Madras High Court
Thandapany vs V.Viswanath on 27 July, 2012
Equivalent citations: AIR 2013 (NOC) 110 (MAD.)
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.07.2012 CORAM : THE HONBLE MR. JUSTICE S.TAMILVANAN C.R.P (NPD) No.312 of 2008 and M.P.Nos.1 and 2 of 2008 Thandapany .... Petitioner vs. V.Viswanath .... Respondent Civil Revision Petition filed against the Judgment and Decree, dated 27.03.2007 passed in R.C.A.No.11 of 2004 on the file of the Rent Control Appellate Authority / II Additional District Judge, Puducherry, confirming the order and decretal order, dated 29.01.2004 passed in H.R.C.O.P.No.24 of 2001 on the file of the Rent Controller / District Munsif, Puducherry. For Petitioner : Mr.T.P.Manoharan For Respondent : Mr.V.Raghavachari for M/s. G.R.Swaminathan ORDER
This Civil Revision has been preferred against the Judgment and Decree, dated 27.03.2007 made in R.C.A.No.11 of 2004 on the file of the Rent Control Appellate Authority / II Additional District Judge, Puducherry, confirming the order and decretal order, dated 29.01.2004 made in H.R.C.O.P.No.24 of 2001 on the file of the Rent Controller / District Munsif, Puducherry.
2. It is seen that H.R.C.O.P.No.24 of 2001 was filed by the respondent herein under Section 10 (3) (c) of the Pondicherry Buildings (Lease and Rent Control) Act (herein after referred to as the Act). The respondent herein has averred in the counter that he has got title to the property under a gift settlement deed, dated 10.12.1998. As the premises was let out to the petitioner / tenant, the respondent / landlord issued legal notice, dated 30.11.2000 to surrender the portion occupied by the petitioner herein to the respondent, on the ground of respondent's bonafide requirement for his own use and occupation. The respondent herein filed the Rent Control Original Petition, seeking an order, directing the revision petitioner / tenant to vacate the demised premises and hand over the same to the respondent herein. The revision petitioner herein filed his counter as respondent in the Rent Control Original Petition.
3. As per the order, dated 29.01.2004, the petition was allowed. In the said order, the learned Rent Controller has stated that though a wrong provision of law was stated in the petitioner, as if it was filed under Section 10 (3) (a) (iii) of the Act, the respondent / landlord is entitled to get the order as prayed for. Aggrieved by which, the tenant preferred Rent Control Appeal in R.C.A.No.11 of 2004 and by the impugned Judgment and Decree, dated 27.03.2007, the order of eviction passed by the Rent Controller was confirmed and Rent Control Appeal was dismissed by the Rent Control Appellate Authority. Aggrieved by which, this revision has been preferred by the petitioner / tenant.
4. Mr.T.P.Manoharan, learned counsel appearing for the petitioner submitted that the respondent / landlord has not established the bonafide requirement of own use and occupation of the landlord for seeking eviction of the respondent / landlord. In the instant case, the plea of respondent / landlord was for additional occupation under Section 10 (3) (c) of the Act, however, he changed his stand by raising a plea for own use and occupation, as contemplated under Section 10 (3) (a) (iii) of the Act. However, the Courts below, without considering the fact that both the grounds are different, decided the R.C.O.P and R.C.A in favour of the respondent / landlord. In support of his contention, the learned counsel appearing for the petitioner relied on the following decisions :
(1) Bachhaj Nahar vs. Nilima Mandal and Ors., AIR 2009 SC 1103 (2) Sivasubramaniam, T and others vs. Kasinath Pujari and others, 2000-1-LW 778 (3) Sankaran, A and another vs. Balasundaram S.K and another, 1994-2-LW 152
5. In Bachhaj Nahar vs. Nilima Mandal and Ors., reported in AIR 2009 SC 1103, the Hon'ble Supreme Court has held as follows :
"9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."
In the aforesaid decision, the Hon'ble Supreme Court has held that the Court should confine its decision to the question raised in pleadings and cannot grant a relief, which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
6. In Sivasubramaniam, T and others vs. Kasinath Pujari and others, reported in 2000-1-LW 778, the Hon'ble Supreme Court has held as follows :
"3... A bare reading of the aforesaid provisions would show that a landlord can seek an order of eviction against a tenant (a) if he requires the premises for his own occupation or for occupation of any member of his family; and (b) the landlord or any member of his family is not occupying a residential building of his own in the city, town or village concerned and an order of eviction against a tenant cannot be passed by the Rent Controller unless he is satisfied that the requirement of the landlord for the premises is bonafide..."
7. In Hameedia Hardware Stores vs. Mohal Lal Sowcar, reported in 1988 (2) SCC 513, the Hon'ble Apex Court has held thus :
"A landlord seeking eviction of a tenant from a non-residential premises under Section 10 (3) (a) (iii) of the Act in order to succeed in his petition should establish that he bonafide requires the premises, in addition to proving the other ingredients referred to therein, since clause (e) of Section 10 (3) is also applicable to a petition filed under sub-clause (iii) of Section 10 (3). The word 'claim' means a demand for something as due or to seek or ask for on the ground of right etc., The word 'claim' in clause (e) of Section 10 (3) of the Act should, therefore be construed as the requirement of the landlord or his deservedness. 'Deserve' means to have a rightful claim or a just claim. In the context of Rent Control law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bonafide a landlord should establish the he deserves to be put in possession of the premises which is in the occupation of the tenant."
It has been made clear by the Hon'ble Apex Court that when landlord desires the premises for own use and occupation, the requirement of law is that the landlord must set out his need for seeking the premises in his petition and also to establish such a need as bonafide requirement. It has been made clear that the need must be bonafide, genuine, honest and conceived in good faith.
8. In Sankaran, A and another vs. Balasundaram S.K and another, reported in 1994-2-LW 152, this Court (THANIKKACHALAM, J), has held that unless the landlord deserves to get possession under S.10 (3) (e) of the Madras Buildings (Lease and Rent Control) Act, eviction under Section 10 (3) (a) (iii) of the Act cannot be ordered. Relying on the decision rendered in Hameediya Hardware Stores vs. Mohanlal Sowcar reported in 1988-2-LW 1 (SC), this Court held that bonafide need for own use and occupation should be pleaded and proved and the need should be genuine for seeking eviction of any tenant.
9. In Hameediya Hardware Stores vs. Mohanlal Sowcar reported in 1988-2-LW 1 (SC), the Supreme Court has held that it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should have bonafide need for his own use and occupation or for occupation by any of the members of his family as held by the Apex Court in the decisions reported in AIR 1974 SC 1059 and AIR 1974 SC 1596. Hence, it has been made clear that the need of the landlord should be genuine and proved, that is the object of enacting clause (e) of S.10 (3) of the Act.
10. Mr.T.P.Manoharan, learned counsel appearing for the revision petitioner contended that merely producing a document would not be sufficient to raise the claim, unless the jural relationship of landlord and tenant is admitted by the tenant or established by the person claiming right as landlord. In support of his contention, the learned counsel relied on the decision in Ahmedabad New Textile Mills vs. Rajubhai Dalchandbhai reported in AIR 1999 Gujarat 148, wherein the Gujarat High Court has held that in order to admit a document in evidence, the document must be proved, as contemplated under the provisions of Evidence Act or on the admission made by the other side. Therefore, mere production of the document or marking of the same would not be construed as proof for the entire averments of the document. It is a settled proposition of law that merely showing any document to witness during cross-examination would not amount to admission of all the averments of document. When a document is shown to a witness, if the witness admits his signature therein, the same could be marked. However, it would open for the petitioner to raise an objection at the time of marking the document before the Court below. The document in question marked before the Court below, being a copy, the objection raised by the other side shall be considered by the Court, as per Evidence Act. Whether the witness is a party to the document, attestor or identifying witness of a signatory is also an important aspect for consideration, as per Evidence Act.
11. The Rent Control Original Petition has been filed under Section 10 (3) (c) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969. According to the revision petitioner, the respondent has not filed the Rent Control Original Petition on bonafide requirement for personal occupation of the premises for his own business purposes. Even in the counter, the petitioner as respondent in the Rent Control Original Petition has stated that the respondent had no intention to start any business in the demised premises. Earlier his father filed a petition to evict the respondent, however, that could not be possible. Subsequently, his son, the respondent herein filed the petition to evict the petitioner herein by hook or crook. As per Section 10 (3) (c) of Pondicherry Buildings (Lease and Rent Control) Act, the Court has to consider whether the reason assigned by the landlord is for his bonafide requirement or otherwise.
12. The Hon'ble Supreme Court in D.V.V.G. Satyanarayana vs. S.V.Raghavaiah reported in AIR 1987 SC 406 has held that Section 10 (3) (a) (iii) of A.P.Buildings (Lease, Rent and Eviction) Control Act (15 of 1960), the Hon'ble Apex Court has held that all the ingredients of sub-section 3 (a) (iii) of Section 10 have not been pleaded in the petition for eviction. The respondents have pleaded for their bonafide requirement of the disputed shop portion for the purpose of commencing a business therein. There is no pleading that the respondents are not occupying any other non-residential building in the city, town or village concerned either it belonging to them or to the possession of which they are entitled under the Act, on the said facts and circumstances, the Hon'ble Supreme Court, confirmed the order of revision passed by the Court below and dismissed the appeal.
13. In Ruth Maragaret Gonsalves vs. K.T.H Presses by its Proprietor, Kumar, reported in 100 LW 258, this Court (M.N.Chandurkar, C.J), held that mere dismissal of an earlier petition for default cannot amount to a subsequent petition being considered as not bonafide. Here also the petitioner has stated that the earlier petition filed by the respondent herein was dismissed. Based on the dismissal of the earlier petition, it cannot be said that the R.C.O.P filed by the respondent relating to this revision could not be maintainable, as the same would not be construed as resjudicata.
14. This Court in Janardanam, S.V vs. D.Kivraj Sowkar, reported in 2002 (2) CTC 415, has held that in a petition filed under Section 10 (3) (a) (i) (a) (iii), the Court has to consider whether the evidence adduced discloses bonafide requirement of the landlord and accordingly, order of eviction was held valid and the scope of Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act under the revisional jurisdiction is also held to be limited, based on the decision rendered by the Hon'ble Supreme Court in Sarala Ahuja vs. United India Insurance Company Ltd., reported in 1998 (3) CTC 679.
15. In Sivakumar, T vs. K.Prabhakaran reported in 2004 (5) CTC 675, this Court (S.Sardar Zackaria Hussain, J), has held as follows :
"7.It is not in dispute that the landlord is the owner of the building, viz, the petition shop of about 100 square feet, which is occupied by the revision petitioner as tenant under him. The landlord also owns adjacent shops of about 200 square feet. Since, according to the landlord, the petition shop measuring to an extent of 100 square feet is sufficient for stating computer centre by his eldest son, P.W.2, the eviction of the tenant is sought only from the petition shop. It is well settled that the tenant cannot dictate the landlord with regard to the requirement of the landlord for own use and occupation..."
16. It is well settled that a tenant cannot dictate terms to the landlord as to which portion of the premises would be suitable for the requirement of the landlord's own use and occupation. If it is established that the requirement is bonafide, the Court has to pass an order of eviction in favour of the landlord.
17. In the instant case, considering the supporting documents, which are been marked as Exs.P.1 to P.6 and also the other evidence, the Court below has held that the bonafide requirement has been established by the respondent / landlord and on the circumstances, the Court cannot take a view that the respondent / landlord has any malafide intention to evict the petitioner / tenant, since 2001. The earlier eviction proceeding initiated by the respondent's father is no way a bar for the respondent / landlord in maintaining the petition, seeking eviction, based on the cause of action raised in the Rent Control Original Petition.
18. On the aforesaid facts and circumstances, I am of the view that there is no error or infirmity or material irregularity in the impugned Judgment and Decree passed by the Court below, so as to warrant any interference by this Court.
19. In the result, confirming the Judgment and Decree passed by the Court below, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petitions are closed. However, considering the fact that the RCOP premises is used for commercial purpose, as non-residential premises, two months time from the date of receipt of a copy of this order is granted to the petitioner / tenant to vacate and hand over the premises to the respondents. However, there is no order as to costs.
The matter has been posted today for "being spoken to".
2. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
3. This Court by order dated 27.07.2012, directed the petitioner/tenant to vacate and hand over the premises to the respondent within a period of two months from the date of receipt of the copy of the order.
4. Learned counsel appearing for the petitioner/tenant has filed an undertaking affidavit dated 29.07.2012, stating that the petitioner is a senior citizen and the petitioner had raised valid defence that he is ready and willing to vacate the premises, provided, one year time is granted, since he is running his business and also depending on the same for his livelihood.
5. Learned counsel appearing for the respondent submitted that one year time is a longer period, since the HRCOP. was filed in the year 2001, nearly 11 years back.
6. Having considered the submissions made by both the learned counsel and also the undertaking affidavit filed by the petitioner, I find it just and reasonable to grant six months time to the petitioner/ tenant to vacate and hand over the premises. Accordingly, six months time is granted to the petitioner/tenant to vacate and hand over the premises from the date of this order.
tsvn / vga To
1. The Rent Control Appellate Authority / II Additional District Judge, Puducherry
2. The Rent Controller / District Munsif Puducherry