Madras High Court
Aziz Snack Bar vs Mr.Prashanth Kumar J.Jain on 7 March, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.03.2012 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.No.2814 of 2010 and M.P.No.1 of 2010 Aziz Snack Bar ... Petitioner Vs. 1.Mr.Prashanth Kumar J.Jain 2. Mr. Kkalpesh Kumar A.Jain ... Respondent PRAYER: This Civil Revision Petition has been filed under Section 25(1) of the Tamil Nadu Buildings Lease and Rent Control Act 1960 against the order and decreetal order dated 15.12.2009 made in M.P.No.494 of 2009 in R.C.A.No.815 of 2007, in R.C.O.P.No.2232 of 2006 on the file of VIII Court of Small Causes at Chennai. For Petitioner : Mr.R.Sundaramurthy For Respondent : Mr.A.R.Balaji O R D E R
This revision is directed against the order passed by the learned Rent Control Appellate Authority passed in M.P.No.494 of 2009 in R.C.A.No.815 of 2007 dated 15.12.2009 in refusing to appoint Commissioner as sought for by the appellant/tenant.
2. The revision petitioner was the appellant/tenant and petitioner before the Rent Control Appellate Authority and the respondents are the respondents/landlords and the respondents before the Rent Control Appellate Authority.
3. The case of the petitioner before the Rent Control Appellate Authority would be as follows:-
i) The respondents/landlords herein filed the eviction petition against the petitioner on the ground of owners' occupation under Sec.10 (3)(a)(iii) of the Tamil Nadu Buildings ( Lease and Rent Control) Act 1960 without any bonafide requirement of the small shop portion under his occupation, to which, the tenant has filed a detailed counter and deposed before the trial court and explained that the landlord does not require the small shop, when 10 vacant shop portions in the ground floor and 2800 sq.ft of vacant portion in the first floor and second floor portion of the premises are available and though the above fact mentioned by the tenant was categorically agreed and admitted by the petitioners/landlords, the learned trial Judge misconstrued and misled by the judgments referred by the petitioners/landlords counsel and ordered eviction.
ii) There are 10 shop portions which were vacated after the filing of the petition and further the first floor portion which was under the occupation of the another tenant was also vacated subsequent to the filing of this appeal and as such under the change of circumstances and subsequent events the bonafide of the landlord and the balance of convenience of the parties are to be placed before this Court and the same could be done only by appointing an Advocate Commissioner to inspect the petition premises and to reveal the position of the vacant possession with the landlord and the placement of the building etc., and as such if an order appointing an Advocate Commissioner is not passed by this Court to know about the subsequent events the tenant will be put to much hardship and loss.
iii) Therefore, the tenant prays that the Court may be pleased to appoint an Advocate Commissioner to inspect the petition premises and to intimate to this Court about the subsequent events of vacant possession available to the landlord to decide the bonafide and the balance of convenience of the parties hereto as on today to decide the matter in issue.
4. The objections raised by the respondent/landlord in his counter would be as follows:-
i) The present application filed for appointment of Advocate Commissioner is most uncalled for. There is no change of events subsequently, since the above took place well before the trial of the petitioner/appellant. The petitioner/appellant could have filed an application for appointment of Advocate Commissioner, in the trial stage itself. He had not done so, in the trial since he had no case. The issue, which he wants to do through Advocate Commissioner, was put forth by the petitioner/appellant, in his evidence and arguments, but the Rent Controller passed an order of eviction against the petitioner/appellant.
ii) No reason has been stated as to why he has not preferred an application either in the trial, or why he did not do so since the appeal pending from the year 2007 is unexplained. The matter was taken for argument in the month of August, 2009 and the respondents agreed and filed written arguments, even at that stage, no application for Advocate Commissioner was filed. Only after the matter posted for judgment, the petitioner/appellant has come with unfair and frivolous application to protract the proceedings and cause agony to the respondent.
iii) Hence, for the reasons stated above, M.P.No.494 of 2009 in R.C.A.No.815 of 2007 for appointment of Advocate Commissioner be dismissed for want of any change in events subsequently, which has not taken place.
5. The learned Rent Control Appellate Authority had clubbed yet another application filed in M.P.No.492 of 2009 along with the petition filed for appointment of Commissioner and a common order has been pronounced in which the appointment of Commissioner was also dismissed.
6. Aggrieved petitioner/tenant had approached this Court by filing the revision against the order passed by the learned Rent Controller.
7. Heard Mr.R.Sundaramurthy, learned counsel for the petitioner/tenant and Mr.A.R.Balaji, learned counsel for the respondent/landlord.
8. The learned counsel for the revision petitioner/tenant would submit in his argument that the order passed by the learned Rent Control Appellate Authority, in dismissing the application for appointment of Commissioner to bring the subsequent events happened after the disposal of the Rent Control petition before Rent Controller, to prove the malafide intention of the respondent/landlord by noting the vacant portions of other tenaments to which the landlord can occupy for his own occupation, is not sustainable. He would also submit that the learned Rent Control Appellate Authority had failed to appoint a Commissioner by wrongly relying upon the judgment reported in 2009 (4) TLNJ 430 (Kalyani Ragunath v. K.Muthuramalingam) which was in respect of fixation of fair rent. He would further submit in his argument that the said judgment was not relevant to the present facts of the case, since the case described in the said judgment was in respect of fixation of fair rent. He would further submit in his argument that the respondent/landlord had procured subsequent vacant possession during the pendency of the appeal i.e., after disposing of rent control petition and therefore, it is necessary for the petitioner/tenant to file application for appointment of Commissioner to state change of event accrued after the disposal of RCOP. He would further submit that no prejudice would be caused to the landlord in appointing a Commissioner and the appointment would only go to show the correct position to understand the bonafide requirement of the landlord and therefore, the Appellate Authority ought to have allowed the application for appointment of Commissioner under Order 26 Rule 1 CPC. He would also submit in his argument that the Court can appoint a Commissioner for the purpose of noting the physical features in order to help the Court to decide the dispute. He would cite judgments of this Court reported in 2000(1) CTC 279 (Pillaiyar v. Ganesan) and 2002 (2)MLJ 133 (Saraswathy v. Viswanathan) in support of his arguments. He would therefore, request the Court to interfere the order passed by the learned Rent Control Appellate Authority and to direct the said forum to appoint a Commissioner as sought for by the petitioner/tenant for the said purpose. He would therefore request the Court to allow the revision accordingly.
9. The learned counsel for the respondent/landlord would submit in his argument that the landlord has filed the rent control original petition seeking the building in possession of the tenant for his own occupation as it would be more suitable for using it as a godown since it is located in the ground floor. He would also submit that he had asked all the 10 tenaments in the ground floor for using it for godown purpose after certain alterations and therefore, the vacancy found in other tenaments will not in any way improve the case of the tenant. He would also submit that in the petition itself the landlord had averred that he is requiring the portion occupied by the 10 tenemants in the ground floor for using as godown for his existing business in the city. He would also submit that the said vacancy of the other tenaments had taken place even before the commencement of the trial and the questions have been put by the tenant in the cross-examination of the landlord and he had also admitted about the vacancy of other tenaments. He would further submit that the vacancy of the other tenements is adjacent to the building in possession of the tenant and it will not in any way improve the case of the tenant since the landlord had required the premises in possession of the tenant for his own occupation along with other tenaments in the ground floor. He would further submit that the tenant did not ask for the appointment of Commissioner even at the time when the other tenements had become vacant which was prior to the commencement of the trial and the appointment of Commissioner sought for in the appellate stage is therefore, not sustainable. He would bring it to the notice of this Court to a judgment reported in 1995 (1) MLJ 184 (P.K.Duraivelu Mudaliar v. S.P.Moanasundaram) that the appointment of Commissioner during the appeal is not at all germane and it will not provide for proper adjudication in the matter of dispute in between parties by the Appellate Authority. He would also bring it to the notice of this Court yet another judgment reported in 2010 (2) CTC 189 (Satishkumar v. Selvadurai) for the same principle. He would therefore request the Court that the Appellate Authority had followed the judgment reported in 2009 (4) TLNJ 430 (Kalyani Ragunath v. K.Muthuramalingam) which was on the principle of appointment of Commissioner in fair rent fixation, but the same principle is applicable here also and there was no defect in the order passed by the learned Appellate Authority in dismissing the application for appointment of Commissioner. He would further submit in his argument that the if the appointment of Commissioner is ordered, it will not in any way help and the Appellate Authority to come to a correct conclusion since already evidence were available on that point. He would further submit that the appointment of Commissioner was filed only to protract the proceedings and the present Civil Revision Petition also filed only for that purpose. Therefore, he would request the Court to dismiss the civil revision petition with costs.
10. I have given anxious thoughts to the arguments advanced on either side.
11. The tenant had preferred the present revision against the order, refusing to appoint a Commissioner to note down the vacancy of other tenements numbering 10 in the ground floor in order to prove that there was no bonafide requirements of the premises held by the tenants in his occupation. On a careful perusal of the order passed by the learned Appellate Authority, it is seen that the Appellate Authority had come to a conclusion that the appointment of Commissioner was not feasible in the appellate stage and for that, it had relied upon the judgment of this Court reported in 2009 (4) TLNJ 430 (Kalyani Ragunath v. K.Muthuramalingam) passed by this Court in fair rent fixation case. Similarly, yet another judgment of this Court reported in 1995 (1) MLJ 184 (P.K.Duraivelu Mudaliar v. S.P.Moanasundaram) has been cited for the similar principle and this Court has categorically come to a conclusion which would run as follows:-
"8. Thus it is seen in the Act that nowhere the appellate authority or the High Court is empowered with the appointment of a Commissioner for the first time to look into a particular issue or identity the facts, which can be thrashed out from the very kind of evidence to be adduced before the Rent Controller in this case. The defence forwarded by the revision petitioner is that there were several tenants in the demised property and several tenants have already vacated and such portions were not utilised for providing accommodation for the daughter of the land lord and if so her married daughter is living in another convenient different house with her family and that therefore the requirement of the rental premises for own use and occupation is not bonafide. It is worthwhile to note at this juncture that the tenant has not filed nor come forward with any application to appoint a Commissioner before the learned Rent Controller. But however this does not mean that he cannot ask for the appointment of a Commissioner at the later stage either in the appeal provided if good course are available to him, but unfortunately it is not a fit case where the appointment of a Commissioner can be availed of to the tenant herein for the simple reason that if a Commissioner was deputed it is not at all possible for him to go and ascertain whether all the persons are actually living in the several portions of the demised property and from how long they were residing therein and what was their occupation and when they become tenants, which would mean if it is allowed, it would mean a trial and enquiry has to be taken by the Commissioner, which is not permissible in law. As was justifiably contended, the appellate authority has not deputed the Commissioner to go an conduct an enquiry by examining the building to find out whether all occupants are residing in the demised premises and what are all the amenities available for them is not within the ambit of the Rent Control Act and therefore, the learned Rent Control Appellate Authority has justifiably rejected the claim of the revision petitioner herein."
12. It is the case of the tenant that the adjacent tenements in the ground floor, of the tenant, became vacant during appellate proceedings. However, it was shown before the Appellate Authority that those tenements fell vacant even before the commencement of the trial before the learned Rent Controller and questions were posed to the land lord regarding the bonafide intention in evicting the tenant from the demised premises. Therefore, the finding of the learned Appellate Authority that the cause of action for filing the application for appointment of Advocate Commissioner, had already been accrued even during the pendency of RCOP. It was rightly pointed out by the learned Appellate Authority, the tenant was not entitled to ask for appointment of Commissioner when he did not opt it before the Rent Controller.
13. Furthermore, I could see that the landlord has filed the rent control petition seeking to evict the tenant from the demised premises for his own occupation to have a godown in the ground floor along with other 10 tenements, after making certain alterations in the ground floor and it has been categorically stated in para 6 of the petition filed before Rent Controller. Therefore, the vacancy of other 10 tenements in the ground floor is not a matter to reach a decision as to whether there is any bonafide requirement of the premises in possession of the tenant when other tenements fell vacant and was in possession of the landlord.
14. The judgments cited by the learned counsel for the tenant reported in 2000 (I) CTC 279 (Pillaiyar v. Ganesan and another) and (2002) 2 MLJ 133(Sarawathy v.Viswanathan) are in respect of the appointment of Commissioner during the pendency of the civil suit in a trial stage, wherein it was also found by this Court that the appointment of Commissioner would be helpful to come to a correct conclusion. As far as this case is concerned, even if the Commissioner goes to the petition premises and finds that all the 10 tenements were lying vacant and were in the possession of the landlord, the case of the landlord that he requires all the 10 tenements including the tenements in possession of the tenant herein for his own occupation to use them as godown would not be defeated. Therefore, such an appointment of Commissioner, even if permitted in the appellate stage, will not be helpful to the Court.
15. It is well settled law that the appointment of commissioner cannot be used for gathering evidence in the case. Therefore, the prayer of the tenant seeking appointment of Commissioner in appellate stage cannot be done since it is in the nature of gathering of evidence. Therefore, the order passed by the Rent Control Appellate Authority need not be interfered. It is brought to the notice of the Court that the appeal is at the verge of pronouncing the orders after hearing the arguments. In the said circumstances, this Court does not find any reasons to interfere with the orders passed by the learned Rent Control Appellate Authority and the revision deserves dismissal.
16. In fine, the civil revision petition is dismissed. No costs. Consequently connected miscellaneous petition is closed.
ssn NB: The Registry is directed to send records, immediately to the Rent Control Appellate Authority concerned, after issuing orders.
To The VIII Court of Small Causes Chennai