Madras High Court
L. Savithri vs P. Selvaraj on 27 April, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (P.D.) No. 2787 of 2000
L. Savithri ... Petitioner
-Vs-
P. Selvaraj ... Respondent
Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act XXIII of
1973 and Act 1 of 1980 against the judgment and decree of the Court of
Subordinate Judge, Uthagamandalam, (Rent Control Appellate Authority) dated
31.7.2000 and made in R.C.A. No. 3 of 1999 confirming the order and decretal
order of the Court of District Munsif (Rent Controller), Uthagamandalam, dated
10.6.1999 and made in R.C.O.P.No. 8 9 of 1997.
!For petitioner : Mr.S.K.Rakhunathan
^For respondent : Mr.V.Ravi
:O R D E R
The unsuccessful landlady before the Courts below is the revision petitioner in this Civil Revision Petition. The landlady, who failed in her attempt before the Rent Controller and the Rent Control Appellate Authority in securing eviction of the respondent / tenant from the petition premises bearing Door No. 6, Vannarpet, Garden Road, Uthagamandalam, on the ground of own use and occupation for the purpose of her second son, has filed this Revision Petition.
2. The landlady, as petitioner, filed the Rent Control Original Petition in which it is stated that she is residing along with her unmarried son as well as her other two sons, who were married, along with their respective families, at Door No. 104-A, flower Cottage, Uthagamandalam, that her second son Jagadeesan intends to live separately with his family, for which purpose, the petition premises was required by the petitioner / landlady, that though the respondent / tenant agreed to vacate the petition premises, he is postponing delivery of possession of the premises on some pretext or other, that the lawyer's notice dated 12.11.1997 sent by the petitioner was received by the respondent / tenant on 13.11.1997, that the petitioner / landlady's second son does not own any residential or non-residential building in Uthagamandalam town and that even in respect of the premises, where the petitioner / landlady is residing along with her sons and their respective families, the second son has no share. On these grounds, the petitioner / landlady has filed the Rent Control Original Petition for direction to the respondent to vacate the petition premises.
3. The Rent Control Original Petition was resisted by the tenant as respondent by filing counter wherein he has admitted the tenancy and the monthly rent in respect of the petition premises. It is further stated that the premises where the petitioner / landlady is put up with her sons and their respective families is sufficient for her, that the requirement of the petition premises sought for own use and occupation for the petitioner / landlady's second son Jagadeesan is not bonafide, that even after filing the petition, the petitioner / landlady has rented out two residential premises belonging to her to some third parties on higher rent, that if really the petitioner / landlady is in dire necessity of the petition premises, she would not have let out the said premises and that it was only when he refused to pay the enhanced rent at the rate of 1000/- per month, the petitioner / landlady has filed the Rent Control Original Petition. On these grounds, the respondent / tenant sought for dismissal of the petition.
4. Before the Rent Controller, K.Murthy, the eldest son of the petitioner / landlady was examined as P.W.1 and the second son of the petitioner / landlady, K.Jagadeesan, was examined as P.W.2 and to rebut such evidence, the respondent / tenant examined himself as R.W.1. Exs. A.1 and A.2 were marked as documents on the side of the petitioner / landlady and no document was marked on the side of the respondent / tenant. The Rent Controller, after considering the evidence adduced on either side and the Exhibits marked, dismissed the case of the petitioner / landlady and denied eviction of the respondent / tenant and such order was confirmed by the Rent Control Appellate Authority in the appeal preferred by the petitioner / landlady, which made the landlady to file this Revision Petition.
5. Heard the learned counsel appearing for the revision petitioner / landlady as well as respondent / tenant.
6. The revision petitioner / landlady is in occupation of the premises at Door No. 104-A, flower Cottage, Uthagamandalam situate at Uthagamandalam, along with her unmarried son as well as her other two sons, who are married, along with their respective families. The respondent is in occupation of the petition premises bearing Door No. 6, Vannarpet, Uthagamandalam, as tenant for the past 10 years when he gave evidence. The house in which the landlady is residing along with her family members consists of four rooms out of which only two rooms are bed rooms. The petitioner / landlady has got three sons and her sons P.W.1 and P.W.2 are married. They are also residing with their wives and children, along with their mother and unmarried brother, in the said bangalow. The age of P.W.1 is given as 37 and that of P.W.2 as 33 when they gave evidence in October 1998. It is quite natural that the married sons would opt to live separately along with their respective wives and children for obvious reasons. In that way, P.W.2, the married son of the petitioner / landlady has also opted to live separately along with his wife and children and for that purpose, the petition residential premises is required by the petitioner / landlady.
7. Such requirement sought for by the petitioner / landlady was resisted by the respondent / tenant on the ground that it is malafide since the second son of the petitioner / landlady failed to occupy the premises bearing Door No. 8 situated adjacent to the petition premises, which was rented out to a third party on its falling vacant after the tenant residing therein had vacated the said portion. According to the petitioner / landlady, the premises bearing Door No. 8 is a zinc shed and it is not a house as it measures only 6" X 13". According to the respondent / tenant, R.W.1, the premises bearing Door No. 8 consists of three rooms. He denied that there is no electric connection and toilet facility in the said premises and also denied that there is only one room in that premises. Therefore, according to the tenant, only because he refused to pay the enhanced rent at the rate of Rs.1000/- per month demanded in December 1996, the petitioner / landlady, after causing lawyer's notice Ex.A.1 dated 12.11.1997, has filed the Rent Control Original Petition.
8. The lawyer's notice, Ex.A.1 has not been denied by the respondent / tenant. According to him, the enhanced rent at the rate of Rs.1000 /- was demanded only in December 1996. If that be so, the respondent / tenant could have replied to that notice, but he has not chosen to do so. It is seen that there is an adjacent premises bearing Door NO. 8, which has fallen vacant after the filing of the Rent Control Original Petition. According to P.W.1, that premises is only a zinc shed measuring 6" X 13" and it may not be sufficient for the landlady's son, P.W.2 for occupation of the same with his wife and children. Further, according to P.W.1, that premises consists of only one room and that also without proper facilities. Even assuming that the said premises consists of three rooms with all facilities as stated by R.W.1 in his evidence, it is well settled that the tenant cannot dictate the landlord as to which of the portion the landlord can occupy. According to R.W.1, the petitioner, after receiving notice Ex.A.1, was requested to occupy the premises bearing Door No. 8 and to vacate the petition premises. It is stated in the counter and also in the evidence of R.W.1 that the said premises fell vacant only after filing of the Rent Control Original Petition and it is not stated that it was vacant at the time of Ex.A.1 notice. If it was vacant even at the time when the / tenant received notice Ex.A.1, certainly he could have replied to the petitioner /landlady that her second son, P.W.2, can occupy that premises.
9. The learned counsel for the petitioner / landlady relied on the decision of Supreme Court in AKKANISSERY GOVINDAN NAMBIAR v. KARIYATH RAGHAVAN (1999 - 1 - L.W. 29), wherein it has been held in paragraph 5 as follows:
"Requirement of law is that the building which has been vacated should be of such a character which would meet the requirements of the landlord and not that the building which fell vacant could meet his requirements after reconstruction / renovation, etc."
10. P.W.1 has clearly stated in his evidence that the premises bearing Door No. 8 is only a zinc shed and it consists of only one room, which measures 6" X 13", that too without proper facilities and as such, that premises may not be sufficient for the occupation of the second son of the revision petitioner / landlady, P.W.2, along with his wife and children. The said reason given by P.W.2, who is living with his wife and children, for not having occupied the above said premises is acceptable. Admittedly, P.W.2 is living in his bangalow bearing Door No. 104-A Flower Cottage, Uthagamandalam, with his wife and children, along with his mother, who is the revision petitioner / landlady, as also P.W.1, along with his wife and children, and also with their unmarried brother. Considering the above said facts, it will not be proper to direct P.W.2 to occupy the premises bearing Door No. 8, which, according to P.W.1, is a zinc shed, consists of only one room, without any toilet facilities, measuring 6" X 13", with his wife and children. Such a requirement of the revision petitioner / landlady has not been considered properly by the learned Rent Controller and the learned Control Appellate Authority, in refusing to order eviction of the petition premises. Therefore, the concurrent finding given by the learned Rent Controller and the learned Control Appellate Authority has to be interfered with.
11. As per Section 10(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, if the landlord fails to occupy the building after acquiring possession of the same under Section 10(3) of the Act within one month from the date of obtaining possession have having so occupied and vacates it without reasonable case within six months of such date, it is open to the tenant to approach the Rent Controller for restoration of possession of the said building. Therefore, in case the petition premises is not occupied by the second son of the landlady, P.W.2, after having taken over possession thereof within one month and vacates it, as stated in the said provision, the respondent / tenant can seek restoration of possession. Therefore, it is clear that the requirement of the petition premises for own use and occupation by P.W.2 , the second son of the revision petitioner / landlady, to reside with his wife and children, is bonafide and that the respondent / tenant is to be vacated from the petition premises.
12. In the result, the Civil Revision Petition is allowed with costs, setting aside the order passed by the learned Rent Controller, which was confirmed by the learned Rent Control Appellate Authority. Consequently, C.M.P. No. 3760 of 2004 is closed.
Index :Yes Internet:Yes gri To
1. The Subordinate Judge Uthagamandalam
2. The Principal District Munsif Uthagamandalam
3. The Section Officer V.R. Section High Court, Madras S.SARDAR ZACKRIA HUSSIN, J.
After pronouncement of the order, the learned counsel for the respondent/tenant sought time for eviction. Considering such request, three months time is granted for eviction, on the respondent/tenant filing an undertaking affidavit within ten days from today that he would hand over possession of the petition premises without resorting to execution proceedings.
gri 27-4-2004