Madras High Court
Kathan vs Scaw Manak Chand Shohaji on 6 November, 2003
Equivalent citations: 2004(1)CTC668, (2004)1MLJ69
Author: Prabha Sridevan
Bench: Prabha Sridevan
ORDER Parabha Srideva, J.
1. The landlord is the revision petitioner. R.C.O.P.No. 172 of 1993 was filed by petitioner herein on the ground of wilful default, change of user and for his own occupation. R.C.O.P.No.252 of 1996 was filed by the respondent for deposit of rent. The Rent Controller rejected the ground of wilful default as also change of user, but ordered eviction on the ground of own occupation. R.C.O.P.No. 252 of 1996 was also dismissed. Against the orders, three appeals were filed, R.C.A.Nos. 99, 100 of 1997 and 38 of 1998. The tenant filed R.C.A.Nos. 99 and 100 of 1997 against the order of eviction passed on the grounds of owner's occupation and the refusal to permit deposit of rent. The landlord has filed R.C.A.No. 38 of 1998 against the rejection of the grounds of change of user and wilful default. The Appellate Authority dismissed the landlord's appeal and also the tenant's appeal under Section 8(5) of the Act. R.C.A.No.99 of 1997 was allowed thereby dismissing the order of eviction. The present revision petitions C.R.P.Nos. 3009 to 3011 of 1999 are filed against all these orders. The only petition that was argued was C.R.P.No. 3010 of 1999 against R.C.A.No. 99 of 1997. No arguments were advanced against the concurrent finding regarding change of user and wilful default.
2. The landlord's case is that he is married and since he is staying with his father he would like to live separately and requires the place for his own use. The tenant resisted this on the ground that the petitioner has many houses in Madurai and that even now the petitioner is staying in his own house and therefore, there is lack of bona fides in the petition.
3. The Trial Court came to the conclusion that the petitioner was staying with his father and after marriage justifiably wants to have a separate residence. The Rent Controller found that the requirement is bona fide and that the tenant cannot dictate the landlord that he could occupy some other property.
4. It is the petitioner's case that in a family partition, the petition property was allotted to him. The Appellate Authority concluded that the requirement was not bona fide because (a) the partition deed which is the best evidence to show that the petitioner does not own any other residential premises was not filed, (b) no document was filed to show that the house in which the petitioner is now residing is his father's house, (c) the petitioner had not chosen to adduce any evidence to prove that the space which he is now occupying is not sufficient for him and (d) the same building, 1500 sq.ft. in the first floor is vacant and could be used by the petitioner and therefore, the petitioner's case was not bonafide.
5. The learned counsel for the petitioner would submit that there is absolutely no justification for the Appellate Authority to disbelieve his case. The pleadings and evidence would support the case of the petitioner and he also relied on Akhileshwar Kumar v. Mustaqim, , S.V. Janardanam v. D. Kivraj Sowkar, 2002 (2) CTC 415 : 2002 (2) L.W. 611, and V.D. Murugesan v. V. Raj Mohammed, 1995 (1) MLJ 84.
6. The learned counsel for the respondent on the other hand would submit that the fact that the partition deed was not produced would show that there is lack of bona fides and absolutely there is no proof that the petitioner needs the property for his own use. The finding of the Appellate Authority cannot be interfered with in revision and there cannot be any reappraisal of evidence.
7. In his original petition the petitioner has stated that, "he is now living with his father and since he is married he wants to live separately".
In the counter it is stated that the petitioner is staying in his own building and that the suit premises was let out by the petitioner's father and the rent is also paid only to the petitioner's father. In the evidence the petitioner had stated that, In cross-examination he has stated, In continuation of cross-examination, he has again said,
8. In R.W.1's evidence it is stated that the petition property is only a portion of property in East Avani Moola Street and the first floor of the street is in the occupation of the petitioner and that it is very spacious and all facilities are available.
9. In S.V. Janardanam v. D. Kivraj Sowkar, 2002 (2) CTC 415 : 2002 (2) L.W. 611, it ,was held that when applications are filed under Section 10(3)(a)(i) and 10(3)(a)(iii) and the requirements of the provisions are satisfied, the tenant cannot be heard to say that the property is suitable or not suitable to the petitioner's requirement.
10. In Akhileshwar Kumar v. Mustaqim, , the Supreme Court held that when the landlord proves his bona fides to the objective satisfaction of the Court of facts, the choice of accommodation which would satisfy his requirement should be left to landlord's subjective choice and the Court cannot impose its own choice however,' the landlord's choice must be reasonable and whimsical.
11. It is clear from the evidence that the petition premises is one portion of the property in door No. 63, East Avani Moola Street, the admission of P.W.1 is that including the petition premises there are four shops on the ground floor. From this it is seen that the respondent is occupying only a portion of the property. P.W.1 has also admitted that the first floor is vacant for a period of ten to fifteen years.
12. The question of bona fide assumes great importance when considering petitions for eviction on the ground of own use. It is no doubt true that a landlord may want to get back possession of his own property for his use. But it is repeatedly held that mere desire is not equivalent to requirement. Requirement implies a greater urgency and need for the premises whereas a desire or a wish is not the same. It is also necessary for the landlord to prove that he has no other premises in his occupation in the same city or town or village as the case may be. The tenant cannot point out to any other building as an alternative for the landlord's occupation. It is for this reason that it was urged that the failure to produce the partition deed leads to the inference that other properties were also allotted to the petitioner. But that apart, from the materials to the petitioner property is entirely the petitioner's. The first floor has been vacant and the petitioner does not say why he cannot occupy the first floor. The ground floor consists of four shops and it is not the petitioner's case that he is going to occupy the other three. He only wants the petition premises which is a small portion of the ground floor and therefore, much less than 1000 sq.ft. Admittedly the petitioner belongs to a very affluent family and the building in which he lives is a bungalow.
13. The landlord's choice does not appear to be reasonable. The evidence of R.W.1 that the area of 1500 sq.ft. in the first floor of 63, East Avani Moola Street is vacant, has not been rebutted in cross-examination. P.W.1's evidence is that there are water facilities and other amenities in the first floor. It is also his evidence that the property in Chokkikulam is the petitioner's property and that it is a bungalow. This has also not been challenged in cross-examination. In the counter at paragraph No. 9, it is pleaded that the landlord is residing in his own house. So the petitioner must prove that the property where he is residing is not his property. It has pointed out by the learned counsel for the petitioner that the Appellate Court after having accepted that the petitioner is living with his father erred in concluding that there is nothing to show that the area was not sufficient for the petitioner. It was submitted that the very fact that the petitioner got married and wanted to live alone is enough to justify a bonafide requirement for own use and occupation. But the finding of the Appellate Authority as regards issue No. 3 is that the petitioner ought to have proved that the petitioner has no other building in his occupation to obtain an order for eviction under Section 10(3)(a)(i). The best evidence was not produced according to the Appellate Authority. It was also submitted that even in the petition it was not pleaded that he is not in occupation of another building.
14. The Appellate Authority has correctly found that apart from his own evidence that he is living with his father in Chokkikulam and that Chokkikulam's house is his father's house there is no effort on the part of the petitioner to prove this fact. The petitioner has neither proved that the Chokkikulam property is not his nor has the evidence of R.W.1 that the Chokkikulam bungalow is the petitioner's been denied.
15. Paragraph No. 7 of the petition runs as follows:
"The petitioner requires the under-mentioned building for his own occupation. The petitioner's need, for his own use of the said building is a genuine, reasonable and a bonafide one. Hence the respondent is liable to be evicted from the said building according to law. He is now living with his father and since he is married he wants to live separately".
There is absolutely no pleading that he is not in occupation of a residential building of his own. Therefore, even the basic requirement of Section 10(3)(a)(i) has not been satisfied and the petitioner has not proved his bona fides.
16. In this factual background it is very difficult to read anything more into the materials on record to come to the conclusion that there is bonafide requirement. The order of the Appellate Authority is confirmed, not because this Court is imposing its Will on the choice of accommodation but because the landlord has not proved his bona fides to the objective satisfaction of the Court of facts and the conclusion of the Court of facts does not appear to be perverse or unjustified on the available materials.
17. The Civil Revision Petitions are thus, dismissed. However, there will be no order as to costs.