Madras High Court
M/S. The Calcutta Chemicals And Limited vs Taiyeb Yusufbhai Vakharia And Another on 6 August, 1999
Equivalent citations: 1999(3)CTC202
ORDER
1. By consent of both the parties, the civil revision petition itself has been taken up for disposal.
2. The respondents in the civil revision petition filed an application before the Rent Control Court, in R.C.O.P.NO. 2954 of 1994. Under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, for determining the fair rent of the building and to fix it at Rs. 25,482.50, The application was opposed by the tenant/respondent. The XVI Judge of the Small Causes Court, who held the enquiry, determined the fair rent payable for the building at Rs.l1,396 per month and passed an order accordingly, directing the tenant/respondent to pay the rent at Rs. 11,396 per month, from 5.12.1993 onwards. Aggrieved by the decision of the learned Rent Controller, the tenant preferred an appeal in RCA. No. 1313 of 1996 to the appellate authority while the landlord also preferred on appeal in 1325 of 1996. The appellate authority, by common order dated 25.6.1998, in RCA. Nos. 1313 of 1996 and 1321 of 1996, confirmed the order of the Rent Controller, fixing the fair rent at Rs.l1,396 per month. Therefore, the tenant has come up with this revision Petition.
3. Along with this C.R.P., an application for stay was filed in CMP No. 18429 of 1998. The revision petitioner also filed an application in CMP. No. 1751, praying him permit him to raise the plea of bar to the maintainability of the petition, under section 5 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as Act). The counsel appearing on either side submitted that the C.R.P. itself may be disposed of and therefore, it is that the C.R.P. has been taken up for hearing and disposal.
4. The main point urged for consideration in this civil revision petition is about the maintainability of the application in view of the bar under section 5 of the Act. According to the revision petitioner Viz., the tenant, the fair rent for the building has been fixed already in a proceeding under the act and therefore, the present revision is barred.
5. Section 5 of the Act reads as follows: When the fair rent of a building has been fixed for refixed under this Act, no further increase in such fair rent shall be permissible except in cases where some addition, improvement or alteration has been carried out at the landlord's expense and if the building is then in the occupation of a tenant, at his request, Provided that the fair rent as -increased under this sub-section shall not exceed the fair rent payable under this Act for a similar building in the same locality with such addition, improvement or alteration and it shall not be chargeable until such addition, improvement or alteration has been completed;
Provided further that any dispute between the landlord and the tenant in regard to any increase claimed under this sub-section shall be decided by the Controller.
(2) Where after the fair rent of a building has been fixed under this Act, there is a decrease or diminution in the accommodation or amenities provided, the tenant may claim a reduction in the fair rent as so fixed;
Provided that any dispute between the landlord and the tenant in regard to any reduction so claimed shall be decided by the Controller (3) Where the fair rent of any building has been fixed before the date of commencement of Tamil Nadu Buildings (Lease and Rent Control) Amendment Act, 1973. The landlord or the tenant may apply to the Controller or refix the fair rent in accordance with the provisions of Section 4 and on such application, the Controller may refix the fair rent."
6. Basing his argument upon Section 5 of the Act, the tenant viz., the revision petitioner could contend mat the application filed by the landlord or fixing fair rent, in which an impugned order has been passed, is not maintainable. First of all, as a fact, it has to be established by the tenant that in respect of the same building, already fair rent has been fixed. In this connection, a reference to para-6 of the counter has to be made. In para-6, after referring to the age and condition of the building, it is stated as follows:
'More over no repairs have been carried out by the petitioners for the premises and after the fixation of fair rent for the premises in 1978, no extra amenities or improvisation have been made or carried out for the premises.' The details as to the fair rent fixed for the building, as to when it was fixed, and the order pursuant to which it was fixed, are not given. There is no definite plea, but only a suggestion, which is vague. Nor any copy of the order or proceeding was enclosed along with the written statement. When the application for fixation of fair rent was taken up for enquiry by the Rent Controller, the petitioner/tenant did not choose to file the necessary document that would form the basis for raising the plea of bar under Section 5 of the Act Even before the lower appellate authority, the document was not produced.
7. I find from the Order of the lower appellate authority that no plea was put forward, objecting to the maintainability of the petition under section 5 of the Act. Neither before the Rent Controller, nor before the lower appellate authority, this plea was urged for the consideration of the authorities by the tenant. Therefore, it has to be taken that this plea is raised now for the first time. It is not stated specifically in the counter filed that the petition is barred under section 5 of the Act and therefore, it is not maintainable. A vague and half-hearted averment has been made to the effect that fair rent of the building has been fixed, without giving necessary details.
8. Now in that context, the revision petitioners has filed an application in CMP.No. 1752 of 1999, seeking permission to file certified copy of the order dated 14.12.1978 in H.R.C.No. 2743 of 1976 as additional evidence. In the affidavit, it is not stated as to why the copy of the order was not filed and why it could not be filed. It is simply stated that on account of change of management of the petitioner's company, they were unable to produce the certified copy of the order.
9. Now coming to the certified copy of the judgment, it refers to the petitioner as Saraswathi. The Order reads, that the application was filed with reference to the premises bearing Door Nos. 4 and 5/149, Broadway, Chennai. Ofcourse, it is now stated that the present landlord purchased the property from the said Saraswathi. But, it is also stated on the side of the landlord that they also own other buildings as well, in the same locality. The petition filed here for fixation of rent is with reference to the ground floor of the premises bearing Door No. 91, Broadway, Madras 600 108. Whereas, the property, which was the subject matter of the petition in HRC. No. 2743 of 1976 is described as door Nos. 4 and 5/149, Broadway. It is not established that the said order relates to the petition mentioned building. It is not explained in the affidavit nor stated that the old number is 4- 5/149, Broadway and it corresponds to Door No. 91, Broadway. Such an averment is not made in the petition filed in support of the same. Therefore, there is nothing to show that it relates to the petition mentioned building.
10. Moreover, I have already referred to the fact that there is no explanation given as to why the document could not be produced at the time of enquiry. We find from the said document that the order was passed on 14.12.1978. The application for copy of the order was made on 27.1.1979. The copy was made ready on 22.3.1979 and was delivered on 29.3.1979. If really the order pertained to the petition mentioned property, definitely it would have been filed by the petitioner at the time of enquiry. Even otherwise, when the order shows that copy of the same was received as early as in the year 1979 and in the absence of any explanation, muchless of acceptable nature for the non-production of the same, the petitioner cannot be now permitted to file the same order, requesting it to be received as an additional evidence.
11. Further, as a question of law, it has to be held that in a revision, a party cannot be permitted to file an application to adduce further evidence. It has been held in the decision reported in The Collector of Madras, v. A.N. Gajendran, 1988 (2) L.W. 49, by M.N. Chandurkar, C.J., as he then was, that at the stage of revision, such a request cannot be urged. It has also been ruled in the decision reported in Voora Mahalakshmamma v. Veera Reddy, 1994 MLJ 383, that it is well settled that no additional evidence can be let in at the stage of Revision. It is staled there that "even though the working of Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act is wider than Section 15 of the Civil Procedure Code, yet, the Court is of the view that no additional evidence can be let in at revision stage." The same view was earlier taken by this Court in the decision reported in Bank of Baroda rep. by its Chairman v. Mahendra Dadha & 2 others, 1982 TNLJ 319, where it has been held that in view of the legal position, the Court will not be justified in receiving additional evidence while sitting in its revisional jurisdiction.
12. Therefore, in view of the legal position and in view of the factual situation, I have to hold that the application filed by the petitioner in CMP. No. 1752 of 1999 deserves to be rejected. Hence, it follows that there is nothing to show that the fair rent of the building in question has been already fixed by the Rent Controller in any proceeding. Therefore, when there is absolutely no shred of evidence to hold so, the very objection to the maintainability of the application must fail. However, as a question of law as well, I have to hold that the petitioner is on a sticky wicket.
13. Nodoubt, the legal position is clear that once the fair rent has been fixed, an application for fixation of fair rent for a second time, is not maintainable. We have the decisions of this Court reported in Sha Dhanaraj Chunilal v. Vedachalam Chetti. 1986 (99) L.W. 672. Moses Pillai v. Govindan, 1948 MLJ 51 and Venkateswara Rao v. Mohammed Mohibulla Sahib 1953 (I) MLJ 490, which are the Rulings which lay down in emphatic terms that the Section is peremptory and permits an increase in rent only where some addition, improvement or alteration such as is described in that clause has been carried out at the landlord's expense after the fixation of the rent and that it does not permit an increase in any other case.
14. But here, what has to be noted is that the language of the section does not confer a benefit or right upon the tenant. For the section provides that the landlord can ask for revision, provided some addition, improvement or alteration has been carried out. Thus, it does not say that no revision can be made at all. If that is so, perhaps we can hold that a right has been created in favour of the tenant. For it says that further increase in fair rent will permissible in certain circumstances. In other words, it is, to the effect that an application for fixation of fair rent cannot be entertained by the Rent Controller, where already fair rent has been fixed, except in oases where the landlord has carried out certain improvements, addition or alteration to the building as envisaged in the Section. The Section is more in the nature of a bar similar to bar of resjudicata. It prohibits the filing of an application. Infact, the very prayer in the application filed by the petitioner herein in CMP .No. 1751 of 1999 is to permit the petitioner to raise the plea of bar created by Section 5 of the Act. For this plea is decidedly dependent upon proof or disproof of certain facts. Thus, it is obvious mat it is in the nature of a plea of bar. It is not a benefit or right conferred on the tenant, only in such a case it can be contended that a tenant cannot contract out of the same as there is no estoppel against statute. According to me, it is not in the nature of right. Therefore, it is in the nature of plea akin to lea of res judicata. Thus, it relates to procedure and underlines the effect and impact of a proceeding where already fair rent has been fixed. It is a plea that concerns the jurisdiction of Rent Controller and a finding on the plea in favour of the party would oust the jurisdiction of the Rent Controller. For like the plea of res judicata, it precludes the man from avowing the same thing in successive applications. It must be raised in the pleadings specifically so that necessary points can be framed for consideration by the Courts. The effect of Section 5 is to transform the question of fact viz., the fact that already fair rent was fixed, into question of law, viz a bar to fix again.
15. I have already referred to the fact that in the counter filed, the particulars given are vague. Ofcourse, the entire argument proceeds only on the assumption that there is such an order and it relates to the petition mentioned building. But, factually I have already held that it has not been established that there was any proceeding for fixation of rent relating the petition mentioned building and that in that proceeding fair rent was fixed by the Rent Controller.
16. A Full Bench of the Andhra Pradesh High Court has held in the decision reported in Anjaneyalu v. Ramayya, , that if one wants to raise the plea of res judicata, the Court has to see whether the elements that constitute res judicata are present in a given case, which means an investigation into the facts and that it is not a pure question of law that would be debated at any stage. Their Lordships have held that where the plea of res judicata was not put forward in the plaint nor did it form the subject of any issue and not even debated either in the trial court or before the Division Bench in appeal and the case was prima facie excluded from the operation of the principle embodied in Section 11, and therefore, the appellants cannot be permitted to urge the objection for the first time. This Ruling would squarely apply to the facts of this case.
17. One can understand that if in the counter filed, the petitioner had laid sufficient foundation for raising such plea or he must have let in evidence in the court by producing the order and speaking to it. Ofcourse, in cases even if no specific point or issue is framed by the Court below, if necessary basis is laid and already available in the form of a plea or by way of evidence before the Courts below, the Court, in such circumstances, will be justification in permitting a petitioner to raise such a plea for the first time. That will be purely on the ground that already sufficient basis has been laid or indicated for the building up of such a plea at the later point of time. But, in this case on hand, it can never be stated that the petitioner has adduced materials or has made specific plea, giving particulars in the counter. In the counter, as already stated, preceding number is not given and the date of the order is also not given. It is not stated specifically that therefore, there is bar under Section 5 of the Act. In the course of evidence also, no material was placed before Court to sustain such a plea.
18. The Allahabad High Court has held in the decision reported in Sukhni v. Sukhbasi, , that a party in whose favour finding was given, had not raised the plea of res judicata, it would deemed to have been waived. Res judicata must be expressly pleaded and if it is not, it will be deemed to have been waived.
19. Here, the bar under Section 5 of the Act has not been specifically pleaded or raised, and therefore, it being one in the nature of a plea, it must be held mat the tenant has waived that plea. It has also been held in the decision reported in Charan Dass v. Thakur Dass, , as follows:
"The principle of constructive res judicata applies only to case in which the party against whom it is sought to apply was unsuccessful in the previous suit or proceedings. It cannot be applied against a person who in the previous suit or proceeding had been successful. Plea of res judicata can be waived by a party. The plea is decidedly dependent upon proof or disproof of many facts. If a party chooses not to plead such facts, he can be stated to have waived the plea. Ordinarily, it is not permissible to allow a plea of res judicata to be raised for the first time in appeal. To invoke the doctrine of res judicata, the ingredients contemplated by Section 11 should be satisfied. The Court has to see whether the elements that constitute res judicata are in a given case, which means an investigation into the facts being upon several aspects contemplated by that Section. It is not a pure question of law which could be debated at any stage."
20. The Apex Court has held in the decision reported in State of Punjab v. B.D. Kaushal, , that if necessary facts were present in the mind of parties and gone into by Court, there cannot be waiver of plea of res judicata. Conversely, it has to be stated that if the necessary facts are not present and was not gone into by the Court, then the waiver of plea of res judicata can be inferred.
21. The Orissa High Court has held in the decision reported in Sahadeb Nayak v. Satyabadi, , that the plea of res judicata has to be specifically pleaded and proved and it cannot be permitted to be taken for the first time in appeal.
22. Learned counsel for the petitioner relied upon a decision of the Apex Court reported in Raval & Co v. K.G. Ramachandran, , to contend mat the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory tenant and that is an incident of the tenure regarding the building. I am of the view that the above cited decision cannot be apposite to the case on hand.
23. Learned Counsel for the petitioner also referred to the decision reported in A.C. Jose v. Sivan Pillai, 1984(1) SCC 656, for the position that there is no estoppel against statute. But, I have already held that this is not a benefit or right conferred upon the tenant. It is only a procedural embargo placed upon a landlord in applying for fixation of fair rent, once it has been already fixed up by the Rent Controller, when improvements and additions are not made. Therefore, the question of estoppel against statute does not arise at all. Even otherwise on facts, it has not been made out that any fair rent was fixed for the building.
24. Learned counsel for the petitioner again relied upon the judgment of the Supreme Court reported in Kiran Singh v. Chaman Paswan, to contend that when the very order fixing the fair rent is a nullity, it can be questioned by the tenant at any time. The decision relied upon is to the effect that a decree passed by the Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is 1'"sought to be enforced or relied upon. But, that is not the case here. The Order passed by the Rent Controller cannot be said to be a nullity, more so on facts.
25. Therefore, in such circumstances, I have to hold that the challenge made to the order passed by the Rent Controller which has been, subsequently confirmed by the appellate authority is not tenable either in taw or on facts. Learned counsel for the petitioner did not raise any other objection to the order passed by the Rent Controller, fixing the fair rent. Ofcourse, in a half-hearted manner, he attempted to, challenge the finding of the Rent Controller regarding the market value of the land, Put, the lower Appellate Court has given adequate, reasons for determining the market value of the land. The extent of the site is 1106 sq. ft. The landlord has given the value of the same at Rs.45,00,000 per ground. He has also produced the sale deed regarding sale of the property in the said area. The property is situate in the heart of the business centre of the city viz., in Broadway. The Engineer, who has been appointed to evaluate the property, determined the value of the same at Rs. 12,00,000 per ground. But, the Engineer who was appointed at the behest of the tenant has fixed the value of the site at Rs. 17,31,840 per ground.
26. Therefore, considering the above circumstances, the location of the building the importance of the area, the fact that it is nearer to the business centre, schools. Court, Harbur, Beach, Railway Station and Bus-stand, the Rent Controller has determined the value of the site at Rs. 20,00,000 per ground. The appellate authority has confirmed this finding. It was the very case of the tenant that the value of the site is only Rs. 17,50,000 per ground. The appellate" authority, has also therefore, accepted the value given by the Rent Controller and fixed the value of the property at Rs. 20,00,000 per ground. I do not think that any error of law or appreciation has been committed by the Courts below in determining the value of the site at Rs. 20,00,000. Therefore, in such circumstances, the Revision has to be dismissed as devoid of merits.
27. In the result, CRP. No. 3654 of 1998 is dismissed, with costs, confirming the order passed by the appellate authority, confirming that of the Rent Controller. Consequently, the applications filed by the petitioner in 1751 and 1752 of 1999 shall stand dismissed, without costs. In view of the disposal of the Revision itself, the order of stay granted in CMR.No. 18429 of 1998 will stand vacated.