Madras High Court
Mookkan vs A. Abdul Rasheeth (Decased) And Ors. on 2 September, 1998
Equivalent citations: (1999)1MLJ233
ORDER
1. The tenant is the revision petitioner herein. The respondent/landlord filed R.C.O.P. No. 88 of 1985 on the file of the learned Rent Controller (Principal District Munsif) Madurai, under Sections 10(2)(1) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter referred to as the Act, on the ground that:
(i) the revision petitioner has committed wilful default in payment of rent for 27 months from November, 1984 to February, 1985, and
(ii) the petition premises is bona fide required by the respondent/landlord for additional accommodation for residential purpose.
2. The respondent/landlord did not press the alleged ground of wilful default before the learned Rent Controller, and therefore, the grievance of the respondent/landlord as to the additional accommodation alone was considered by the authorities below.
3. According to the respondent/landlord, his family consists of himself, his wife, four children, and as the children are growing, the revision petitioner bona fide requires the petition premises for additional accommodation, which is located adjacent to the residential premises of the respondent/landlord.
4. The above R.C.O.P. was resisted by the revision petitioner/tenant on the ground that the respondent/landlord was not in bonafide requirement of the petition premises for his additional accommodation as he his sufficient place in the existing residential premises.
5. The respondent/landlord examined himself as P.W.1 and the respondent examined himself as R.W.1
6. The Rent Controller, in the light of the evidence of P.W.1 and R.W.1 held that the petition premises is bona fide required by the respondent/ landlord for his additional accommodation, taking into consideration the fact that the revision petitioner's family consists of himself, his wife and four children, whose marriage has also been arranged, and thus, by Order dated 29.8.1992 ordered eviction, which was, on appeal confirmed by order dated 29.2.1996 in RCA. No. 118 of 1992, on the file of the learned Appellate Authority (Principal Sub Judge), Madurai, Hence, the above revision;
7. It is relevant to mention that, in the appeal, the revision petitioner/tenant also prayed to take notice of the subsequent events that one shop of the same premises became vacant, which was, in fact, occupied by the respondent/landlord for starting a petty shop.
8. Mr. R. Subramaniam, learned Counsel for the revision petitioner, contends that the authorities below ought to have specifically given a finding as to the relative Hardship which may be caused to the tenant by granting a decree of eviction, and that, in the absence of such a finding, the orders of eviction by the authorities below are liable to be set aside. He also places reliance of the decision in T.S. Sethuraman v. J. Nagalakshmi and Sree Balaji Krishna Hardware Stores v. Srinivasaiah J.T. (1998) 1 S.C. 480, in this regard.
9. Mr. S. Subramaniam, learned Counsel for the revision petitioner/tenant, further, placing reliance on the decision in Sree Balaji Krishna Hardware Stores v. Srinivasaiah J.T (1998) 1 S.C. 480, contends that the act of the respondent landlord in not occupying the shop which subsequently became vacant would prove that he is not bona fide in seeking the petition premises for additional accommodation for residential purpose.
10. Per contra, Mr. R. Swaminathan, learned Counsel for the respondent/landlord contends that the relative hardship sought to be decided by the authorities below while disposing the application under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, cannot be decided on delicate scale giving benefit of the slight tilt in favour of the tenant as observed in Hotel De Broadway, etc. v. Snow White Industrial Corporation, etc. (1997) 1 L.W. 421.
11. Mr. R. Swaminathan, learned Counsel for the respondents, contends that the reliance placed on the decision in Sree Balaji Krishna hardware Stores v. Srinivasaiah J.T. (1998) 1 S.C. 480 is erroneous, as, in the said decision the landlord required the petition premises for non-residential purpose but it was held that the requirement was not bona fide as he did not occupy his shop, which subsequently became vacant in the same building.
12. The learned Counsel for the respondents further contends that the more fact the there was no finding as to the relative hardship which may be caused to the tenant by granted a decree of eviction for the advantage of the landlord, cannot be a ground to interfere in the order of eviction. When there are satisfactory materials on record to show that there is no considerable hardship to the tenant in the light of the advantage accruing to the landlord in seeking the petition premises for additional accommodation.
13. In this regard, I am obliged to refer to Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which reads as follows:
Eviction of tenants: "A landlord who is occupying only a part of a building, whether residential or non-residential may, notwithstanding anything contained in Clause (a), apply to the controller 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 the residential purposes or for purposes, of a business which he is carrying on, as the case may be.
14. No doubt, the Apex Court, in Sree Balaji Krishna Hardware Stores v. Srinivasaiah J.T. (1998) 1 S.C. 480, While interpreting Section 10(3)(c) of the Act and testing the bonafide requirement of the petition premises in a case that arose under Sections 10(3)(a)(iii) and 10(3)(a) of the Act, has held as follows:
In the absence of any explanation as to why this shop behind the appellant's shop was not found Suitable, we are constrained to hold that the conclusion of courts below that it was not suitable for the landlord's son business was not tenable. learned Counsel for the respondent-landlord said that the shop was not abutting the road but was behind the front shop occupied by the appellant and could be reached through the passage between the two shops on the front side. We are unable to see why the said shop could be said to be unsuitable for business in glass and plywood. In our view, the courts below ought, on these facts to have come to the conclusion that the action of the landlord in not using the said shop behind the appellant's shop which so fell vacant, for his son's business and in allowing his daughters in-law and other sons and to use the same, was not bona fide.
15. But, in the instant, case, admittedly, the respondent/landlord required the petition premises for additional accommodation for his residential purpose whereas, he had occupied the other shop, which became vacant subsequent to the filing of the present eviction petition by the respondent, for running a petty shop. In view of the well settled proposition, it is for the landlord to choose the portion for his additional accommodation, but not for the tenant to dictate or direct the landlord to take such and such portion for additional accommodation.
16. The bona fide requirement of the petition premises for the residential purpose of the respondent/landlord cannot be rejected outright merely because he had occupied the other shop for running a petty shop, which became vacant subsequent to the filing of the present eviction petition under Section 10(3)(c) of the Act. Therefore, I am of considered opinion that the decision in Sree Balaji Krishna, Hardware Stores v. Srinivasaiah J.T. (1998) 1 S.C. 480 is not applicable to the facts and circumstances of the instant case.
17. That apart, I am unable to agree with the contention of the learned Counsel for the revision petitioner that there should be a finding by the authorities as to the relative hardship which may be cause to the tenant by granting a decree of eviction, and that in the absence of such a finding, the orders of eviction of the authorities below are liable to be set aside, inasmuch as this Court is entitled to go through the material evidence available on record, and satisfy itself whether the respondent/landlord is in bona fide requirement of the petition premises for his additional accommodation, of counsel taking note of the fact that it is not the object of the provision of Section 10(3)(c) of the Act to weigh the hardship of the tenant as against the test of the landlord on delicate scale, giving the benefit of the slight tilt in favour of the tenant as observed by this Court in Hotel De Broadway, etc. v. Snow White Industrial Corporation, etc. (1997)1 L. W. 421. It cannot be disputed that in the light of the materials available on record, this Court can test the hardship of the tenant in the light of the advantage accruing to the landlord while passing the order of eviction. In the instant case, I find that the revision petitioner has clearly pleaded that he requires the petition premises for his additional accommodation, as he has got six members in his family consisting of himself, his wife, and four children who are growing, and also their marriages are being arranged, and these facts have not been disputed by the revision petitioner/tenant, and therefore, I am satisfied that the orders of eviction of the court satisfy the test of relative hardship as contemplated under the proviso to Section 10(3)(c) of the Act. Hence, I am obliged to confirm the order of eviction and the revision is, therefore, dismissed.
18. The revision petitioner is given six months time to vacate and hand over vacant possession of the petition premises, in the event, he filed an affidavit of undertaking within two weeks from the date of receipt of its order to the said effect. In the result, the above revision is dismissed. No costs.