Madras High Court
T.Varadharajan vs T.Kalyani on 12 February, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 12.02.2015 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.R.P (NPD)No.3481 of 2013 and M.P.No.1 of 2013 T.Varadharajan ... Petitioner / Tenant Vs T.Kalyani ... Respondent / Landlady Prayer: Civil Revision Petition is filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1960 against the order and decreetal order passed by the Subordinate Court at Thiruvallur in RCA No.1 of 2012 dated 06.07.2013 and confirmed by the Rent Controller cum District Munsiff Court, Thiruvallur order and decreetal order made in RCOP No.1 of 2008 dated 15.11.2011. For Petitioners : Mr.V.Raghavachari for M/s.K.Senthiklkumar For Respondent : V.Manohar for Caveator O R D E R
This revision arises out of the order passed by Sub Court, Tiruvellore in RCA No.1 of 2012 confirming the order of the District Munsif, Tiruvellore made in RCOP No.1 of 2008.
2. The unsuccessful tenant in the eviction proceedings is the petitioner in this revision. The respondent had initiated eviction proceedings against the petitioner under Section 10 (3) (a) (iii) and 10 (3) ) of Tamil Nadu Buildings Lease and Rent Control Act.
3. The landlord has averred in the eviction petition that the tenant was inducted as per the lease agreement dated 28.02.2012 on a monthly rent of Rs.1500/-. The husband of the landlord Dr.Late A.C.Thiagarajan was a child specialist and he had very good practice in Tiruvellore Town. After his demise in the year 2001, his elder son Dr.Senthilnathan who completed his MBBS studies is looking after the clinic. The patients, especially children, ladies and aged persons are finding it difficult to come to the upstairs portion of the clinic and hence the landlady and her son wanted to shift the clinic to the ground floor. The landlady's younger son who has also completed his MBBS is undergoing practice as house surgeon and he shall complete the training by December 2008. It is further stated that the tenanted premises has entrance from Kondamapuram Street where the patients can come easily by all means and it is very suitable to set up a clinic. There are two shops vacant at the backside of the petition premises but the petition premises alone is facing the road side. Hence, if the petition shop is vacated, it will be easier to set up the clinic when compared to other three shops and there will be a larger space available for setting up the clinic having road side axis.
4. The tenant opposed the eviction petition stating that the landlady's elder son is a Government Doctor and so he is not entitled to have a private clinic; even otherwise, the plinth area in the first floor is vast when compared to the portion under his occupation; further there is no entrance for the petitioner from the main road. The tenant has further alleged that the petition was filed with a malafide intention to evict the tenant.
5. Before the Rent Controller, the parties have adduced both oral and documentary evidence. The Rent Controller found that the requirement of the landlady for additional accommodation is bonafide and ordered eviction under 10(3) ) of the Act while rejecting the ground of own use and occupation. Confirming the finding of the Rent Controller, the Appellate Authority dismissed RCA No.1 of 2012 filed by the tenant. Challenging the concurrent finding, the present revision is filed.
6. Mr.V.Raghavachari, learned counsel for the petitioner submitted that the grounds under Sections 10 (3) (a) (iii) and 10 (3) ) of the Rent Control Act cannot go together; that the landlady cannot prosecute the application filed under both sections and that the elder son is a Government Doctor and the younger son was studying medicine on the date of filing of the eviction petition. Therefore, the requirement of the landlady is not bonafide one. It is further submitted that the consideration for passing orders under Section 10 (3) (a) (3) and 10 (a) ) are totally different, but the Rent Controller has misinterpreted the two provisions and held that the landlady proved her bonafide under Section 10 (3) (a) (iii) and ordered eviction under Section 10 (3) (c). The landlady ought to have applied the Doctrine of Election and should have prosecuted the eviction petition on the ground of additional accommodation.
7. It is further submitted that the findings of both the authorities are perverse and they are liable to set aside by this Court. The learned counsel relied upon judgments of this court in T.S.Sethuraman v. J.Nagalakshmi reported in 1997 (III) CTC 339 and A.Ghosekhan & Others v. The Rent Controller (District Munsif of Coimbatore & Others) reported in 1981 (2) MLJ 388.
8. Per contra, Mr.V.Manohar, learned counsel for the respondent submitted that the Rent Controller has rightly rejected the ground of own use and occupation and ordered eviction on the ground of additional accommodation; that the Rent Controller and the Appellate Authority have independently considered the bonafide requirement of the landlady and on proper appreciation of evidence, recorded finding of facts which cannot be upset by this Court. The learned counsel further submitted that the authorities have considered the comparative hardship of the landlord and the tenant and rightly held that the advantage of the landlord would out way the hardship to the tenant in case of ordering eviction.
9. The learned counsel further submitted that the landlady has satisfied all the ingredients for seeking eviction under Section 10 (3) ) of the Act. RW1, the tenant himself has admitted in his evidence that he owns a building adjacent to the tenanted premises and he could commence his business therein. It is further submitted that quoting of wrong provision will not disentitle the landlady seeking eviction of the petition premises; that the tenant has understood the grounds of eviction and he has also given evidence in support of his case and there was no prejudice caused to the tenant in quoting wrong provisions of law. The learned counsel has relied on the judgments reported in 2007 (2) MLJ 955 [Suresh Kumar Kothari v. Dr.T.Ramachandran], 2007 (3) MLJ 998 [Rasi Silks a firm by its Partner K.Arunachalam and anr. v. T.A.Venakatachalam and ors.] and 2007 (4) CTC 699 [Kothandaraman v. K.Rajammal].
10. There is no dispute with regard to jural relationship of the parties and quantum of rent. The landlady has specifically averred in the eviction petition that her husband Dr.Late A.C.Thiyagarajan was a child specialist who had a very good practice in Tiruvellore Town. After his death during the year 2001, his elder son is practising in the clinic and he is attending the patients at the first floor of the petition premises. It is further averred that the ladies and aged patients do find it difficult to climb to the clinic situated in the first floor. Further, the landlady's younger son is undergoing trainee as house surgeon at the time of filing of the eviction petition in the year 2008. It is now represented that he is also practising along with his elder brother.
11. The landlady, in her evidence has also deposed about the requirement of the petition premises to establish a clinic for her sons. PW1 has further stated that her daughter-in-law Dr.V.S.Yogeswari also wants to practice with her husband and that it would be very convenient and sufficient space for her sons and her daughter-in-law to set up a clinic in the tenanted premises which has entrance from Kondamapuram Street. PW1 has further stated that they want to start a pharmacy with medical lab in her shops and they need the petition premises very urgently otherwise the regular patients coming to their clinic may shift to other doctors, finding difficult to come to upstairs. Ex.P3 is the identity card of Dr.Senthilnathan, Ex.P4 is the medical registration certificate of Dr.Senthilnathan, Ex.P5 is the identity card of Dr.V.S.Yogeswari, Ex.P6 is the medical registration certificate of Dr.V.S.Yogeswari, Ex.P7 is the identity card of Dr.T.Yuvarajan, Ex.P8 is the medical registration certificate of Dr.T.Yuvarajan. Dr.Senthilnathan was examined as PW2. The tenant examined himself as RW1 and his son was examined as RW2.
12. The Rent Controller, on proper appreciation of the oral and documentary evidence, held that the requirement of the landlady is bonafide. RW2 has admitted in his evidence that he has a house on the next street and that he can run his business in that place. The Rent Controller, after considering the evidence, held that the relative hardship of the landlady would outweigh that of the tenant.
13. In 1997 (III) CTC 339 [T.S.Sethuraman v. J.Nagalakshmi] this Court has held as follows -
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.
14. In a decision of this Court in Bengal Trading Co. rep. by its partner, Radhakrishna Rathi v. G.M.Natarajan and 2 others reported in ILR 1991 MHC 21, the landlord who was in possession of a portion of a building filed an eviction petition under Section 10 (3) (a) (iii) of the Act instead of filing the petition under Section 10 (3) ) of the Act. This Court has held that application filed under Section 10 (3) (a) (iii) of the Act is not maintainable.
15. In 2013 (1) MWN (Civil) 622 [C.Susila Devi and others v. S.Govindan], this Court has observed as follows -
31. An eviction sought on the ground of "owners occupation" can not be equated with that of "additional accommodation". Availability of other buildings and suitability of the same for the landlord certainly assume significance and have relevancy for consideration of the claim in the case of the former, while it is not so in the case of latter. At the same time, such availability of alternate accommodation to the tenant certainly, has got relevance for consideration under both the grounds.
16. Now, I would like to consider the judgment relied upon by the learned counsel for the respondent in 2007 (3) MLJ 998 [Rasi Silks v. T.A.Venkatachalam], wherein it is held as follows -
15. It cannot be said that there is lack of pleading and evidence about relative hardship. In any event, merely because lack of pleadings and vague pleadings about relative hardship, it cannot be said that Eviction Petition is not maintainable. By a reading of evidence of parties, it is seen that the parties have understood the case and adduced evidence and the contention of lack of pleadings cannot be countenanced.
22. In consideration of the pleadings and evidence, Appellate Authority rightly found that relative hardship of the landlords would outweigh that of Tenants and upon satisfied of the bonafide requirement, has reversed the finding of Rent Controller and ordered eviction. Eviction cannot be disallowed mainly because Tenants may have to vacate the premises. The Order of Appellate Authority does not suffer from any perversity or illegality, calling for interference, exercising revisional jurisdiction under Section 25 of the Act.
17. In 2007 (2) MLJ 955 [Suresh Kumar Kothari v. Dr.T.Ramachandran], this Court has held as follows -
13. Misquoting of provision Can it be a ground for disallowing Eviction:- Originally, Eviction Petition was filed under Sec.10(3)(a)(iii) of the Act. Tenant has raised objection as to maintainability of Petition filed under Sec.10(3)(a)(iii) of the Act. Later, Eviction Petition was amended as under Sec.10(3)(c) of the Act. The contention as to misquoting of provision has no force. It is well settled that on account of misquoting of provision of law, a party is not disentitled to get relief sought for provided he is otherwise entitled to the same on facts and evidence. Petition was filed for eviction on the ground of Additional Accommodation for putting up ICU adjacent to Operation Theatre. However, the provision was quoted as Sec.10(3)(a)(iii) of the Act. The Tenant has filed Counter Stating that Petition under Sec.10(3)(c) of the Act alone was maintainable. When the parties have understood the case and adduced evidence, the question of lack of pleadings or misquoting of provision cannot be a ground to disallow eviction.
17. Keeping these principles in mind, let us consider whether requirement of landlords is bonafide. In their evidence, P.Ws.1 and 2 have stated that premises is bonafide required for converting it as ICU. In the order of Rent Controller, a passage from "Principles of Critical Care" by Farokh Erach Undwadia has been extracted as to location of ICU. "The ICU should as far as possible be in close relation to the operation theatre and the recovery room. This allows easy transport of critically ill patients from the ICU to the Theatre and vice versa". Admittedly, behind tenanted premises, there is consulting room and then Operation Theatre. Quite naturally, the premises is required to have ICU near the operation theatre. Referring to oral and documentary evidence, courts below have recorded concurrent findings that the requirement of tenanted premises is bonafide for converting into as ICU and concurrent findings of Courts below as to bonafide requirement cannot be interfered with.
19. As noticed earlier, behind tenanted premises, there is consulting room, behind which there is operation theatre. As per Medical Management, ICU as far as possible be in close relation to the Operation Theatre and recovery room. When bonafide requirement is proved, the Landlord is the best Judge of his requirement for residential or business purposes. The Tenant cannot dictate terms as to which portion Landlord should occupy. Landlord is the best Judge and has complete freedom in the matter (vide Ragavendra Kumar ..Vs.. Firm Prem Machinary (A.I.R. 2000 S.C. 534), Venkataramanasamy ..Vs.. S.Sethuraman (2003 (2) M.L.J. 376) and Varadhan ..Vs.. Kannammal and others (2004 (3) C.T.C. 462).
18. In 2012 (4) CTC 481 [ D.Prema Jhansi Rani v. N.Srivijayan] , this Court had an occasion to consider whether the very wrong quoting of the provisions of the law would be fatal to the Rent Control Proceedings initiated by the landlords, wherein it is held as follows -
11. The entire RCOP petition should be read to understand as on what grounds the landlord sought eviction of the tenants. Here, unarguably and unassailably, pellucidly and palpably the landlord has set out in the body of the petition that the tenants committed 'wilful default' in paying the rents and over and above that, he has also set out in paragraph Nos.5, 6 and 8 of the petition that the demised premises is required for his 'additional accommodation', so to say, to accommodate his aged parents, who are living elsewhere in a rented premises.
12. The fact also remains that the tenants contested the RCOP understanding the real purport of the RCOP and in such a case, imaginarily by developing some doubts, the revision petitioners would not be justified in expecting the Court to throw the baby along with bathe water. Accordingly, point No.(i) is decided in favour of the landlord and as against the tenants.
19. In view of the the latest judgment of this Court, I am unable to follow the decision reported in ILR 1991 MHC 21. The other decisions relied on by the learned counsel for the petitioner have no application to the present case. I do not find force in the contention of the learned counsel for the petitioner.
20. In the case on hand, the Appellate Authority, after independently considering the material evidence, confirmed the findings of he Rent Controller. The factual findings recorded by the authorities based on evidence cannot be overturned while exercising the power under section 25 of the Rent Control Act. I do not find any perversity or illegality in the orders impugned in this revision.
21. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
12.02.2015 Index:Yes rgr Note : Issue order copy by 17.03.2015 To
1.The Subordinate Judge, Thiruvallur.
2.The District Munsiff, Thiruvallur.
K.KALYANASUNDARAM,J rgr Order in C.R.P (NPD)No.3481 of 2013 12.02.2015