Madras High Court
Mrs. Sakunthala And Ors. vs Mrs. A. Devi on 9 October, 1998
Equivalent citations: (1999)1MLJ101
Author: V. Kanagaraj
Bench: V. Kanagaraj
JUDGMENT V. Kanagaraj, J.
1. The above civil revision petition is directed against the fair and decretal order dated 10.12.1997 made in R.C.A. No. 183 of 1996 by the Rent Control Appellate Authority and the VIII Judge, Small Causes Court, Madras thereby confirming the fair and decretal order dated 8.8.1995 made in R.C.O.P. No. 1384 of 1992 by the Rent Controller and XIII Judge, Small Causes Court, Madras, in ordering the eviction of the revision petitioners herein from the premises concerned on an application filed by the respondent herein under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
2. The contents of the petition filed by the landlady under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) in the R.C.O.P. No. 1384 of 1992 are that, the petition mentioned properties and some other properties were originally belonging to her mother's father, one Chidambaram Pillai and the said 4 properties fell to the share of her mother Dakshayini Ammal; that her three sisters and herself had a partition of the said properties among themselves and the premises located at Vadamalai Pillai Street, Kosapet, Madras, the petition schedule property herein fell to the share of the petitioner thus, herself becoming the absolute owner of the same; that the first, second and third revision petitions are the tenants of different portions of the petitions schedule property respectively paying a rent of Rs. 120, Rs. 120 and Rs. 210 besides having separate and common facilities and the rents are to be paid in every English calendar month.
3. The further averments of the petition filed by the landlord/respondent herein before the Rent Controller are that, she herself is an occupant of a landed building at 45, Kandaswamy Koil Street, Perambur Barracks, Madras-12, and has taken up her residence along with her sister R. Banumathi which fell to the share of her sister in the aforementioned partition; that for herself, she does not own any other property in the city of Madras; that herself, her husband and two daughters were carrying on their life at her sister's residence with great difficulties and inconvenience and without any comfort; that unless in the above circumstances, the revision petitioners/tenants are vacated, she would be subjected to still greater hardships in the time to come and would pray the Rent Controller for eviction of the revision petitioners/tenants.
4. In the counter filed by the respondents/petitioners, they would state that petitioner is not the landlady; that they were not in the habit of paying any rent to the petitioner; that they have been paying the rent only to her mother Dakshayini Ammal every month and the said rents used to be received by her that they were only tenants under Dakshayini Ammal and not under the petitioner/ respondent and there is no relationship of landlord-tenant between themselves and the petitioner; that the averment that the petition is residing in her sister's house is false and incorrect and is one intended for the purpose of eviction of the lawful tenants; that the respondent/ petitioner is already in occupation of her own house and the petition is not on merit and has been filed on mala fide intentions to evict these revision petitioners some how or other, and would ultimately pray to dismiss the eviction petition with costs.
5. In consideration of the facts and circumstances of the case as pleaded by parties and on further consideration of the legal position, the Rent Controller appreciating the evidence placed on record in his own way ultimately arrived at the conclusion to allow the application filed by the respondent herein, testifying the validity of which the appellants herein have preferred an appeal before the Rent Control Appellate Authority and VIII Judge, Small Causes Court, Madras, in R.C.A. No. 183 of 1996 and the said court also confirming the fair and decretal order passed by the Rent Controller, ordering the eviction of the tenant therein thus dismissing the appeal preferred by the present revision petitioners. Aggrieved and challenging the fair and decretal order as passed by the Rent Control Appellate Authority, the tenants/ appellants have come forward to prefer the above revision petition.
6. During arguments, the learned Counsel appearing for the revision petitioners/ tenants would contend that the application filed before the Rent Controller was made under Section 10(3)(a)(i) of the Act i.e., requiring the premises for owner's occupation; that the Order passed by the Appellate Authority is non est in law on ground that the appellate authority did not frame the points as emphasized under Order 41, Rule 31, C.P.C. and would cite a judgment reported in K.M.M. Kadar Hussainv. O.M.R. Selvaraj (1997)1 C.T.C. 559, which is a decision of the Division Bench wherein it has been held that, We have gone through the judgment of the learned single Judge. We are of the view that the judgment is defective, in that the learned Judge has not followed the provisions under Order 41, Rule 31, C.P.C. As rightly pointed out by the learned Senior Counsel for the appellant, it is also incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the court and of the parties on the specific and rival contentions, which arise for decision. One of us (AR. Lakshmanan, J.) sitting single, in Kannammal v. Kuppanna Gounder , following a Division Bench of this Court in Visalakshi Ammal v. Dhanalakshmi Ammal (1989)2LW.414and for the reasons stated in the order, has set aside the judgment of the First Additional District Judge, Coimbatore and remitted back the matter to the said court, to dispose of the appeal afresh on merits and in accordance with law and after affording opportunity to both the parties, within three months from the date of receipt of copy of the judgment.
A full reading of the above judgment reveals that the above proposition has been arrived at by the Division Bench on a letters patent appeal preferred against the judgment of the single Judge of this Court, on appeal confirming the judgment and decree of the Subordinate Judge, Erode, in a suit and hence this judgment cannot be directly applied to a case arising out of rent control proceedings.
7. The learned Counsel would continue to argue that the relationship of the landlord and the tenant has been denied in this case by the tenants under Section 10 of the Act for eviction of the tenants, that if the relationship of landlord and tenants is denied, issue must be framed to that effect and decided and without deciding the said issue as a preliminary issue, deciding the other issues, is irregular and both the courts below have committed serious errors in not framing the issues and deciding the subject matter accordingly.
8. Resuming the arguments for the learned Counsel for the tenants would further contend that the lower courts have not analysed the defence so as to arrive at the conclusion, framing the points for determination; that under Section 2(9), C.P.C. the term "judgment" means the statement given by the Judge of the grounds of a decree or order; that under Section 4(1), C.P.C. In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force', and under Section 4(2), C.P.C. that, 'without prejudice to the generality of the proposition contained in Sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force'; that under Section 5, C.P.C. speaks of the application of the Code to revenue courts.
9. Further, the learned Counsel would cite the Rent Control Rule 28(7) which contemplates how the Rent Controller or the appellate authority shall record the evidence of witnesses, how the documentary evidence shall be considered and how the decision shall be given in accordance with justice, equity and good conscience and would thereby indicate the procedure to be a summary procedure and in the absence of any party summoned to attend, the dispute may be decided exparte. The learned Counsel would cite a judgment reported in Raju v. Mohamadabi (1993)2M.L.J. 438: (1993)2LW. 171, wherein it is held that, In the absence of any specific provision excluding the application of Section 5 of the Limitation Act and in view of the provisions contained in Sections 3 and 5 of the Limitation Act, it shall have to be held that the provisions of Section 5 of the Limitation Act are attracted to an application filed under the Act for setting aside an exparte order of eviction passed by the Rent Controller. Consequently, it follows that the learned District Judge is not right in holding that the Rent Controller is not justified in applying the provisions of Section 5 of the Limitation Act.
10. The other Judgment cited by the learned Counsel for the revision petitioners is one reported in Ganapathy Ammal v. Chandaresan (1994)2 L.W. 622. wherein it is held that, The order of the C.R.P. cannot be said to be one passed, without jurisdiction. The C.R.P. was preferred against the order of the lower court allowing an application for appointing a Commissioner and it was maintainable in rent control proceedings.
Yet another Judgment cited by the learned Counsel for the revision petitioners is one reported in Annamalai and Anr. v. The Official Receiver, Thiruvannamalai and Anr. , wherein two questions having been considered, the first one, in a petition filed against tenant for eviction. Order passed for impleading Official Receiver as a party to eviction proceedings. The revision petition is maintainable since Rent Controller or appellate authority is a Court Subordinate to High Court and not persona designata. The second question is whether in the process of the above impleadment of the Official Receiver, can a Rent Controller decide title to the property and whether the presence of Official Receiver is not necessary to decide whether denial of title is bona fide or not. Order impleading Official Receiver cannot be sustained since Rent Controller cannot adjudicate effectively and completely, claims for title to property.
11. In reply, the learned Counsel appearing for the respondent/ landlord would contend that the petition has been filed under Section 10 of the Act which is a self-contained code and only the provisions of this Act has to be strictly followed and not the general provisions of the Civil Procedure Code. Factually, it is an admitted case on the part of the tenants that the mother of the landlady is collecting the rent, but they would attribute the reason that the mother receives the rent as the landlady by herself and not on behalf of her daughter who is the landlady in the case; that the trial court and the appellate authority have gone into the issues elaborately and have ultimately arrived at the conclusion to evict the tenants on bona fide ground of owner's occupation; that the respondents witness No. 1 categorically admits in the cross-examination that from the date of coming into existence of Ex.B-1 who was paying the rent who was admitting the rent and whether Dakshayini Ammal was receiving the rent on behalf of the landlord. He would further cite from the deposition of R.W.3 that it is only Dakshayini Ammal who is receiving the rent on behalf of the landlord. The learned Counsel would point out that in spite of the said Dakshayini Ammal, mother of the landlord, having refused to receive the rent herself, the tenants are sending the rents only in favour of Dakshayini Ammal.
12. The learned Counsel would draw the attention of the court that Section 2(6), wherein the term "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."
13. The further contention of the learned Counsel is that the moment R. W. 1 admits that the rents are collected by Dakshayini Ammal on her behalf, then there is no question of going into the issue regarding whether there is an jural relationship between the landlady and the tenants that this witness himself says that he know a about the partition; that R.W.2 is son of second revision petitioner; that he did not file any independent counter, but adopted the counter jointly filed by R-1 and R-3. The learned Counsel would recite from the evidence of R.W.2 that, At this juncture, the learned Counsel for the landlord would stress that the very next day of the registration of the partition deed, the landlord informed the fact of herself having become the landlord, in person. To consummate this fact, he would recite from the evidence of R.W. 1 which runs as follows:
14. The learned Counsel for the landlord would further contend that the landlord is residing in a place which has been allotted to her sister Banumathi as seen in Ex.P-1 under Schedule 'B'. That, though R.W.3, the brother of the third respondent/tenant in his counter would say that the only intention of the petitioner/landlord is to evict them in order to lease the property for higher rent. In his evidence, he would admit in the following terms;
meaning thereby "that till date whether Devi or Dakshayini have not asked for higher rent; that for 50 years we are in occupation of the building and hence we cannot vacate; that it is only Dakshayini who is receiving the rent on behalf of the petitioner."
In the above terms, the tenant himself has admitted the knowledge of the partition and the landlord informing them about her having become the absolute owner of the property and also admitting that the landlord herself is residing along with her sister. Further quoting from the evidence of the landlord that herself, her husband and her children are all residing in one room at her sister's house, the learned Counsel would contend that these sufferings have been explained and these facts have not at all been controverted and would ultimately say that on the part of the landlord, she has proved all the ingredients that are required under Section 10 of the Act and in recognition of the same, the lower courts after going through the facts and circumstances of the entire case and the evidence placed on record, have ultimately ordered eviction of the tenants; that even in the counter affidavit, the question of not framing the issues or points have not been urged, but as the first time only before this court, such allegations are brought forth and would cite a judgment reported in Vijayan v. Katnalakshi Amma (1995)1 M.L.J. 16 under Section 11 of the Kerala Reforms Act, it is held that, The tenant is expected to raise all the pleas available under the statute at the relevant time. It is sheer abuse of the process of the court to raise at each successive stage different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. It would be fair and just that the parties raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time. Thereby it must be deemed that they are waived." "Accordingly, we hold that the High Court is right in rejecting the claim of the appellant and the appeal is accordingly dismissed but without costs.
15. But for this point, the learned Counsel for the revision petitioners would reply that questions of law need not be pleaded; admissions are there which are sufficient to prove to the effect that it is the mother, who is receiving the rents and not the respondent/landlord; that the said mother has not been examined; that Order 16, Rule 21 after 1977 got amended to the effect that 'where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable, and would ultimately end up saying that because of his non-examination, the evidence of his witnesses cannot be thrown to the dustbin.
16. From the above arguments and the evidence placed on record by the parties concerned before the lower court by the examination of the landlord herself as P.W. 1 and by the examination of R. Ws. 1 to 3, the near relatives of the respondents 1 to 3 and on the part of the petitioner, filing two documents as Exs.P-1 and P-2 namely, Ex.P-1, the copy of the family partition deed dated 9.12.1991 and Ex.P-2, the xerox copy of the Family Card to the effect of the landlord having become the owner of the property as on 9.12.1991 and that she is residing in another's place with the family and on the part of the respondents, filing 11 documents as Exs.R-1 to R-11, all rent receipts and further upon hearing of the arguments of the learned Counsel for the revision petitioners and the respondent herein as well and in further consideration of the fair and decretal orders passed by both the Rent Controller and the Appellate Authority, the sum and substance of the case is that, the petitioners herein are the tenants of the premises bearing door No. 4, Vadamalai Pillai Street, Kosapet, Chennai-7, each occupying one of the portions of the said building and respectively paying a monthly rent of Rs. 120, Rs. 120 and Rs. 210 and regarding the occupation of the said building which continued, on the date of the petitioner becoming the absolute owner of the said premises on 9.12.1991 in the family partition as evidenced by Ex.P-1 and hence there need not be the least doubt entertained either regarding the tenancy of the petitioners in the petition mentioned property, or regarding the ownership of the building by the respondent and the only doubt i.e., raised on the part of the petitioners in their counter affidavit regarding the landlord-tenant relationship stating that such a relationship does not at all exist and that they have not at all recognized the petitioner, as the landlord and that they are paying the rent only to her mother Dakshayini Ammal who is the real landlord and hence at that score itself would try to disown the ownership of the building by the respondent herein Ex.P-1 would clear the doubts regarding the ownership, but the further doubt cast by the revision petitioners that they are not intimated with any notice to the effect of the respondent having become the owner of the premises, would also be sufficiently cleared by the evidence of their own witnesses, R.Ws.2 and 3 as brought forth in the argument of the learned ' counsel for the respondent/ landlord and hence the lower authorities have reason to conclude that the revision petitioners are the tenants under the respondent/ landlord paying the monthly rents to her mother who is collecting on her behalf to their knowledge and that of the respondent landlady.
17. Coming to the next question whether the relevant provisions of the law under which the petition has been filed by the respondent before the Rent Controller and the bona fide personal occupation whether the premises is required is also amply evidenced by her own evidence getting into the box as P.W.1, making it clear that herself, her husband and her children including a grown-up female child who has obtained puberty, are living in one room of the house belonging to her sister, Sakunthala, which fell to her share in the partition held under Ex.P-1 and the same also comes to be established under Ex.P-2, Family Card. Moreover, either the respondent/ landlord taking up her residence with her sister, or that she does not own any other property within the periphery of the city of Madras go unchallenged and non-controverted and from the positive evidence adduced on her part and the circumstances gathered, these facts have to be concluded fully established and at this score also the courts below have not committed any error, so far as in arriving at the conclusion that the respondent/ landlord is residing in one of the rooms of her sister's house and that she does not own any property in the city of Madras.
18. Coming to the third and vital legal point raised on the part of the revision petitioner/tenant i.e., the courts below are supposed to have framed the issues and points thus giving effect to Order 41, Rule 31, C.P.C. and that it is a serious irregularity committed against the legal convictions and under that score itself, the orders passed by both the lower courts become liable to be set aside. For this point, certain judgments as cited supra have also been shown, but not to the effect that all or any of the C.P.C. provisions should be complied with in following the procedures. The judgments cited by the learned Counsel for the revision petitioners only say that wherever it is highly necessary or under the special Act if it is found wanting the provisions of the C.P.C. could be resorted to and there is no compulsion or condition placed on either the Rent Controller or the appellate authority that the provisions of the C.P.C. should be followed observing all those procedures that are contemplated under the C.P.C., even in rent control proceedings. The meaning of those judgments are that, when the court is put under such a tight corner, that it is not able to get rid of a situation without following certain procedures in the circumstances of the case and for such a procedure, if there is no provision contemplated under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, there is nothing wrong in the Presiding Officer resorting to such of the general provisions of the C.P.C. and it is not absolutely incumbent on the part of the rent control authorities especially in view of the fact that they are authorities contemplated under the Rent Control Act and not acting as the court so as to mean that they are bound by the provisions of the C.P.C. So far as the legal position is concerned, the commentaries offered under the heading 'Applicability of Civil Procedure Code', in the book by V.N. Krishnamurthi's The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 revised by Sri P.B. Ramanujam' will serve an eye opener wherein the non-applicability of the C.P.C. as propounded by the different upper forums of law including the Apex Court have been highlighted for instance, an excerpt is produced hereunder:
Applicability of Civil Procedure Code: In Abdul Khader v. A.K. Murthy (1947)2 M.L.J. 482, it was pointed out that the provisions of C.P.C. were not made available to proceedings under the Act in the absence of rules nevertheless the principles of the same should be applied Devichand Moolchand v. Dhanraj Kantilal (1948)1 M.L.J. 276at279. The Act itself does not contain any provision regarding the application of Civil Procedure Code and in fact the provisions of the Act seem to be self-contained in regard to procedure and the Act has gone to the extent of providing for bringing in the legal representatives on record and costs, to mention two instances. If really the Code of Civil Procedure is applicable mutatis mutandis to the procedure under the Act, the provisions are wholly superfluous. On the other hand, they clearly indicate that the Code of Civil Procedure was not intended to be generally applicable to the proceedings under the Act Fernandes v. Ranganayakulu Chetty . Much less does not it follow that the proceeding in which the order of eviction is made is to be regarded as a suit to which the provisions of the Code of Civil Procedure will apply Madhavi Ammal v. Nallammal . The provisions of the Civil Procedure Code do not as such apply to the proceedings under the Act Kanagarathnammal v. Sama Rao (1955)2 M.L.J. 433 at 434. Rent Court is not a Civil Court and the C.P.C. is not applicable to the Rent Court (Seethalakshmi Ammal v. Rajammal (1965)1 M.L.J. 287 and 288. The Rent Controller is not functioning as a civil court and the Civil Procedure Code as such has not been applied to the Controller Chinnakesavulu v. Mansukhlal (1966)1 M.L.J. 300 at 301. The preponderance of judicial opinion is that the Code of Civil Procedure as such will not apply to the proceedings before the authorities constituted under the Madras Buildings (Lease and Rent Control) Act and that O.6, Rule 17 cannot be invoked by them (Muniswami Naidu v. Kasim Khan (1971)2 M.L.J. 379 at 381). The provisions of the Code of Civil Procedure will not apply except to the extent provided by the Act itself, Section 11 is not one of them Dr. N.R. Rao v. Premier Electrical Company 86 L. W. 649 at 651. Admittedly there is no provision in the Act or in the Rules framed under the said Act for any of the provisions of the C.P.C. being made applicable to actions and proceedings taken or instituted under the Act. It is therefore obvious that O.I, Rule 10(2) of the C.P.C. cannot also apply to the proceeding under the Act Aruppukottai D.M.K. v. Periaswami 1974 T.L.N.J. 247and 248. The special procedure provided by the Act displaces the requirement of the procedure of eviction under Transfer of Property Act by any ordinary civil court Gupta & Company v. Venkatesan (1975)1 S.C.C. 46 and 48. Rules framed under the Act provide for the procedure to be followed by the Rent Controller and the Appellate Authority and they deal with certain aspects of procedure to be followed and it is quite obvious that the provisions of the C.P.C. cannot be invoked dealing with the petition under the Act Krishnamoorthy v. Jagat Textiles (1981)1 M.L.J. 394 at 399. Generally therefore there is an exclusion of the applicability of the provisions of C.P.C. and where it is either made applicable or even intended to apply, provisions is made to that effect Devarajan v. Muniratnam 94 L.W. 435 at 437. Though generally Controllers have been persons belonging to the judicial service they are hot courts and the proceedings before them will not be governed by the provisions of C.P.C. Rayala Corporation v. Syed Bawker & Company (1957)1 M.L.J. 241 at 242. Merely because in statute provisions of C.P.C. are adopted, it does not mean that in spite of the specific exclusion made regarding appeals and revision there, the procedure law which has been invoked would override a specific provisions of the Act Purushottam Chettiar v. Pushkraj Jain 1980 T.L.N.J.155 at 157.
20. From the propositions of law laid down by this Court, the other courts and the Apex Court from time to time, what comes to be established is that the Tamil Nadu Buildings (Lease and Rent * Control) Act, 1960 is a self-contained Code by itself and that the Rent Controller or the appellate authority cannot be considered as courts and the proceedings before them are not governed by the provisions of Civil Procedure Code. While such being the position of law, the contentions of the learned Counsel for the revision petitioners to the effect that certain provisions of the Civil Procedure Code have not been followed while dealing with the above matters either by the Rent Controller or by the Appellate Authority are baseless and unfounded either on facts or in law. For the above discussions held either on facts or in law, the revision petitioners do not seem to have any axe to grind. The courts below, on proper appreciation of the evidence placed on record and following the required procedures as contemplated under the Act and in application of the correct legal position, have rightly arrived at the conclusion to order the eviction of the revision petitioners/tenants and there is no patent error of law nor perversity in approach, so far as the decisions arrived at by both the courts below are concerned and hence calling for any interference by this Court into the well considered and well merited orders passed by the lower court is unwarranted.
21. In result, the above civil revision petition fails and the same is dismissed. The fair and decretal order dated 10.12.1977 made in R.C.A. No. 183 of 1996 by the Rent Control Appellate Authority and the VIII Judge, Small Causes Court, Madras, thereby confirming the fair and decretal order dated 8.8.1995 made in R.C.O.P. No. 1384 of 1992 by the Rent Controller and XIII Judge, Small Causes Court, Madras, ordering the eviction of the revision petitioners are hereby confirmed. Consequently C.M.P.Nos.9879 of 1998 and 5348 of 1998 are also dismissed. The revision petitioners are hereby directed to vacate the respective premises and hand over vacant possession with the respondent/ landlady within six months from today. However, in the circumstances of the case, there shall be no order as to costs.