Madras High Court
M/S.Hotel K.K.Residency vs A.Maria Charles on 7 August, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 7.8.2012 Coram: THE HONOURABLE MR JUSTICE G.RAJASURIA C.R.P.NPD.No.1145 of 2012 and M.P.No.1 of 2012 M/s.Hotel K.K.Residency rep.by its Managing Partner, K.M.Thajudeen ... Petitioner vs. A.Maria Charles .. Respondent Civil revision petition filed against the judgement and decree dated 22.7.2011 passed by the 1st Additional Subordinate Judge-cum-Rent Control Appellate Authority, Coimbatire, in R.C.A.No.10 of 2009 reversing the order dated 6.3.2009 passed by the District Munsif-cum-Rent Controller, Coimbatore. For Petitioner : Mr.M.Venkadeshan For Respondent: Mr.V.Raghavachari ORDER
Animadverting upon the against the judgement and decree dated 22.7.2011 passed by the 1st Additional Subordinate Judge-cum-Rent Control Appellate Authority, Coimbatire, in R.C.A.No.10 of 2009 reversing the order dated 6.3.2009 passed by the District Munsif-cum-Rent Controller, Coimbatore, this civil revision petition is filed.
2. The parties, for the sake of convenience are referred to hereunder according to their litigative status and ranking before the Rent Controller.
3. A thumbnail sketch of the germane facts in a few broad strokes can be encapsulated thus:
(i) The revision petitioner herein/landlord filed the RCOP.No.203 of 2007, invoking Sections 10(3)(c) and 14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking eviction on the grounds of 'demolition and reconstruction' and for 'additional accommodation'.
(ii) The matter was resisted by filing counter by the respondent herein/tenant.
(iii) During enquiry, the Managing Partner of the petitioner company Mr.Thajudeen examined himself as P.W.1 along with P.W.2. and marked Exs.P1 to P8. The tenant examined himself as RW.1 and marked Ex.R1.
(iv) Ultimately, the Rent Controller ordered eviction on both the grounds.
(v) As against the said order, the tenant preferred the appeal R.C.A.No.10 of 2009 for nothing but to be dismissed by the rent control appellate authority, confirming the order passed by the rent controller.
(vi) As against the said judgement, C.R.P.Nos.1812 and 2119 of 2010 were filed before this Court. Whereupon, this Court, vide order dated 12.8.2010 set aside the judgement of the rent control appellate authority and remitted the matter back to the appellate authority, as in the absence of the arguements submitted on the side of the appellant therein/tenant, the matter was decided. Whereupon, the appellate Court once again heard both sides and passed the order setting aside the order of the Rent Controller and consequenly dismissing the RCOP.
4. Challenging and impugning the said judgement of the Rent Control Appellate Authority, this revision has been filed by the landlord on various grounds.
5. The learned counsel for the revision petitioner/landlord, at the first instance itself would submit a memo to the effect that he is not pressing the revision concerning the ground of 'demolition and reconstruction', however he would press the civil revision petition only concerning the ground of 'additional accommodation, as contemplated under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act. He would pilot his arguements, which could tersely and briefly be set out thus:
(i) The respondent herein/tenant as R.W.1 candidly and categorically, during cross-examination, admitted the factum of the landlord partnership firm's requirement for additional accommodation; the existence of four shops in the ground floor of the building concerned; the running of a bakery on the extreme West side in the two shops by the partnership firm itself and the location of the petition mentioned demised premises to the East of such bakery shop. In such a case, the Rent Control Appellate Authority was not justified in simply raising certain doubts imaginarily in setting aside the order of the Rent Controller.
(ii) In view of the legal views currently obtaining relating to the fact that the partnership firm cannot simply figure as a petitioner in RCOP matters, without even any of the partners figuring as an eo-nominee party, the landlord herein filed the petition in M.P.No.1 of 2012 and as such, the same may be allowed.
6. In a bid to extirpate and torpedo the arguements as put forth and set forth on the side of the revision petitioner/landlord, the learned counsel for the respondent herein/tenant would advance his arguements, the gist and kernal of them would run thus:
(i) The partnership firm is running a hotel under the name and style 'M/s.Hotel K.K.Residency' and it has nothing to do with the separate building in which the demised premises is forming a part.
(ii) Simply because there is a bridge connecting the Eastern separate building belonging to 'M/s.Hotel K.K.Residency' with the separate building in which the demised premises is located, that it does not mean that both the buildings should be taken as one unit and the question of invoking Section 10(3)(c) would be a well-nigh impossibility.
(iii) If at all any provision of law that could be invoked by the revision petitioner/landlord, the same would be Sec.10(3)(a)(iii) of the Act.
(iv) There are no bona fides on the part of the landlord in seeking eviction.
(v) Absolutely there is no shard or shred, molecular or miniscule, iota or jot extent of evidence to show that M/s.Hotel K.K.Residency is running the said 'Malabar Restaurant' and there is only evidence to show that one Thajudeen is running the 'Malabar Restaurant' on the first floor of the building, in which, the demised premises is located.
(vi) There is no staircase also connecting the ground floor and the first floor, wherein the 'Malabar Restaurant' is being run.
(vii) Only for extending the business in 'Malabar Restaurant', the ground of 'additional accommodation' is invoked and there are no bona fides on the part of the landlord at all in the facts and circumstances of this case in seeking eviction of the tenant on the ground of additional accommodation.
(viii) Absolutely there is nothing to find fault with the judgement of the the Rent Control Appellate Authority.
(ix) The precedents of the Honourable Apex Court would go against the landlord's claim.
Accordingly, the learned counsel for the respondent herein/tenant would pray for the dismissal of the civil revision petition.
7. The points for consideration are as under:
(i) Whether the petition M.P.No.1 of 2012 filed by the landlord could be allowed by way of correcting the mis-description of the petition, by permitting the petitioner to specify the Managing Partner-K.M.Thajudeen as eo nomine petitioner?
(ii) Where there is any illegality or perversity in the finding of the rent control appellate authority in holding that the landlord was not entitled to get evicted the tenant on the ground of additional accommodation?
8. At the outset itself, I would like to fumigate my mind with the following decisions:
(i) The decision of the Hon'ble Apex Court reported in AIR 1984 SC 1570 [M/s Chhotelal Pyarelal, the partnership firm and others v. Shikharchand]; an excerpt from it would run thus:
"2.Now, there can be no doubt that since the Code of Civil Procedure does not apply to proceedings under the HRC Order, no application for eviction can be maintained against a firm in the firm name. The firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order 30 of the Code of Civil Procedure that a firm can sue and be sued in its own name without the partners being impleaded eo nomine. It is therefore clear that the firm of M/s Chhotelal Pyarelal could not be sued in the firm name by the respondent in so far as the application for eviction under the HRC Order was concerned. But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. ......"
(ii) The precedent of this Court reported in 1988-2-L.W.62 [Common Wealth Packing Industries & another v. S.S.Perumar, Propr. Pioneer Engineering Works, Madras and another]; an excerpt from it would run thus:
"7. As stated earlier, the revision petition filed by the other partner A.J.D. Silva has already been dismissed by this Court. That has become final and the order against the other partner, who is the second respondent is the present revision petition is conclusive. As far the second petitioner in this revision petition is concerned, he is admittedly a partner, who has been representing the firm before the Rent Controller and conducting the entire proceedings. In fact, he has given evidence as R.W.1. It is not his case that he was in any way prejudiced by non-impleading of the other partner A.J.D. Silva at the stage of the rent control proceedings or himself individually as a party with proceedings. In fact,
8. The decision of the Supreme Court on which reliance is placed makes it clear that it is only a case of misdescription of the parties to the application and not a question of non-impleading of the parties. In fact, in the case before the Supreme Court viz., M/s Chotelal Pyarelal v. Shikarchand, the matter arose at a stage when the proceedings before the Rent Controller had not been heard on merits; but had been disposed of on the acceptance of a preliminary objection that the proceeding was not maintainable because the partners had not been impleaded as parties thereto. While the Supreme Court held that the firm is merely a compendious name for the partner constituting it and that it is only by virtue of the provision of O.30 C.P.Code, that a firm can sue and be sued in its own name without the partners being impleaded eo nomine, and therefore, in cases under the Rent Control Act, the partner should be impleaded to eo nomine, the Supreme Court took care to say that it would only be a case of misdescription of the parties....."
8. The decision of the Supreme Court on which reliance is placed makes it clear that it is only a case of misdescription of the parties to the application and not a question of non-impleading of the parties. In fact, in the case before the Supreme Court viz., M/s Chotelal Pyarelal v. Shikarchand, the matter arose at a stage when the proceedings before the Rent Controller had not been heard on merits; but had been disposed of on the acceptance of a preliminary objection that the proceeding was not maintainable because the partners had not been impleaded as parties thereto. While the Supreme Court held that the firm is merely a compendious name for the partner constituting it and that it is only by virtue of the provision of O.30 C.P.Code, that a firm can sue and be sued in its own name without the partners being impleaded eo nomine, and therefore, in cases under the Rent Control Act, the partner should be impleaded to eo nomine, the Supreme Court took care to say that ti would only be a case of misdescription of the parties....."
9. A mere running of the eye over the decisions of the Hon'ble Apex Court cited supra, would exemplify and demonstrate that Order XXX Rule 1 of CPC is not applicable to rent control proceedings.
10. Whereas, the learned counsel for the landlord would venture to distinguish and differentiate on factual basis this case from the case available in the decision of the Hon'ble Apex by pointing out, that their the factual matrix before the Supreme Court was that the tenant partnership was wrongly described instead of showing eo nomine partners. Whereas, here the landlord is a partnership firm.
According to him the inclusive decision as contained in Section 2(6) of the Act, which runs as under:
"2(6) "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant;"
would enable the landlord registered partnership to preclude itself as a petitioner and as such the dictum as found enunciated in the Supreme Court's decision cannot blindly be applied to the facts and circumstances of this case.
11. However, I would like to disagree with such an agreement as put forth on the side of the landlord for the simple reason that the Hon'ble Apex Court in the process of incorporating the definition pertaining to the tenant did not render such a finding. What the Apex Court would lay down as law is that Order XXX Rule 1 of CPC itself is not applicable to rent control proceedings. When such is the rule, in respect of landlord alone, the Court cannot carve out an exception and hold that Order XXX Rule 1 of CPC is applicable. If any such distinction is sought to be made, it would be one that of tweedledum and tweedledee; rock and hard place; six of the one and half a dozen of the other, but not one that of chalk and cheese. Hence, when this Court raised a specific querry as to how the landlord would perpetuate the proceedings with such misdescription, the learned Counsel for the landlord would file the petition M.P.No.1 of 2012 seeking correction, the operative portion of it would run thus:
"It is therefore prayed that this Hon'ble Court may be pleased to amend the short and long cause title as K.M.Thajudeen, Managing Partner M/s.K.K.Residency, at Door No.7, Sasthri Road, Ram Nagar, Coimbatore, petitioner/respondent/ landlord instead of M/s.Hotel K.K.Residency, rep.by its K.M.Thajudeen, Door No.7, Sasthri Road, Ram Nagar, Coimbatore-9..Petitioner/respondent/ landlord in CRP(NPD) No.1145 of 2012 on the file of this Hon'ble Court against RCA No.10 of 2009 on the file of I Additional Sub-court, (Rent Control Appellate Authority) Coimbatore, against RCOP No.203 of 2007h on the file of District Munsif Court (Rent Controller Authority) and consequentially to amend the same in RCOP No.203 of 2007 on the file of District Munsif Court (Rent Controller), Coimbatore, and RCA No.10 of 2009 on the file of I Additional Sub-Court (Rent Controller, Appellate Authority) Coimbatore, and pass such further or order......"
12. In view of the above, point No.(i) is decided that this petition M.P.No.1 of 2012 could be allowed and to the effect that Thajudeen could be shown as petitioner No.2 along with the existing petitioner in the RCOP as well as in the CRP and in all other connected records and accordingly it is ordered. Registry shall carry out necessary corrections.
Point No.2:
13. I would like to fumigate my mind with the following decisions cited on the side of the respondent herein/tenant:
(i) (1988) 4 SUPREME COURT CASES 648 GANGARAM V. N.SHANKAR REDDY;
(ii) (1993) 1 L.W.331 S.V.M.NAGAVAIRAVASUNDARAM V. 1.S.BAGEERATHAN 2.N.SUBBARAYALU MR.VEERANATH RAO;
(iii) (1996) 2 L.W.555 S.DEVAN/V.KRISHNAN/K.SALIM AHMED V. N.PALANIAPPAN ;
(iv) (2003) 1 LW 236 K.M.RANGANATHAN V. S.SANKARALINGAM;
(v) (2010)4 L.W.871 A.P.ABDUL RASHEED V. M/S.HOTEL K.K.RESIDENCY REP.BY MANAGING PARTNER K.M.THAJUDEEN
14. A mere poring over and perusal of those decisions would shed light on the point that so far this case is concerned that predicament has not arisen.
15. I would like to observe that if a landlord requires a premises for additional accommodation for a purpose other than the purpose for which he is already occupying the portion concerned, then the question of going deep into the matter would arise.
16. Here it is pellucidly and palpably clear from the admission of the tenant as under:-
@ ehd; kDbrhj;jpy; 1970 ypUe;J bgl;of;fil elj;jptUfpnwd;/ Kj;J Rg;gpukzpaj;jplkpUe;Jjhd; filia thliff;F vLj;njd;/ vd;Dila filapd; fjt[ vz;/12. rh!;jphp nuhL. uhk;efjpy;jhd; fil cs;sJ/ 2002 y; jiujsj;jpYs;s 4 filfisa[k; Kj;JRg;gpukzpaj;jplkpUe;J nf/nf/burpbld;rp fpuak;bgw;Wtpl;ldh; ork;gh; 2002 ypUe;J ,d;iwanjjptiu nf/nf/burpbld;rpaplk;jhd; thlif brYj;jptUfpnwhk;/ bkhj;jk; 4 filfspy; 2 filia nf/nf/ burpbld;rp brhe;j cgnahfj;jpw;Fk; kw;bwhU filapy; ehDk; kw;bwhU filapy; 204-2007 kDtpd; kDjhuh; kDtpd; kDjhuUk; elj;jptUfpnwhk;/ filf;F fPHg[wk; nf.nf.burpbld;rpapd; bkapd;gpy;o'; cs;sJ/ v';fSila filfSf;F fpHg[wKk; bkapd; gpy;o';fpw;F fpHg[wKk; thfd';fs; epWj;Jtjw;fhd ,lk; cs;sJ/ m';F xU nfl; cs;sJ/ nf/nf/burpbld;rpa[k; v';fSila filfSk; jdpj;jdp fhk;gt[z;oy; cs;sJ/ ehd;F filfSf;Fk; nkny kyghh; ncwhl;ly; elj;jptUfpwhh;fs;/ nkw;go filahaJ Rkhh; 3 tUl fhy';fshf ,a';fp tUfpwJ/ ehd; khof;Fr;brd;W kyghh; bu!;lhuz;ow;Fs; brd;W ghh;j;jjpy;iy/ me;j ncwhl;lypd; rkayiw v';Fs;sJ vd;W vdf;Fj; bjhpahJ/ bkapd;gpy;o';fpw;Fs;Sk; kyghh; ncwhl;ly; cs;sjh vd;why; mijg;gw;wp vdf;Fj;bjhpahJ/ v';fs; filfSf;F nky; cs;s kyghh; ncwhl;lYf;Fr; bry;yntz;Lk; vd;why; fpHnkyhf cs;s ghyj;jpd; tHpahfj;jhd; bry;yntz;Lk;/ me;jg;ghyk; ncwhl;ly; Muk;gpj;j fhyj;jpypUe;nj cs;sJ/ v';fs; filfSf;F nky; cs;s kyghh; ncwhl;liy nf/nf/burpbld;rpf;fhuh;fs;jhd; elj;jp tUfpwhh;fsh vd;W vdf;Fj;bjhpahJ/ / / that there are four shops in the ground floor of the building concerned and in that, in the extreme two Western shops, the said petitioner-landlord-partnership firm itself is running the bakery business; to the East of the said bakery shop, the demised premises is situated, wherein the respondent/tenant is running his bunk shop; to the East of the said petition mentioned premises was a textile shop under tenancy.
17. It is a fact that already the landlord partnership firm got evicted the said tenant from the textile shop, vide order dated 12.8.2010 in C.R.P.No.1929 of 2010 and got possession of the said premises.
18. As has been already pointed out supra, on the extreme West side of the building in the ground floor, the two shops are under the occupation of the landlord firm for running their bakery business. As such, in the petition mentioned premises only the tenant herein is occupying and running the bunk shop. Once the respondent/tenant is evicted there will be no embargo for the landlord firm to extend their occupation by removing the partition wall and have a larger space for running their business lucratively.
19. There is no denying or gainsaying of the fact that in the first floor of the same building 'Malabar Restaurant' is being run by the same M/s.Hotel K.K.Residency. In such a case, the question of doubting the application of Section 10(3)(c) of the Tamil Nadu Buildings(Lease and Rent Control) Act is next to impossibility.
20. Even though in the counter various pleas were taken by the tenant and also in the chief chief examination affidavit of the tenant-R.W.1, yet, during cross-examination, the tenant-R.W.1 candidly and categorically, pulling no punches admitted the case of the landlord/petitioner, to the effect that the landlord who is in occupation of a part of the premises in the ground floor itself, wants additional accommodation for their business purpose itself.
21. As such, the landlord is occupying already a portion of the building for carrying on business and the tenant also is carrying on business in the adjacent portion of the same ground floor of the building. The entire building is a non-residential building. Hence, the question of having any doubt about the application of Section 10(3)(c) does not arise at all. I would even say that the plea of the respondent/tenant is nothing but a load of baloney fraught with falsity and inconsistency.
22. A mere reading of the Rent Control Appellate Authority's judgement would evince and display that he totally misunderstood the gamut of the case and he did not even choose to read the cross-examination of R.W.1 and simply proceeded tangentially, warranting interference in revision.
23. The fact that if the tenant in the said shop wherein he is running his bunk business is evicted, he could carryon his business in some other building and that would not cause much hardship to him. Whereas, on his vacating the premises, the benefit that would accrue to the landlord would really outweigh the hardship if any that would cause to the tenant, because the landlord will be able to enlarge his business by demolishing the wall separating the demised premises and its bakery shop and it is quite obvious. The landlord, from the available evidence, is proved to be running the hotel business and eatery business in large scale and the additional accommodation for it has become imminent.
24. In this connection I would like to refer to the following decisions:
(i) (2001) 8 SUPREME COURT CASES 110 S.R.BABU V. T.K.VASUDEVAN AND OTHERS, certain excerpt from it would run thus:
"10. Sub-Section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) reads thus:
"11.(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court 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 his personal use."
11. A perusal of sub-section (8) makes it clear that to invoke this sub-section the landlord must show that (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub-section (3) and sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act.
14. In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters."
(ii) 2007( 3) CTC 152 RASI SILKS BY ITS PARTNER K.ARUNACHALAM VS. RASI SILKS T.A.VENKATACHALAM, an excerpt from it would run thus:
"12. . . . . . Holding that the crucial aspect is a special instance in matters arising under Section 10-(3)(c) of the Act and that there should be a categorical finding by the statutory authorities on hardship that may be caused to the Tenant by granting it, will outweigh the advantage to the landlords in K.A.Loganatha Naicker v. S.R.Balasundaram Mudaliar, 1974(2) MLJ 256, it was held thus:
"It is imperative for the authorities in cases arising under Section 10(3)(c) of the Tamil Nadu Act (XVIII of 1960), to give specific finding whether the hardship the tenant is likely to suffer would outweigh the advantage to the landlord or vice versa. Unless this aspect is noticed and adjudged upon by the statutory authorities, there is no complete enquiry as contemplated in respect of the petitions arising under Section 10(3)(c) of the Act."
21. Contention of Tenant is that the landlords can expand the hotel business on the open space available, which is abutting the premises. In his evidence, P.W.1 has stated the open space cannot be utilised for running the hotel. It is well settled that the landlord can choose the portion required and it is not for the Tenants to dictate terms. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999(1) MLJ 233, this Court has held that the landlord can choose the portion required and it is not for the tenant to dictate terms. It is not the object of the provision to weigh the hardship of the Tenant as against the test of the landlord on a delicate scale, giving the benefit of the slight tilt in favour of the tenant."
25. Applying the above said principles in the admitted factual matrix of this case, it is crystal clear that the benefit that would accrue to the landlord would certainly outweigh the hardship if any to which the tenant would be put into on his vacating the premises.
26. Accordingly I would like to set aside the judgement of the rent control appellate authority, and the order of the Rent Controller shall stand revived in respect of ordering eviction of the tenant on the ground of additional accommodation.
27. On hearing the pronouncement of this order, the learned counsel for the tenant would pray for a years' time for vacating the premises by the tenant. However, the learned counsel for the landlord would submit that six months' time might be granted.
28. Taking into consideration the fact that now-a-days it would be somewhat difficult to find a non-residential building for running a business, I am of the view that a years' time could be granted as prayed for by the learned counsel for the tenant and accordingly it is granted, subject to payment of past arrears, if any and also the future rent regularly till the tenant vacating the premises. To that effect an affidavit shall be filed by the respondent herein within 15 days from the date of receipt of a copy of this order.
29. In the result, the civil revision petition is allowed. However, there is no order as to costs.
Msk 7.8.2012
Index:Yes
Internet:Yes
To
1. 1st Additional Subordinate Judge-cum-
Rent Control Appellate Authority, Coimbatire
2.The District Munsif-cum-Rent Controller, Coimbatore
G.RAJASURIA,J.
Msk
C.R.P.NPD.No.1145 of 2012
7.8.2012