged condition. It is conceded that the buildings is an old one.
25. In this regard, the learned counsel for the respondent would garner support from a decision of the Supreme Court reported in 2004 (3) Law Weekly 754, P.S.Pareed Kaka & Ors Vs. Shafee Ahmed Saheb wherein Their Lordships have held that the law is settled on this subject. Even if the building is in a good condition, if it is not suitable for the requirement of the landlord, he can always demolish a good building and put up a new building to suit his requirements and that it is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition, particularly, when the premises is required by the landlord.
26. Following the dictum laid down in the decision of the Supreme Court, it must be held that the requirement by the landlord for demolition and reconstruction is bona fide. In this regard, the contention otherwise of the petitioner has no legs to stand.
27. In view of the findings rendered above, this Court is of the considered opinion that the petition for eviction is maintainable and it is bona fide required by the respondent for demolition and reconstruction and hence, the concurrent findings of the fora below deserve to be confirmed. They are accordingly confirmed. The civil revision petition does not merit consideration which suffers dismissal.
28. In fine, the civil revision petition is dismissed with costs. Consequently, connected M.P. is closed. No costs. Time for handing over the vacant possession of the demised premises to the respondent two months.
ssm