Madras High Court
T.S. Sethuraman vs J. Nagalakshmi And Anr. on 20 November, 1997
Equivalent citations: 1997(3)CTC339, (1998)IIMLJ547
ORDER K. Govindarajan, J.
1. The tenant who suffered order of eviction before the authorities below has filed the C.R.P.No.563 of 1997.
2. The landlady filed R.C.O.P. No. 479 of 1992 on the file of the learned Rent Controller /XVI Judge, Court of Small Causes, Madras under Sections 10(2)(1) and 10(3)(c) of the Act 18 of 1960. According to the landlady she had leased out the ground floor bearing Door No. 66 Scheme Road, Kamdar Nagar, Madras-34 to the respondent/tenant, except in room both attached on a monthly rent of Rs. 1,600. According to the landlady the tenant has not paid the rent from July 1991. In para 5 of the petition, the landlady has stated that since her husband had fallen down and had a fracture in his hip, and he was in the hospital for treatment, he requires periodical checkup in the hospital, and so the petitioner wants to settle at Madras. For that purpose, the above eviction petition was filed. The tenant contested the said petition by filing a counter wherein he has stated that he has paid the arrears and there was no arrears at all. It is the specific case of the tenant that the requirement of the building for additional accommodation is not bona fide.
3. The Rent Controller in his order dated 18.8.1993 disbelieved the case of the landlady that the tenant committed wilful default in payment of rent but ordered eviction on the ground of additional accommodation. Aggrieved against the same the tenant filed Appeal in R.C.A.No.1050 of 1993 on the file of the learned Appellate Authority/VII Judge, Court of Small Causes, Madras, who concurred with the findings of the Rent Controller regarding additional accommodation and confirmed the order of eviction. Aggrieved against the same, the tenant has filed the above C.R.P.No.563 of 1997.
4. In the eviction petition filed by the landlady it is only stated that "the petitioner's husband has fallen and had a fracture in his hip and he was in the hospital for treatment. As he requires periodical check-up in the hospital, the petitioner has to settle at Madras and for the said purpose the petitioner requires the said portion as additional accommodation bona fide". Admittedly, the landlady is in possession of one room bath attached in the said premises. If she wants to settle at Madras and reside in the said premises that one room both attached cannot be sufficient. The Rent Controller proceeds on the basis that the premises in question is required for the studies of the landlady's daughter, which is not the case of the petitioner. On the basis of the above pleadings, the learned counsel appearing for the petitioner has submitted that for maintaining the petition under Section 10(3)(c) of the Act, the relative hardship should be pleaded and established. The relevant provision under Section 10(3)(c) of the Act reads as follows:-
"Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord"
5. In this case, admittedly, there is no pleading nor evidence to prove that the hardship of the tenant if eviction is ordered will outweigh the advantage to the landlord.
6. Arguing contra, the learned counsel appearing for the respondent has submitted that though it is not pleaded, it can be taken note of the fact that one room which is in possession of the landlady is not enough to her needs since she wants to settle with her family members and that the tenant can get any residential premises in the area if he is vacated. According to him, the tenant has not given any evidence regarding his hardship. In Hiralal Moolchand Doshi v. Barot Ramanlal Ranchhoddas, , the Apex Court has held as follows:-
"It was thus not necessary to plead in the plaint itself. Often the parties at the stage of recording of evidence of bona fide personal requirement also lead evidence as to the comparative hardship of the landlord or the tenant. But such averments are not required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement".
7. Admittedly, in this case even the evidence is not available and also the authorities below have not at all discussed about the same, by framing any issues. Merely because the relative hardship has not been alleged, it cannot be said that the requirement of the landlady is not bona fide. But the authorities below merely on the basis of the requirement of the landlady proceeded that the landlady has pleaded the hardship. Such an approach is contrary to law and cannot be sustained. In Phiroze Bamanji Desai v. Chandrakanti N. Patel, , the Apex court has held as follows:-
"So far as the finding on the question of greater hardship is concerned, the District Judge decided against the respondents on the view that as soon as the landlord establishes that he reasonably and bona fide requires the premises for his own use and occupation, the burden of proving that greater hardship would be caused by passing a decree for eviction than by refusing to pass it is on the tenant and if the tenant fails to discharge this burden by producing proper evidence, a decree for eviction must go against him. This view in regard to the burden of proof, no doubt, prevailed at one time in various High Courts on the basis of the decision of the Court of Appeal in England In Kelly v. Goodwin but it can no longer be regarded as correct after the decision of this Court in Central Tobacco Co, v. Chandra Prakash. This Court speaking through Mittcr, J., pointed out in that case, while discussing Section 21(4) of the Mysore Rent Control Act, 1961, and what was said there must apply equally in relation to Section 13(2) of the Bombay Rent Act, which is in identical terms:
"We do not find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he is relieved of all further obligation under Section 21, Sub-section (4) and that once the landlord's need is accepted by the Court all further evidence must be adduced by the tenant if he claims protection under the Act. Each party must adduce evidence to show what hardship would be caused to him by the granting or refusal of the decree and it will be for the Court to determine whether the suffering of the tenant, in case a decree was made, should be more than that of the landlord by its refusal.
The whole object of the Act is to provide for the control of rents and evictions, for the leasing of building, etc., and Section 21 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. Clause(h) of Section 21 contains one of such grounds, namely, that the premises are reasonably and bonafide required by the landlord for occupation by himself. The onus of proof of this is certainly on the landlord. We see no sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all relevant evidence before the Court; the landlord must show that other reasonable accommodation was not available to him and the tenant must also due evidence to that effect. It is only after shifting such evidence that the Court must form its conclusion on consideration of all the circumstances of the case as to whether greater hardship would be caused by passing the decree than by refusing to pass it.
It is, therefore, clear that the District Judge placed the burden of proof wrongly on the respondents and the finding of fact arrived at by him on the question of greater hardship was vitiated by a mistake of law."
From the above it cannot be said that the burden shifts on the tenant to prove the relative hardship.
8. In Radhakrishnan v. Seethalakshmi, 1988 (1) L.W. 67 Sivasubramaniam, J., as he then was, has held as follows:-
"There is one other ground on which the landlord should fail, in this revision petition. He has not at all pleaded in the petition about the relative hardship that would be caused to the parties nor proved the fact that the relative hardship would be more on his part than on the part of the tenant. Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 contemplates that the landlord should prove that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord".
9. In Krishnaswamy v. Arumugam, 1993 (I) M.L.J. 122 Thanikkachalam, J., as he then was, has held as follows:-
"But the fact remains that the petition for eviction on the ground of additional accommodation must be filed in accordance with the provisions contained under Sec, 10(3)(c) of the Act. In a petition for eviction filed under Scc. l0(3)(c) of the Act, the landlord should clearly state that he required the petition premises by way of additional accommodation. But according to the provision, the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In order to decide this question of hardship, there must be proper pleadings in the petition. In the present case, the petition was filed by the landlord under Section 10(3)(c) of the Act, but there was no averment regarding the hardship as contemplated under the proviso to Section 10(3)(c) of the Act. If the hardship is not pleaded in a petition filed under Section 10(3)(c) of the Act that is fatal to the petition. (Sec the decisions in Radhakrishnan v. Seethalakshmi, 1988 (1) L.W. 67 and Annakkili Ammal v. H.C. Hussain, 97 L.W. 116). In the present case, the petition filed under Section 10(3)(c) of the Act contains no averment with regard to the hardship as contemplated under the provision to Scc.l()(3)(c) of the Act and hence the petition is not maintainable."
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.
11. Admittedly, in this case, no finding has been given by the Appellate Authority or the Rent Controller in this regard. Therefore the orders of the authorities below cannot be sustained, and they have to be set aside. In the normal course I should have remanded the matter to the authorities below for reconsideration. But, in this case there is no pleading or evidence available on record for such reconsideration. Hence the order of eviction is set aside and this CR.P.No.563 of 1997 is allowed. No costs.
12. C.R.P. No. 564 of 1997: The tenant who suffered order of eviction before both the authorities below has filed this C.R.P.No.564 of 1997.
13. The landlord/petitioner filed a petition in R.CO.P.No.478 of 1992 for eviction on the file of the learned Rent Controller/XVI Judge, Court of Small Causes, Madras, under Sections 10(2)(i) and 10(3)(a)(i) of the Act. According to the landlord as stated in the petition in para 6, he is doing business and most of his customers are at Madras and thus he desires to settle at Madras and carry on business. It is the specific case of the landlord that he has no residential building of his own in the city of Madras, except the building in question. The tenant filed a counter denying the requirement of the landlord. The Rent Controller in his order dated 18.8.1993 rejected the case of the landlord on the ground of Section 10(2)(i) of the Act, and ordered eviction accepting the case of the landlord on the ground that his requirement of the premises in question for his own occupation is a bona fide one. Aggrieved against the same the tenant filed an Appeal in R.C.A.No.1049 of 1993 on the file of the leaned Appellate Authority/VII Judge, Court of Small Causes, Madras, who concurred with the findings of the Rent Controller, and confirmed the order of eviction. Hence, the tenant has filed this Revision in C.R.P.No.564 of 1997, aggrieved against the said order.
14. It is the specific case of the landlord that he has been doing business and most of his customers are at Madras and so he desires to settle at Madras. The Rent Controller had raised a doubt whether the landlord requires the premises for his business or for residence. It is admitted in the evidence that the landlord has been doing business at Ranipet. The Rent Controller relying on Exs.P.-15 to P-17 to hold that the petitioner is doing business. The Rent Controller has further proceeded on the basis that the petitioner has been doing business at Madras, on the basis of Ex.P-2. The Appellant Authority proceeds on the basis that the landlord wants the premises in question with the intention to start the business at Madras. So, both authorities below without even appreciating the case of the landlord proceeded on their own way and passed the order of eviction. It is the specific case of the landlord that he is doing business and most of his customers are at Madras. It is not the case of the petitioner that he is doing business at Madras. It is also not the case of the petitioner that he is going to start the business at Madras. The authorities below relying on Exs.P-15 to P-17 came to the conclusion that the requirement of the landlord is bona fide. From Ex. P.15 it cannot be concluded that either the petitioner is doing business at Madras or he is going to start the business at Madras. Similarly Exs.B-16 and P-17 also cannot be relied on because nobody relating to that documents had been examined to prove the contents of the same. ExP-17 will only prove that the petitioner has been carrying on business at Ranipet. Except this document, there is no other acceptable evidence before the authorities below to show that the petitioner is having customers at Madras which necessitated him to reside at Madras or that he is having substantial business at Madras. The authority below namely, the Rent Controller, without applying this mind, had erroneously proceeded on the basis that the landlord himself is carrying on business at Madras, which is not the case of the landlord. The Appellate Authority also proceeded in a different direction saying that the landlord has desired to start the business at Madras and for that purpose he requires the premises.
15. In the evidence, P.W.1 has stated that the premises is required for his son's electrical business. He has further stated that the premises is required for residence and for business. But, unfortunately, that was not the case pleaded in the petition. But P.W.1 in his evidence has stated that there was already business at Madras. The way in which the landlord has come forward with his case stating one reason in the petition and another reason in his evidence will clearly show that the requirement of the landlord of the premises in question is not a bona fide one. The authorities below have not properly appreciated the pleadings and evidence.
16. The learned counsel appearing for the respondent has submitted that in view of Section 10(5) of the Act, the rights of the tenants are protected and so the eviction order need not be interfered with. The question of applying Section 10(5) of the Act will arise only on passing the order of eviction, after satisfying with the requirements of the provisions by the Rent Controller. In this case, as found earlier, the landlord has not provided that his requirement is bona fide. So, the question of applying Section 10(5) of the Act, to say that if the eviction order is obtained, the tenant will not in any way be prejudiced, will not arise. Hence the orders of the authorities below are set aside. Accordingly, this Revision in C.R.P.No.564 of 1997 is allowed. No costs.