Madras High Court
D.Solomon Raja vs Rajkumar Gnanamuthu on 10 October, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.10.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.2094 of 2013 (NPD) & M.P.(MD) Nos.1 of 2013 & 1 of 2014 D.Solomon Raja .. Petitioner Vs. Rajkumar Gnanamuthu .. Respondent Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, to set aside the Judgment and Decree, dated 20.09.2013, passed in R.C.A.No.6 of 2013 by the learned Rent Control Appellate Authority (Principal Sub-Court), Tirunelveli, by confirming the Judgment and Decree, dated 06.12.2012, passed in R.C.O.P.No.20 of 2011 by the First Additional Rent Controller (I Additional District Munsif Court), Tirunelveli. !For Petitioner : Mr.S.Meenakshi Sundaram ^For Respondent : Mr.G.Prabhu Rajadurai Date of reserving the Judgment : 19.08.2014 Date of pronouncing the Judgment: 10.10.2014 :ORDER
This Civil Revision Petition has been filed to set aside the Judgment and Decree, dated 20.09.2013, passed in R.C.A.No.6 of 2013 by the learned Rent Control Appellate Authority (Principal Sub-Court), Tirunelveli, by confirming the Judgment and Decree, dated 06.12.2012, passed in R.C.O.P.No.20 of 2011 by the First Additional Rent Controller (I Additional District Munsif Court), Tirunelveli.
2.The petitioner is the tenant, whereas the respondent is the landlord. The respondent/landlord filed R.C.O.P.No.20 of 2011 on the file of I Additional Rent Controller (I Additional District Munsif Court), Tirunelveli, for eviction under Section 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control), Act 1960 [hereinafter referred to as "the Act"] on the ground of additional accommodation and sub-letting contrary to the rental agreement.
3.The learned Rent Controller allowed the R.C.O.P., ordering eviction of the petitioner. Against the order of eviction, the petitioner has filed R.C.A.No.6 of 2013 on the file of learned Rent Control Appellate Authority (Principal Sub-Court), Tirunelveli. The learned Rent Control Appellate Authority, dismissed the R.C.A. on 20.09.2013, confirming the order of the learned Rent Controller. As against the orders of the Courts below, the petitioner has filed the present civil revision petition.
4.For the sake of convenience, the parties herein are referred to as they are arrayed in the Rent Control Original Petition in R.C.O.P.No.20 of 2011.
5.The case of the petitioner/landlord:
(i) The petitioner and his wife both are Doctors. The petitioner is running a Dental Clinic in the premises from 1988. The said premises is very old and the petitioner wants to extend his clinic and the present premises is not sufficient to give proper treatment to the patients. The petitioner is in possession of the building except the portion under occupation of the respondent.
(ii) The respondent is a tenant of the petitioner in respect of the shop on a monthly rent of Rs.1,000/-, as per English Calendar. On 15.03.2010, a rental agreement was entered into between the petitioner and the respondent in respect of the petition premises. This agreement is for eleven months from 15.03.2010 to 14.02.2011. The petitioner, by the notice, dated 20.09.2010, called upon the respondent to vacate and hand over possession of the petition premises, as the same is required for his own use.
The respondent received the said notice, but did not sent any reply. On the other hand, he filed O.S.No.570 of 2010 and prayed that the petitioner should not evict him except due process of law. The respondent without permission of the petitioner, sub-letted the premises to a person to run Mutton Shop. One Chinnadurai, who is the father of the respondent, in a drunken stage, abused the patients, who are coming to the Hospital in a filthy language. The respondent is selling banned items and the students and children used to come in large number and they talk in loud voice and create problems to the petitioner. The respondent has put up a shelter extending it from the roof upto the road. Many persons after consuming drugs sleep under the shelter.
(iii) The petitioner requires the premises for his own use for extending Dental Clinic, construct residential quarters for his staff and lay a road to his new house, which he is constructing. The petitioner has sufficient means to put up the construction. The respondent in his counter denied all the contentions of the petitioner. The respondent's father became a tenant 20 years back under the petitioner's mother. Initially, a monthly rent of Rs.30/- was paid for running a cycle shop. As she incurred a loss, the respondent and his father are running a Petty Shop. The respondent/tenant is now paying Rs.1,000/- per month as rent.
(iv) After receipt of the notice, dated 20.09.2010, the respondent met the petitioner on 27.09.2010. The petitioner threatened the respondent to vacate and deliver vacant possession of petition premises, otherwise, he would implicate the respondent in a false case. The petitioner has filed Caveat in the District Munsif Court and Subordinate Court, Tirunelveli. The petitioner was threatening the respondent through his Goondas. In those circumstances, the respondent filed O.S.No.570 of 2010 on the file of First Additional District Munsif Court, praying that the petitioner should not evict him except by due process of law. After filing of the suit only, the petitioner has filed R.C.O.P. for eviction on false grounds.
(v) From the income derived from the petty shop run by the respondent in the petition premises, the respondent is maintaining himself and his family members. He has sold goods on credit basis. If he has to vacate immediately, he will not be in a position to recover the amounts. He and his family members will be thrown to the street.
(vi) On the pleadings, the learned Rent Controller framed necessary points for consideration. The petitioner examined himself as P.W.1 and one Noyel Gnanamuthu was examined as P.W.2 and Exs.A1 to A6 were marked. The respondent examined himself as R.W.1 and Exs.B1 to B9 were marked.
(vii) The learned Rent Controller considering the pleadings, oral and documentary evidence, the Judgments relied on by the parties and the arguments advanced by the learned counsel for the parties, by the order, dated 06.12.2012, allowed the R.C.O.P. ordering eviction of the respondent from the petition premises.
(viii) The respondent filed an appeal in R.C.A.No.6 of 2013 on the file of Rent Control Appellate Authority (Principal Sub-Court), Tirunelveli, against the order of the learned Rent Controller. The appellate authority considered all the materials on record and the arguments of the learned counsel for the petitioner as well as the respondent. By the order, dated 20.09.2013, dismissed the appeal, confirming the order of the learned Rent Controller. Aggrieved by the same, the present civil revision petition is filed.
6.Heard Mr.S.Meenakshi Sundaram, learned counsel appearing for the petitioner and Mr.G.Prabhu Rajadurai, learned counsel appearing for the respondent.
7.The learned counsel for the revision petitioner vehemently argued that the Courts below erred in allowing the R.C.O.P. and dismissed the R.C.A.
8.The learned counsel for the petitioner contended that
(i) the landlord cannot seek eviction both under Section 10(3)(a)(iii) as well as under Section 10(3) (c) of the Act;
(ii) the landlord claimed in the notice, dated 20.09.2010, Ex.A4, that he requires the petition premises for own use, but in the petition, he claimed that he requires the premises as additional accommodation;
(iii) the landlord has given contradictory reasons, in the notice and petition for evicting the tenant;
(iv) the Courts below failed to see that the petition premises and building under occupation of the petitioner/landlord are two different buildings and not in the same roof and the landlord is not entitled to maintain a petition for eviction on the ground of additional accommodation;
(v) the Courts below failed to see that the landlord did not get approval for putting up new construction and the Courts below erred in relying on unapproved plan; and
(vi) the landlord did not plead comparative hardship and only the tenant specifically pleaded and proved hardship that will be caused to the tenant and the tenant was not specifically cross-examined in this aspect.
9.To substantiate his case, the learned counsel for the revision petitioner relied on the following Judgments:
(i) Purushottam Das v. The VIII Additional Distt. and Sessions Judge, Allahabad and others [1977 (1) SCC 451], wherein in paragraph No.2, it has been held as follows:-
"2. .... In view of this proviso, it is now obligatory on the prescribed authority and the Appellate Authority to take into account the comparative hardship of the landlord and the tenant and for that purpose to have regard to such factors as may be prescribed by the Rules in deciding whether or not to pass an order of eviction. Section 26(5) of the Amending Act also declares that, notwithstanding any judgment, decree or order of any court or authority, the provisions of Rule 16 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 shall be deemed to have been made under the provisions of the principal Act as amended by this Act, as if this Act were in force at all material times. The learned District Judge as well as the prescribed authority were therefore bound to take into account the comparative hardship of the landlord and the tenant in the light of the various factors set out in Rule 16 while considering whether or not an order of eviction should be passed. The High Court ought in the circumstances, to have examined the contention of the appellant that the comparative hardship of the landlord and the tenant in the light of the factors set out in Rule 16 was not taken into account by the prescribed authority and the learned District Judge. It was contended on behalf of Respondent 3 that, in fact, the learned District Judge as well as the prescribed authority had considered the question of comparative hardship of the landlord and the tenant and given a finding adverse to the appellant and this finding being a finding of fact, the High Court had refused to interfere with it. But this contention does not appear to be correct if we look at the judgment of the High Court. It is clear that the High Court refused to disturb the finding of the learned District Judge in regard to this question because it felt that in view of the Full Bench decision in C.K. Shah's case it was not necessary to consider the question of comparative hardship. The judgment of the High Court will, therefore, have to be set aside and the case will have to be remanded to the High Court for the purpose of considering the contention of the appellant in regard to comparative hardship in the light of the amended Section 21 read with Rule 16. ....."
(ii)K.M.Ranganathan v. S.Sankaralingam [2003 (1) LW 236], wherein in paragraph No.11, it has been held as follows:-
"11. ..... In fact, in the decision reported in GANGARAM Vs. N.SHANKAR REDDY [1988 (4) SCC 648], the Apex Court has held that the fact that two buildings are separated by a single wall with no intervening space would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them. In the same decision, the Apex Court has formulated a practical test in deciding the above question and has held thus:-
"A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord's possession and enjoyment of the premises in his occupation being affected."
........"
(iii)Mangalambal v. Anjali Devi [1998 (I) CTC 679], wherein in paragraph No.15, it has been held as follows:-
"15.If it is a case of additional accommodation, naturally, there must be a finding as to whether the hardship of the tenant will outweigh the advantage of the landlord. In regard to the same, the Rent Controller has not entered a finding. But the Appellate Authority has entered a finding, but not taking into account the relevant provisions of law. The evidence in that respect has also not been considered. The Appellate Authority has taken into consideration irrelevant factors. It also should not have entered a finding when there was no finding by the Rent Controller. "
(iv)T.S.Sethuraman v. J.Nagalakshmi and another [1997 (III) CTC 339], wherein in paragraph No.10, it has been held as follows:- "10.The relative hardship can be decided only on the basis of the facts which should be available in the pleadings and in the evidence. So, only on the basis of the said pleadings and evidence, the Rent Controller can satisfy that the hardship to be caused to the tenant by granting eviction would outweigh the advantage to the landlord and on that basis the eviction petition has to be selected. So, this crucial aspect could be characterised as a special instance in the matters arising out of Section 10(3)(c) of the Act. There should be a categorical finding by the statutory authorities that the hardship which may be caused to the tenant by granting the decree for eviction would out with the advantage to the landlord. Such a special prescription has been specifically provided for so as to avoid the unnecessary hardship to the tenant. Therefore it has become imperative for the authorities under the case arising to of Section 10(3)(c) of the Act to give a specific finding whether the hardship which the tenant is likely to suffer would outweigh the advantage to the landlord or vice-versa. Unless it is decided by the authorities, the enquiry in regard to the petition arising under Section 10(3)(c) of the Act is vitiated."
10.Per contra, the learned counsel for the landlord/respondent in the civil revision petition argued that the landlord from the beginning was claiming the petition premises for own use as additional accommodation. The landlord can after taking possession of the petition premises can put to use as additional accommodation by constructing the new building and using the same as pathway for his newly constructed building. It is well settled that quoting wrong provision will not be a ground for denying the relief sought for by the landlord. The learned counsel further contended that not pleading relative hardship in a petition for additional accommodation is not fatal to the claim. The tenant had understood the ground on which the eviction has been sought for and has filed counter and has let in evidence on that aspect only. The Courts below have properly appreciated the facts and law and there is no infirmity in the said orders.
11.In support of his submission, the learned counsel for the respondent relied on the following Judgments:
(i)The Nilgiris Co-operative Marketing Society etc. vs. C.T.Uthandi [1998 (2) LW 216], wherein in paragraph No.7, it has been held as follows:-
?7. ..... On the materials referred to above, the learned Judge held that the evidence let in by the tenant establishes the relative hardship in favour of the tenant and thus dismissed the civil revision petition. The learned Judge has nowhere stated that for want of pleading on relative hardship by the landlord in his Rent Control petition, the Rent Control petition is liable to be dismissed. The records of the case on hand dealt with by me in this order discloses the facts identical to what the learned Judge has referred to in the above referred to judgment. It is no doubt true that in the judgment reported in 1993 (1) MLJ 122, the learned judge relying upon the two judgments referred to above (1988) 1 L W. 67 Vol.97-L.W. 116 went on to hold that absence of pleadings in the Rent Control petition on relative hardship would entail in the dismissal of the petition itself. I have already noted that in the judgment reported in (1988) 1 L.W. 67, there is neither pleading nor proof on the relative hardship and therefore the court was left with no other alternative except to dismiss the Rent Control petition. In the second judgment referred to above, the learned Judge held on the facts and circumstances of that case that, though there was no pleading on that aspect in the Rent Control petition, yet there was pleading on the side of the tenant in regard thereto and he had let in evidence and on those materials, held that the relative hardship is in favour of the tenant and so the landlord was not entitled to an order of eviction. Though there was no pleading on the side of the landlord on relative hardship, yet the learned judge did not dismiss the Rent Control petition on that ground. From the judgment reported in 1993-1-MLJ 122, it could be seen that there was no pleading at all on the side of the landlord. At the same time, there were no materials in that judgment to know whether there was any pleading on the side of the tenant or whether there was any evidence or not in regard thereto. Under these circumstances, I am of the respectful opinion that the judgment reported in 1993-1-MLJ 122, may not be of any use to sustain the submission of the learned counsel for the tenant. I have already referred to the judgment of a learned Single Judge of this Court reported in (1996) 2 L.W. 494 (S.S. Subramani, J.). One of the grounds of eviction sought for in that case was under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. There was no pleading on the side of the landlord in the Rent Control petition to bring his case squarely under Section 10(3)(a)(iii) of the above said Act. In that case the learned Judge did not hold that the absence of pleading would necessarily result in the dismissal of the Rent Control petition itself. In the case on hand also, I find that there is no pleading on the side of the landlord regarding the relative hardship, yet the tenant has chosen to plead in detail on that aspect. Oral evidence is available on both sides on the issue of relative hardship and both the courts below have considered it and had come to the conclusion that the relative hardship is in favour of the landlord. Under these circumstances, I am of the opinion that want of pleadings in this case on the part of the landlord regarding the relative hardship does not affect his case and in any event no prejudice to the tenant has been caused. Therefore the argument of the learned Counsel for the revision petitioner that the Rent Control petition has to be dismissed solely on that ground cannot be sustained.?
(ii)Noor Ahmed v. S.Ramasamy [2003 (2) MLJ 604], wherein in paragraph Nos.26 and 27, it has been held as follows:-
?26.As far as the specific pleadings are concerned, as it is a rent control proceedings, which are summary in nature, the opinion expressed by the learned Judge of this court (S.S.Subramani, J.), in G.R. Ragupathy Vs. Dr.K.Sankar (1996-2-LW-494) appears to be more proper and relevant, which states, "The contention of lack of pleadings was not raised before the Authorities below, and I further find that the lack of pleadings, if any, has not prejudiced the case of the tenant, petitioner herein, in any way. The object of pleading is only to put the parties on notice, of the real matter in issue. We must further note that the Rent Control Court is not a Civil Court and the Act itself is more or less a self-contained Code, so far as the relationship of landlord and tenant is concerned." ...... I am of the view that the materials in the petition and the counter are sufficient to arrive at a conclusion, whether there is enough compliance of the proviso to clause (e) of Section 10(3)(c) of the Act. In my opinion, the statement made in the petition and the denial made in the counter are more than sufficient to find out the requirement of the above said proviso and the landlord made out a case that his requirement is bona fide and the said fact is not in dispute and there are enough materials to satisfy the proviso also.
27. ..... As the landlord and the tenant have already aware of the real matter in issue and they have also joined in issue, the lack of pleadings, if any, can never be treated as a ground to reject the claim at this stage. As it has been rightly observed by this court and also by the Apex Court that the pleadings cannot be given that much of importance, as it has to be given before a Civil Court and that the proceedings before the Rent Controller is only summary in nature and the provisions of the Code of Civil Procedure are not fully made applicable to the extent provided under the statute. .....?
12.The learned counsel for the respondent also relied on the following Judgments with regard to relative hardship:
(i) Rasi Silks v. T.A.Venkatachalam and others [2007 (3) MLJ 998]
(ii) M.Sheriff v. Kathija Beevi and another [1994 (1) LW 406]
(iii) A.P.Abdul Rasheed v. M/s.Hotel K.K.Residency [2010 (4) LW 871]
13.The learned counsel for the respondent relied on the Judgment reported in 1987 (2) SCC 707 [Shri Balaganesan Metals v. M.N.Shanmugham Chetty and others] for the purpose of establishing nature of building under occupation of the landlord and to claim eviction under Section 10(3)(c) of the Act.
14.The learned counsel for the respondent vehemently contended that the tenant did not dispute the fact that he sub-let a portion of the petition premises and the mutton shop is being run in the petition premises by the sub-tenant. The tenant did not dispute the averments of the landlord either in the counter or in the oral evidence let in by him. In the present Civil Revision Petition also, the tenant is not disputing the fact that he has sub- let a portion of the petition premises.
15.I have carefully perused the materials on record, the Judgments relied on by the learned counsel for the parties and considered the arguments of the learned counsel for the petitioner as well as the respondent.
16.The respondent/landlord filed R.C.O.P.No.20 of 2011, to evict the petitioner from the petition premises on two ground of requirement of additional accommodation and sub-letting. The landlord has not mentioned correct provision of law with regard to bona fide requirement of additional accommodation. Further, the landlord through out his pleading, has stated that he require the petition premises for his own use. The landlord even though has alleged that he requires the petition premises for extension of his Dental Clinic, he has also alleged that he require the petition premises for pathway to his newly constructed residential building and quarters for his staff, working in the Dental Clinic. The tenant also contended that the landlord did not plead and prove the relative hardship. On the other hand, the tenant, according to him, has pleaded and proved relative hardship.
17.It is well settled that quoting of wrong provision of law will not be fatal for the relief being granted to the landlord. From the counter filed by the tenant and evidence let in by him, it is clear that he understood the claim of additional accommodation of landlord. Therefore, the contention of the learned counsel for the petitioner/tenant that the tenant was unable to defend the petition effectively is untenable.
18.In the Judgments reported in 1998 (2) LW 216, 1994 (1) LW 406 and 2003 (2) MLJ 604 cited supra, it has been held that in a rent control proceedings regarding pleadings need not be strictly followed as followed in the Civil Court. Even without pleadings, evidence can be let in and the Court can consider such evidence in arriving at the conclusion on merits. In the present case, the tenant pleaded and let in evidence that from and out of the income from the petty shop run by him in the petition premises, he is maintaining his family members and that he has sold goods on credit basis to his various customers and if he is evicted immediately, he cannot recover the money and he and his family members will be thrown into the streets. The learned Rent Controller considered the advantages and he on the claim of the landlord for additional accommodation and hardship that may be caused to the tenant and concluded that the hardship to the tenant is less than the advantage to the landlord. The learned Rent Controller also noted that the tenant had not taken any steps to find out the alternate accommodation and could have recovered the amounts from his customers during the pendency of R.C.O.P. The said conclusions are as per facts and law, applicable to the present case. There is no illegality or irregularity in the said findings. The appellate authority also considered the facts and law in this regard and rightly confirmed the order of the learned Rent Controller. Therefore, the contention of the tenant on this point is untenable and unsustainable.
19.The next contention of the learned counsel for the tenant that request of landlord for additional accommodation is not maintainable as the petition premises and the Dental Clinic are not situate in one Unit under one roof. There is a gap of 100 feet. Admittedly, the petition premises and the premises where the Dental Clinic is running are very near to each other, but not in the same building. The landlord requires the petition premises to use it as a pathway to his newly constructed house and the staff quarters to be constructed. The landlord's requirement is not for expansion of his Dental Clinic in the petition premises.
20.It is relevant here to note Section 10(3) (c) of the Act, which reads as follows:-
"10(3)(c) 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 residential purposes or for purposes of a business which he is carrying on, as the case may be."
21.Both the learned Rent Controller and the learned Appellate Authority erred in ordering eviction on the ground of additional accommodation. The admitted facts clearly show that the portion under occupation of landlord and the portion under occupation of the tenant are not in the same building. Both the learned Rent Controller and the appellate authority after recording the fact that there is a gap of 100 feet between the two properties and they are very near to each other, committed irregularity in ordering eviction on the ground of additional accommodation. The Courts below committed an illegality in not considering Section 10(3)(c) of the Act in proper perspective, which can be invoked only when the landlord and the tenants are occupying portions in the same building namely, one unit.
22.For the above illegality and irregularity, the orders of the Courts below ordering eviction on the ground of additional accommodation is set aside.
23.The next point for consideration is whether the landlord proved the sub-letting by tenant and the orders of the Courts below suffer from any infirmity, irregularity or illegality.
24.The landlord has specifically pleaded that the tenant has sub-letted a portion of petition premises and a mutton shop is being run by the sub- tenant thereon. He spoke about the same in his evidence also. The tenant in his counter statement did not deny the averment that he sub-let the petition premises and a mutton shop is being run in the sub-let portion. He did not cross-examine the landlord on this point and did not let in any evidence denying the sub-letting. Both the courts below have considered this point properly and ordered eviction on the ground of sub-letting. The learned counsel for the petitioner/tenant did not challenge the findings of sub- letting in this civil revision petition also.
25.I have considered the materials and the orders of the Courts below and hold that the landlord has proved the sub-letting by tenant. It is pertinent to note that the tenant did not deny the sub-letting at any point of time. Therefore, I hold that the orders of the Courts below ordering eviction on the ground of sub-letting do not suffer from any infirmity warranting interference by this Court.
26.In the result, the orders of the Courts below ordering eviction on the ground of requirement of additional accommodation is set aside. The orders of the Courts below ordering eviction on the ground of sub-letting is confirmed.
27.With the above clarification, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. The petitioner/tenant is granted three months time from today to vacate and deliver vacant possession to the respondent/landlord, if he files an affidavit within one week from today, undertaking to vacate and deliver vacant possession on or before the time granted by this Court.
10.10.2014 Index :Yes Internet :Yes smn2 V.M.VELUMANI,J.
smn2 To
1.The Rent Control Appellate Authority, (Principal Sub-Court), Tirunelveli.
2.The First Additional Rent Controller, (I Additional District Munsif Court) Tirunelveli.
Pre-delivery order in C.R.P.(MD)No.2094 of 2013 & M.P.(MD) Nos.1 of 2013 & 1 of 2014 10.10.2014