Madras High Court
A.P. Swamy vs V. Kunjithapadam on 28 April, 1994
Equivalent citations: (1994)2MLJ536, 1995 A I H C 2781, (1995) 1 RENCR 539, (1994) 2 MAD LJ 536, (1995) 1 RENCJ 340
JUDGMENT Thanikkachalam, J.
1. The tenant is the petitioner herein. The landlord filed a petition for eviction under Sections 1O(2)(1)and 10(3)(a)(iii) of the Tamil Nadu Buildings (lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 (hereinafter referred to as 'the Act') The respondent herein is the owner of the premises bearing door No. 227, Awai Shanmugham Road, Madras. The petitioner herein is the tenant in occupation of the ground floor portion of the said premises including one car shed on a monthly rent of Rs. 1,000 which was increased to Rs. 2,260 per month under an order passed by the Rent Controller in R.C.O.P. No. 4216 of 1984 dated 12.9.1988. According to the landlord the tenant committed wilful default in payment of rent at the admitted rate of Rs. 1,000 per month from 1.7.1988 to the end of August, 1989. According to the landlord the tenant also committed wilful default in payment of rent i.e. the difference between the agreed rent and the fair rent fixed by the Rent Controller from November, 1984 onwards. It was therefore pleaded that the tenant committed wilful in payment of rent as contemplated under Section 1O(2)(1) of the Act and thereby rendering himself liable to be evicted. The landlord is carrying on business in automobile spare parts under the name and style of Eastern Agencies. The said business is looked after by his son Kalyana Sundaramand he expanded the business by taking the dealership with Fenner Belts, Ameo Batteries and Mofa Mopeds. He also obtained loan from various banks for expanding his business. The landlord is doing his business in a rented premises at No. 1, General Patters Road, Madras. The owner of the said shop issued a notice of eviction. The owner of the premisesat General Patters Road also filed a petition for eviction against the landlord herein in R.C.O.P. No. 287 of 1987. The tenant herein has practically closed the business carried on by him in the petition premises and also negotiating for the sale of his business. He is having his own flat at Ashok Nagar and he can shift his business to his own premises. Therefore, the landlord required the petition premises for accommodating his business bona fide under Section 1O(3)(a)(iii) of the Act.
2. In the counter, the tenant stated as under: The Rent Controller determined the fair rent in R.C.O.P. No. 4216 of 1984. But as against that order an appeal was filed before the Rent Control Appellate Authority in R.C.A. No. 1 13 of 1989 and the same is pending. After the month of August, 1989 rent at the rate of Rs. 1,000 was paid to the landlord. The landlord has not issued the receipts for the payment of rent for the said period. Since the tenant was compelled to pay a sum of Rs. 15,000 by an order passed by the Rent Controller under Section 11(4) of the Act, the tenant paid the said sum. Since the tenant has paid the entire rent due to the landlord the petition filed under Section 10(2)(1) of the Act is liable to be dismissed. It is not correct to state that the landlord was asked to be vacated from the premises in which he is carrying on his business. Earlier the landlord filed a petition for eviction in R.C.O.P. No. 3948 of 1982 under Section 1O(3)(c) of the Act and that petition was dismissed. The order passed in the said petition would operateas resjudicaia against the landlord. Therefore, there is no bona fide on the part of the landlord in requiring the petition premises under Section 1O(3)(a)(iii) of the Act.
3. The landlord examined himself as P.W. 1. One G.P. Swamy examined himself as R.W. 1. The landlord filed 18 documents and the tenant filed 2 documents. Considering the facts arising in this case, the Rent Controller came to the conclusion that the tenant committed wilful default in payment of rent as contemplated under Section 1O(2)(1) of the Act. The Rent Controller also held that the petition filed under Section 1O(3)(a)(iii) of the Act is maintainable and the landlord established his bona fide in requiring the petition premises under Section 1O(3)(a)(iii) of the Act. Accordingly eviction was ordered on both these grounds. On appeals, the Rent Control Appellate Authority confirmed the order of eviction passed by the Rent Controller and it is against that order, the present revision has been preferred by the tenant.
4. Learned Counsel appearing for the tenant submitted as under:
There is no wilful default in payment of rent from July, 1988 to February, 1989. The Rent Controller was not correct in placing reliance on Ex. P-1 and Ex. P-2 which are only self-serving documents. Even though the rent was paid by the tenant the landlord failed to issue the receipts for the payment of rent. The payment in court is only pursuant to and in compliance with the order of the court in M.P. No. 547 of 1989. and without prejudice to the rights and contentions of the tenant and it does not in any way militate against the case of the tenant. Eviction cannot be ordered in the present petition for subsequent defaults. The nonpayment of the differential rent from the agreed rent and the fair fixed by the Rent Controller would not amount to wilful default in payment of rent as contemplated under Section 1O(2)(1) of the Act. Inasmuch as the tenant paid the admitted rate of rent to the landlord for the petition period, it cannot be said that the tenant is liable to be evicted under Section 1O(2)(1) of the Act.
5. There is no bona fide on the part of the landlord in requiring the petition premises under Section 1O(3)(a)(iii) of the Act. The tenant is in occupation of the ground floor and the landlord is in occupation of the first floor. Hence petition filed under Section 1O(3)a)(iii) of the Act is not maintainable. The petition for eviction ought to have been filed under Section 1O(3)(c) of the Act, which was dismissed by the Rent Controller. The order passed in the earlier rent control petition would operate asresjudicata against the landlord. It is not correct to state that the landlord was asked to be evicted from the rented premises in which he is carrying on his business. The fact that the landlord is filing successive petitions for vacating the tenant would go to show that the landlord is resorting to various means to evict the tenant. Hence the authorities below were not correct in ordering eviction under Section 1O(3)(a)of the Act.
6. On the other hand, learned Counsel appearing for the respondent/landlord submitted as under: The tenant is in occupation of the ground floor the agreed rent is Rs. 1,000 per month. In R.C.O.P. No. 4216 of 1982 the Rent Controller fixed the fair rent at Rs. 2,260 per month. No doubt, the tenant filed an appeal against the said order and the appeal is now pending before the Rent Control Appellate Authority. The fair rent fixed by the court below was on 12.9.1988. The tenant committed wilful default in payment of rent not only in respect of the agreed rent of Rs. 1,000 but also in respect of the difference between the agreed rent and the fair rent fixed by the Rent Controller. Even after the petition was filed, the tenant failed and neglected to pay the rent. Hence, the landlord filed the petition under Section 11(4) of the Act in M.P. No. 547 of 1989 and in pursuance of the order passed in the said application the tenant paid the rent due for 15 months in 6.10.1989. Even thereafter the tenant committed wilful in payment of rent and hence the landlord filed another petition under Section 11(4) of the Act and in pursuance of the order passed in the said application the tenant paid four months rent of Rs. 4,000 on 2.5.1990. It is not correct to state that the tenant paid the admitted rate of rent for the petition period and the landlord failed to issue receipts. Thus, the tenant committed wilful default in payment of rent not only during the petition period but also during the pendency of the eviction proceedings. Hence, the authorities below were correct in coming to the conclusion that the tenant committed wilful default in payment of rent as contemplated in Section 10(2)(1) of the Act. The landlord is carrying on business in a rented premises at General Patters Road, Madras. He wanted to accommodate his business in the petition premises The tenant is in occupation of the ground floor. The landlord was asked to be evicted from the rented premises in which he is carrying on his business. The first floor in the premises at No. 271 Awai Shanmugham Salai is being used by the landlord for his residential purpose. Since the landlord required the ground door which is under the occupation of the tenant for non residential, purpose he filed a petition for eviction under Section 1O(3)(a)(iii) of the Act. The earlier petition was filed under Section (3)(3)(c) of the Act. In a portion in the upstair, the landlord was carrying on his film distribution business. For the sake of accommodating that business in the portion under the occupation of the tenant, the petition under Section 1O(3)(c) was filed. Now since the landlord wanted the petition premises for the purpose of accommodating his business which he is now carrying on in a rented premises at General Patters Road, Madras. He filed the present petition under Section 1O(3)(a)(iii) of the Act. Since, there is change of circumstances petition under Section 1O(3)(a)(iii) of the Act is maintainable. The authorities below were not correct in stating that the petition should be filed under Section 1O(3)(c) of the Act. The tenant is also having his own premises in Ashok Nagar and he can accommodate his business in that premises. Hence, it was submitted that the landlord established his bona fide in requiring the petition premises under Section 1O(3)(a)(iii) of the Act.
7. I have heard the rival submissions.
8. The premises situale at No. 227, Awai Shanmugham Salai, Madras belongs to the landlord. The tenant is in occupation of the ground floor and the landlord is in occupation of the first floor of the said premises. The monthly rent for the portion occupied by the tenant is Rs. 1,000. The landlord filed a petition for fixation of fair rent and the fair rent was fixed at Rs. 2,260, in R.C.O.P. No. 4216 of 1982 on 12.9.1988. According to the landlord the agreed rate of rent of Rs. 1,000 per month was not paid by the tenant from 1.7.1988 and the tenant has not paid the difference between the agreed rent and the fair rent fixed by the Rent Controller, from the date of the order. According to the tenant lie paid the agreed rent from July, 1988 to February, 1989 to the landlord. According to him since he preferred an appeal against the order fixing the fair rent by the Rent Controller, he need not pay the differential rent between the agreed rent and the fair rent fixed by the Rent Controller. Therefore, what remains to be seen is whether the tenant has paid at cast the agreed rent of Rs. 1,000 for the period from July, 1988 to February, 1989. According to the tenant he paid the admitted rent of Rs. 1,000 per month during that period but no receipt was issued by the landlord. Both the authorities below pointed out that during that period the parties the were fighting acrimoniously. In such circumstances, it was pointed out that it would not have been possible for the tenant to say that he paid the rent for the said period and he did not obtain the receipt from the landlord. There is no evidence on record to show that he ever demanded the issue of receipts for payment of rent for the said period from the landlord. Further it remains to be seen that during the pendency of the eviction petition the tenant failed to pay the rent to the landlord. The landlord filed two petitions under Section 11(4) of the Act. In pursuance of the orders passed in the said petition, the tenant a sum of Rs. 15,000 and Rs. 4,000 respectively on 6.10.1989 and 2.5.1990 respectively. Under Section 11(1) of the Act, the tenant should not only pay the arrears of rent, but also, should pay the rent regularly every month during the pendency of the eviction proceedings. In any event, there is no evidence on the side of the tenant to show that the rent at the rate of Rs. 1,000 was paid between July, 1988 and February, 1989. Therefore, the tenant is liable to be evicted under Section 10(2)(1) of the Act. Both authorities below concurrently came to the conclusion that the tenant committed wilful default in payment of rent for the pet it ion period. Hence, lam not inclined to interfere with the same.
9. Another ground in this revision relates to eviction order passed under Section 10(3)(a)(iii) of the Act. The landlord is in occupation of the first floor. He is using the first floor for residential purpose. The tenant is in occupation of the ground floor. The tenant is using the ground floor for non-residential purpose. The landlord is carrying on his business in General Patters Road in a rented premises. According to the landlord eviction proceedings were initiated against him. Therefore, he wanted to accommodate his business in the petition premises. The tenant submit led in the present case the petition for eviction ought to have been filed under Section 10(3)(c) of the Act and not under Section 10(3)(a)(iii) of the Act since the landlord is in occupation of a portion of the premisesat No. 227, Awai Shanmugham Salai, Madras-86. Learned Counsel for the landlord contended that inasmuch as the landlord is usinga portion for residential purpose and inasmuch as he required the petition premises for accommodating his business which he is carrying on in a rented premises, the petition for eviction can be filed only under Section 1O(3)(a)(iii) of the Act. Section 10(3)(c) of the Act states as under:
A landlord who is occupying only a part of the 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 purpose or for the purpose of the business which he is carrying on, as the case may be.
Admittedly, in the present case, the landlord is in occupation of the entire first floor portion and the tenant is in occupation of the ground floor. A plain reading of Section 1O(3)(c) of the Act would go to show that in the present case the petition ought to have been filed only under Section 1O(3)(c) of the Act. To elucidate this point, there is a decision of the Supreme Court in the case of Shri Balaganesan Metals v. M.N. Shanmughnm Chetly , wherein while considering the provisions of Section 1O(3)(a)(i), Section 1O(3)(a)(iii) and Section 1O(3)(c) of the Act, the Supreme Court held as under:
It is no doubt true that under Section 2(2) a building has been defined as not only a building or hut, but also part of a building or hut let separately for residential or non-residential purpose. That would, however, only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself by providing that the application of the definition is subject to the contextual position. Therefore, it follows that where the context warrants the entire building being construed as one integral unit, it would be inappropriate to view the building as consisting of several disintegrated units and not as one integral structure. Secondly there is vast difference between the words residential building and non residential building used in Section 10(3)(a)(i) and (iii) on the one hand and Section 10(3)(c) on the other. While Section 10(3)(a)(i) and (iii) refer to a building only as residential or non-residential. Section 10(3)(c) refers to a landlord occupying a part of a building, whether residential or non-residential. Further more, Section 10(3)(c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant occupying the whole or any portion of the remaining part of the building Is as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying "a part of building" seeking eviction of a tenant" occupying the whole or any portion of the remaining part of the building." If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying a part of a building seeking eviction of a tenant" occupying the whole or any portion of the remaining part of the building." It is therefore obvious that in so far as Section 10(3)(c) is concerned the Legislature has intended that the entire building irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. To import the expansive definition of the word "building" in Section 2(2) into Section 10(3)(c) would result in tendering meaningless the words "part of a building" occupied by the landlord and a tenant "occupying the whole or any portion of the remaining part of the building." The third factor militating against the contention of the appellant is that if a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Section 10(3)(a) docs not provide for eviction of tenants on the ground of additional accommodation for the landlord either for residential or non-residential purposes. It is a well settled rule of interpretation of statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling reasons for the Court to resort to that extreme contingency.
Therefore, in the present case, the petition filed for eviction under Section 10(3)(a)(iii) of the Act is not maintainable. Several decisions cited by the learned Counsel appearing on both sides are not mentioned herein in view of the above said decision of the Supreme Court.
10. According to the landlord the earlier petition was filed by him under Section 10(3)(c) of the Act since he was carrying on his film distribution basiness in a portion in the first floor. Since he required the petition premises for accommodating the said film distribution business, he filed a petition under Section 10(3(c) of the Act. But at present the landlord requires the petition premises for accommodating his business, which he is now carrying on in a rented premises at General Patters Road. Therefore according to the landlord the petition filed under Section 10(3)(a)(iii) of the Act is maintainable. Learned Counsel appearing for the tenant submitted that the order passed in the earlier eviction petition filed under Section 10(3)(c) of the Act would operate as res judicata against the landlord in the present eviction petition. According to the learned Counsel for the landlord since there is change of circumstances the present petition for eviction was filed under Section 10(3)(a)(iii)of the Act. Therefore the order passed in the earlier eviction petition filed under Section 10(3)(c) of the Act would not operate as res judicata. It is true that whenever there is change of circumstances and whenever any of the grounds in the Act is available to the landlord, he can always file a petition for eviction on that ground. In the present case, inasmuch as the petition for eviction was not filed under Section 10(3)(c) of the Act, we need not go into this aspect. Suffice it to say that the petition filed under Section 10(3)(a)(iii) of the Act is not maintainable on the facts arising in this case. The authorities below failed to appreciate the facts arising in this case in proper perspective. The later decision of the Supreme Court, cited supra, was not taken note of by the authorities below. In view of the foregoing discussions the order of eviction passed by the authorities below under Section 10(3)(a)(iii) of the Act is liable to be set aside. Accordingly I do so. However, the order passed by the authorities below under Section 10(2)(1) of the Act, is sustainable.
11. In the result, the revision is dismissed. No costs.