Madras High Court
C.R.I. Limited, No. 33, College Road, ... vs Murali Mani And Three Others on 17 November, 2000
Equivalent citations: (2001)1MLJ118
ORDER
1. This civil revision petition has been filed by the tenant, as revision petitioner, against the judgment and decree, dated 1.8.2000 and made in R.C.A.No.395 of 1997, on the file of the VII Judge, Court of Small Causes, Madras, confirming the order and decretal order, dated 4.4.1997 and made in R.C.O.P.No.1315 of 1994, on the file of the XV Judge, Court of Small Causes, Madras.
2. The brief facts that are necessary for the disposal of this Civil Revision Petition are as follows:--
Smt.T.R. Subbulakshmi was the owner of the premises described in the Rent Control Petition and the said premises was teased out to the revision petitioner on 24.6.1971, by means of a lease agreement, for office use as-office-cum-showroom-cum- workshop-cum-godown, with effect from 15.2.1971. The revision petitioner has been paying rent at the rate of Rs.1,750 per month, with effect from February, 1978. The landlady lost her husband in the month of June, 1978 at Delhi and, therefore, she did not want to continue her stay at Delhi. The health of the landlady did not also permit her to continue at Delhi because of the weather condition. The landlady as well as her son requested the revision petitioner to vacate the demised premises and hand over possession of the same for the occupation of the landlady. Even though 15 years had elapsed the revision petitioner did not vacate and deliver possession of the demised premises to the landlady, saying that he will find suitable alternative accommodation and then vacate the premises. The revision petitioner has also committed wilful default in the payment of rent for the month of May, 1994. Therefore, the landlady filed the Rent Control Petition, as petitioner, against the revision petitioner, as respondent, for eviction on the ground of requirement of the demised premises for her own use and occupation and on the ground of wilful default in the payment of rent.
3. The revision petitioner, as respondent before the Rent Controller, while resisting the claim made by the landlady for eviction on the ground of own use and occupation and on the ground of wilful default, admitted that the landlady is the owner of the demised premises and the revision petitioner is in occupation of the said premises on a monthly rent of Rs.1,750 for non residential purposes. The revision petitioner has also pleaded payment of Rs.4,200 as advance to the landlady. According to the revision petitioner, the rent for the month of May, 1994 was sent by cheque, but the same was refused by the landlady. Therefore, the revision petitioner claims that no wilful default was committed by him as claimed by the landlady. The arrears of rent due to the landlady, from the revision petitioner was because of the fact of not receiving the rent, sent by the revision petitioner to the landlady. Rent was paid on 29.7.1994, during the pendency of the petition under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as "the Act"), and, therefore, the said petition was closed on 29.7.1994. The rent for the subsequent months were paid regularly, every month, as per the order of the Court. The revision petitioner did not assure the landlady or her son to vacate and deliver possession of the demised premises to the landlady. The requirement of the demised premises for own use and occupation of the landlady is not bona fide and genuine. Therefore, the revision petitioner sought for dismissal of the petition filed for eviction on the ground of own use and occupation and wilful default.
4. After considering the submissions made on both sides and in the light of the material evidence available on record, the learned Rent Controller has come to the conclusion that the revision petitioner has not committed wilful default in the payment of rent, but the requirement of the demised premises for own use and occupation of the landlady is bona fide and genuine. Accordingly, the learned Rent Controller ordered eviction of the revision petitioner from the demised premises. Aggrieved at the order dated 4.4.1997 and made in R.C.O.P.No.1315 of 1994, the tenant, as appellant, preferred an appeal in R.C.A.No.395 of 1997 on the file of the VII Judge, Court of Small Causes, Madras, After considering the submissions made on both sides and in the light of the material evidence available before Court, the learned Rent Control Appellate Authority sustained the order of eviction passed by the learned Rent Controller on the ground of own use and occupation and dismissed the Rent Control Appeal filed by the tenant, as appellant, on 1.8.2000. Since no appeal has been filed by the landlady questioning the correctness of the dismissal of the petition on the ground of wilful default and since the ground of wilful default has also not been urged before the Rent Control Appellate Authority by the landlady, the order passed by the Rent Controller has become final. It is against the order of eviction sustained by the Rent Control Appellate Authority on 1.8.2000, in R.C.A.No.395 of 1997, the tenant, as revision petitioner, has come forward with this Civil Revision Petition.
5. The landlady died during the pendency of the appeal in R.C.A.No.395 of 1997 and, therefore, the respondents herein were impleaded as respondents before the Rent Control Appellate Authority, as per the order dated 24.10.1997 in M.P.No.361 of 1997, on the file of the VII Judge, Court of Small Causes.
6. The learned Senior Counsel for the revision petitioner, Mr.T.R. Mani, urged the only ground in this Revision that the landlady Smt.T.R. Subbulakshmi, sought for eviction of the revision petitioner from the demised premises only for own use and occupation on the ground of her ill-health; that she died during the pendency of the Rent Control Appeal; that after her death nothing survives in the appeal, seeking an order of eviction for own use and occupation; that the learned Rent Control Appellate Authority had omitted to consider that fact while sustaining the order of eviction passed by the Rent Controller and that therefore, the revision petitioner is entitled to have the order of the Rent Control Appellate Authority set aside on this sole ground. The learned counsel for the revision petitioner also submits that he is not urging the other grounds raised in the memorandum of revision.
7. The learned counsel for the respondents herein, who are the legal representatives of the landlady, late Smt.T.R. Subbulakshmi, contends contra saying that the order of eviction secured by the landlady is an incorporeal right, that right having vested in the landlady, the decree obtained for eviction cannot be divested by her death and that such right passes on to the heirs of the landlady as it becomes part and parcel of the property owned by the landlady.
8. The learned Senior Counsel, Mr.T.R. Mani, brought to the notice of this Court the following decisions for consideration:- In Hasmat Rai v. Raghunath Prasad, AIR 1981 SC 1719, the Hon'ble Apex Court has held as follows:-
"..Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to .him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise, the landlord would derive an unfair advantage."
9. In M/s. Variety Emporium v. V.R.M. Mohd. Ibrahim, , it has been held by the Hon'ble Supreme Court as follows:-
"..No authority is needed for the proposition that in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and would the relief in the light of those events."
"..The tenant is entitled to show that the need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate Court. In such a situation, it would be incorrect to say that as a decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. The tenant can be precluded from so contending only when a decree or order for eviction has become final."
10. In Hameedia Hardware Stores v. B. Mohan Lal Sowcar, , the Hon'ble Apex Court has held that the need of the landlord should be genuine and that is the object of enacting Clause (e) of Section 10(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act and that, therefore, it is not enough that the landlord should merely desire to use or occupy the premises, but what is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family.
11. In Gulabbai v. Nalin Narsi Vohra, AIR 1991 SC 1761, the Hon'ble Supreme Court has held as follows:-
"..In appropriate cases, events subsequent to the filing of the eviction suit can be taken notice of and can be duly considered by the Court provided the same is relevant in determining the question of bona fide requirement Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the Court."
The decisions of the Apex Court referred to above would lend support to the argument advanced by the learned Senior Counsel for the revision petitioner, Mr.T.R. Mani, that the subsequent event of death of the landlady during the pendency of the appeal before the Rent Control Appellate Authority has to be taken note of, since the eviction was sought by the landlady for her own use and occupation on the ground of her ill-health and due to the climatic condition of Delhi, which was not suitable to her health.
12. The learned counsel appearing for the respondents herein contends that the landlady has sought for eviction of the revision petitioner from the demised premises not only for her own use and occupation, but also for the occupation of her son and daughter and that therefore the contention raised by the learned Senior Counsel for the revision petitioner, as mentioned above, cannot be sustained.
13. A careful perusal of the petition filed by the landlady for eviction would not disclose that she had sought eviction of the revision petitioner from the demised premises not only for her own use and occupation but also for the occupation of her family members. The fact that the son of the landlady had written a letter, dated 25.6.1980, to the revision petitioner requesting vacate to satisfy the wish of her mother, in her old age, will not lead to infer that eviction was sought for by the landlady for her own use and occupation and also for the occupation of her family members. It is only at the time of enquiry, an attempt has been made to show that her son and daughter at Delhi had decided to accompany and to reside with her. Such evidence cannot be taken note of to hold that the landlady had pleaded in the petition that she has required the demised premises for her own use and occupation and also for the occupation of the members of her family. If that fact is considered, the submission made by the learned counsel for the respondents that the landlady had sought for eviction of the revision petitioner from the demised premises, for her own use and occupation and also for the occupation of her family members, cannot be sustained. If that be so, the requirement of the demised premises for the own use and occupation of the landlady did not survive on her death during the pendency of the appeal.
14. The learned counsel for the respondents has brought to the notice of this Court the following decisions for consideration:-
In Vijayaraghavan v. Mohammed Yakub Rowther, 1976 (1) MLJ 123, a learned single Judge of this Court as follows:-
"..Whatever may be said of the general principle actio personalis moritur cum persona which itself has some exceptions, that general doctrine cannot be inducted as a matter of course into decisions obtained under peculiar circumstances and under given conditions and prescriptions as per the special enactment. The Tamil Nadu Buildings (Lease and Rent Control) Act provides for certain reliefs in favour of landlords and concurrently enables the tenants to continue in occupation of the demised premises unless they are compelled to surrender that possession by an invocation of the special law. Therefore, if a landlord or a landlady, as the case may be, comes to Court and obtains possession whereby the tenant would be obliged to surrender possession not under a contract, but under the provisions of a statute and that too under the stringent clauses, the invocation of which alone could enable the landlord or landlady to obtain possession, then such a right cannot be barely characterised as a personal right which ought to die with the person concerned. The exception to the above doctrine that personal right dies with the person can certainly be invoked having regard to the peculiar nature of the right obtained by the landlord or landlady under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960)."
"..the benefit by way of a decree which a predecessor-in- interest has secured being an incorporeal right and that right having vested in a landlord or landlady in that a decree for eviction has already been passed cannot be divested by his or her death, as it could pass on to the heirs as it becomes part and parcel of the property owned by the landlord or landlady. Thus viewed, the respondents before me are entitled in law and in equity to take advantage of the favorable decision obtained by their mother before the Rent Controller and which gained acceptance before the appellate authority as well. There cannot be a divesting of such right by reason of the death of the father during the course of the revision proceedings. The right to process an order of eviction is already in the stream of execution and it cannot be stemmed by reason of the death of the father at the revision stage. The respondents do assert that they want to continue the business which their father wanted to commence and this aspect cannot therefore be lightly brushed aside factually.
The concurrent finding of fact that the premises is required bona fide for purposes of business of the father cannot be interfered with or set aside by this Court."
In this case, the landlady, who died during the pendency of the appeal, has not sought the demised premises for carrying on hotel business, which her sons are said to be carrying on at Delhi. Of- course, it was stated in the evidence at the time of enquiry that her son residing at Delhi is having an idea of starting hotel business at Madras, but not in the demised premises. Having an idea to start business in Madras, but not in the demised premises, cannot be taken note of to hold that the respondents have established that the requirement of the said premises is bona fide for the purpose of starting business, which has also not been pleaded in the petition. On the other hand, in the decision referred to above would disclose that the sons wanted to carry on the business, which their father intended to carry on in the premises, which was the subject matter of the eviction petition. Therefore, the principle laid down by the learned single Judge of this Court in the abovesaid decision will have no application to the facts and circumstances of this case.
15. In Shantilal Thakordas and others v. Chimanlal Maganlal Telwalia, , the Hon'ble Apex Court was pleased to hold that if the requirement of the plaintiff is also of the heirs, the suit cannot be dismissed on the ground of death of the plaintiff and if the premises were required for the partnership firm of the plaintiff and, on his death, if one of the sons did not join the firm the suit is liable to be dismissed. Following the said decision of the Apex Court, a learned single Judge of this Court, in K. Ramadoss v. S. Vaidyanathasamy and another, 1996 (2) LW 320, has held that in view of the statutory provision under Section 27 of the Tamil Nadu Buildings (Lease and Rent Control) Act, proceedings already taken could be continued by the legal representatives, and the wordings are also so clear that the benefit of the eviction also goes to the legal representative. It has also been held by the learned single Judge that the benefit of eviction ensures to the benefit of the estate and the requirement of the landlord continues even after his death. In that case, the landlord was carrying on business in hotel, associated with his son, who was arrayed as second respondent in the eviction proceedings. The requirement of the premises by the landlord for carrying on hotel business was found to be bona fide and, therefore, eviction was ordered in the said case for carrying on business in hotel. In the abovesaid circumstances, the son who was arrayed as second respondent continued the proceedings of eviction sought against the tenant and the learned single Judge of this Court has held as mentioned above, following the decision of the Hon'ble Apex Court. In this case, as already pointed out, the landlady has not filed the petition for eviction of the revision petitioner from the demised premises for her own use and occupation and also for the occupation of her heirs, as seen from the pleadings in the petition. In view of the said position, the decision referred to above can have no application to decide the issue in the present case.
16. It is also relevant to point out that the demised premises has been leased out for non residential purposes and the landlady has sought for eviction of the revision petitioner for residential purposes. The law is well settled that eviction can be sought against the tenant by the landlord of a non-residential premises for non-residential purposes alone and not for residential purposes, subject to Section 21 of the Act.
17. In view of the foregoing reasons, this Court finds some force in the argument advanced by the learned Senior Counsel Mr.T.R. Mani, appearing for the revision petitioner, that nothing survives in the requirement of the demised premises by the landlady for her own use and occupation, on her death, and that therefore the judgment and decree passed by the learned Rent Control Appellate Authority, confirming the order of eviction made by the learned Rent Controller, have to be set aside. Agreeing with the said submission made by the learned Senior Counsel for the revision petitioner, this Court holds that the judgment and decree passed by the learned Rent Control Appellate Authority confirming the order of eviction made by the learned Rent Controller cannot be sustained.
18. In fine, the civil revision petition is allowed and the judgment and decree of the learned Rent Control Appellate Authority are set aside. Consequently, the order of eviction passed by the learned Rent Controller is also set aside. In the circumstances of the case, both the parties are directed to bear their own costs.