Madras High Court
Mr.N.N.Gafoor vs Mr.R.Srikumaran
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
.CRP.No.875 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On: 13.03.2023
Pronounced On: 28.04.2023
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
C.R.P.No.875/2021
1. Mr.N.N.Gafoor
2. Mr.Muneem ... Petitioners/Appellants/Respondents
Vs.
Mr.R.Srikumaran ... Respondent/Respondent/Petitioner
PRAYER: Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, to set aside the Decree and
Judgment dated 08.02.2021 made in RCA.No.19/2019 on the file of the VII
Small Causes Court, Chennai in RCOP.No.195 of 2017 on the file of the
XIV Small Causes Court, Chennai and allow the RCA.No.19/2019 by
reversing the Order dated 01.02.2018 made in RCOP.No.195 of 2017 on the
file of the XIV Small Causes Court, Chennai.
For Petitioners : Mr.V.Ayyadurai
Senior Counsel for
Mr.S.Thanka Sivan
For Respondent : Mr.M.L.Joseph for
Chennai Law Associates
1/32
https://www.mhc.tn.gov.in/judis
.CRP.No.875 of 2021
ORDER
This Civil Revision Petition has been filed to set aside the Decree and Judgment dated 08.02.2021 made in RCA.No.19/2019 on the file of the VII Small Causes Court, Chennai in RCOP.No.195 of 2017 on the file of the XIV Small Causes Court, Chennai and allow the RCA.No.19/2019 by reversing the Order dated 01.02.2018 made in RCOP.No.195 of 2017 on the file of the XIV Small Causes Court, Chennai.
2. The brief facts, which are necessary to decide this Civil Revision Petition, are as follows:-
2.1. Originally RCOP No.195 of 2017 was filed on the ground that the son of the landlord (Respondent in this Petition is the owner, as the property was settled by him in favour of his son). The demised premises measures about 1800 Sq.ft in ground floor. The building is three storey building. The demised premises was sought for owner's occupation on the ground that the Respondent (son of the original owner in whose favour original owner had executed the settlement deed). The Petitioner in R.C.O.P.No.195 of 2017 requires the premises for his business purpose.2/32
https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 The Petitioner in R.C.O.P.No.195 of 2017 is an unemployed graduate having no other properties in the City of Chennai. The tenant as Respondent in RCOP.No.195 of 2017 filed counter contending that the landlord has many properties in Chennai. After filing of the counter, the enquiry was proceeded. In the enquiry, the landlord who is the Petitioner in RCOP.No.195 of 2017 was examined as P.W-1. He was cross-examined by the Counsel for the tenant, who is the Respondent in RCOP.No.195 of 2017. In the cross-examination, P.W-1 had admitted that he has business and also, the family has other properties in Chennai. At this stage, the landlord filed M.P.No.549 of 2017 in RCOP.No.195 of 2017 seeking to amend the Provision of law. The M.P.No.549 of 2017 was resisted by the tenant by filing detailed counter. In the Petition in M.P.No.549 of 2017, enquiry was conducted and after due enquiry, M.P.No.549 of 2017 was allowed. Aggrieved by the same, the tenant filed Rent Control Appeal where the Rent Control Appeal was dismissed and confirming the Order of the learned Rent Controller in M.P.No.549 of 2017 in RCOP.No.195 of 2017. Aggrieved by the same, the tenant filed Civil Revision Petition before this Court in CRP.(PD).No.1512 of 2018. In that Petition, the order of the learned Rent 3/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Controller in allowing the M.P.No.549 of 2017 was confirmed and the Civil Revision Petition was dismissed with costs. Originally, the Petition in RCOP was filed under Section 10(3) (a) (iii) of Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, seeking eviction of the tenant for the purpose of owner's occupation. Subsequently, after evidence was recorded, it was amended, whereby, instead of Section 10(3) (a) (iii) subsequently it was amended for Provision of law alone as Section 10 (3) (c ) of the Act as though it is required for additional accommodation. The tenant has a partnership firm running Restaurant in the ground floor. They had filed objection to the amendment sought for which was negatived at the stage of High Court. As per the amended Provision, the landlord/original landlord's son had sought additional accommodation on the ground to run his business. Without seeking amendment in pleadings of fact, the original Petition seeking amendment of the Provision of law alone was allowed. Civil Revision Petition was dismissed with costs of Rs.10,000/- on 01.11.2018. The RCOP.No.195 of 2017 was allowed ordering for eviction. Against the Order passed by the learned Judge, Small Causes Court, Chennai, the tenant filed RCA.No.19/2019. That was dismissed. Therefore, this Revision 4/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Petition is filed.
3. Mr.Ayya Durai, learned Senior Counsel for Mr.Thanka Sivan, learned Counsel for the Revision Petitioners submitted his arguments. It is the submission of the learned Senior Counsel for the Petitioners that the Revision Petition had been filed by the Respondents in RCOP.No.195 of 2017 on the file of the learned XIV Judge, Court of Small Causes, Chennai. The RCOP.No.195 of 2017 was filed by the landlord as Petitioner seeking eviction of tenant from the demised premises for the purpose of owner's occupation.
4. The learned Senior Counsel further submitted that while considering the Petition under these Provisions, the learned Rent Controller has to weigh the inconvenience caused to the tenant as well as the inconvenience caused to the landlord before ever passing Orders. Here, the learned Judge, Small Causes Court had failed to consider the inconvenience caused to the Revision Petitioner/tenant in the property. It is the case of the Revision Petitioner that the Rent Controller Court ought not to have allowed 5/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 the Rent Control Petition, when there was no specific pleadings regarding the inconvenience caused to the tenant. As per the Tamil Nadu Buildings (Lease and Rent) Control Act, 2010 provides direction given to the tenant. Without considering the inconvenience that may be caused to the tenant, the learned XIV Judge, Small Causes Court, Chennai had allowed the RCOP. Even after amendment Petition, the original pleadings in the RCOP continued and it was not amended. Therefore, the Order passed in RCOP by the learned Rent Controller, XIV Judge, Small Causes Court, Chennai is not as per the intention of the legislature in passing the Tamil Nadu Buildings (Lease and Rent) Control Act, 2010. The learned Counsel for the Revision Petitioner invited the attention of this Court to the typed sets of papers wherein copies of the RCOP, Counter and the Order passed by the learned XIV Judge, Small Causes Court, Chennai found that originally the Petition was filed under Section 10(3) (a) (iii) of the Act in which the Petitioner stated as follows:
“6. The Petitioner submits that he is unemployed at present and intends to do his own business in the tenanted premises for his livelihood.” 6/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021
5. The requirement of Section 10 (3) (a) (iii) of the Act is totally different from the requirement of Section 10 (3) (c) of the Act. Without pleadings any amount of evidence cannot help the tenant.
6. The learned Senior Counsel for the Revision Petitioners also invited the attention of this Court to the Counter, the relevant portion reads as follows:
“11. This Respondent further submits that the Petitioner's claim is not bonafide and the same is motivated with the sole intent of evicting the Respondents. The above Petition is liable to be dismissed for the reason that the Petitioner is already engaged in numerous business activities and the Petitioner and his family who live joint Hindu family owns numerous immovable properties in the City of Chennai.
12. This Respondent further submits that the first Respondent is aged 49 years and the second Respondent is aged 56 years and they have been carrying on the said premises for the past 10 years. The business that is being carried on the said premises is the only source of income for the Respondents. The Respondents have children who are pursuing their studies and remain dependants on the Respondents.
In view of the prompt and standard business practices that had been followed by the Respondents in their at the Petition schedule premises, for the past several years the Respondents have gained good name, goodwill in their vicinity. That apart, the Respondents have also employed more than fifteen workmen in their business. Those workmen and their employees totally depend upon the income of the income that they generate from the business in the Suit premises. On the other hand, the Petitioner had joint Hindu family have numerous properties in and around Chennai, are earning huge rental income and income from other business activities. The inconvenience, 7/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 hardship that the Respondents will be put to if the Respondents are made to vacate the Petition schedule premises, will outweigh the inconvenience that the Petitioner will suffer if the Respondents are not vacated. The Respondents further submit that there is absolutely no merit in the above Petition, the Petition is liable to be dismissed with cost.” Here is a case that the landlord even after amendment had not sought eviction with the amended prayer.
7. The learned Senior Counsel for the Revision Petitioners invited the attention of this Court to the proof affidavit filed by the Respondent, the relevant portion is extracted hereunder:
“4. I submit that I am unemployed at present and intends to do my own business in the tenanted premises for his livelihood. I submit that I have no other property in the City of Chennai for doing the business I intend to do.”
8. As per the records, the Respondent is an unemployed graduate.
9. Also, the learned Senior Counsel invited the attention of this Court to the cross-examination of P.W-1. The relevant portion is extracted hereunder:
“jw;nghJ vd;dplk; ePjpkd;wj;jpy; fhl;lg;gLk; g[ifg;glk; jhd;8/32
https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 vjpu;kDjhuu; kDfl;olj;jpy; bra;J tUk; bjhHpypd; g[ifg;gl';fs; vd;W brhd;dhy; rup jhd;/ mJ v/j/rh/M/6 tupir MFk;/ vjpu;kDjhuu;fs; bra;J tUk; bjhHpYf;F njitahd cs; my';fhu ntiyg;ghLfis vjpu;kDjhuu;fns bra;J bfhz;lhu;fs; vd;W brhd;dhy; Muk;gj;jpnyna bra;J bfhz;lhu;fs;/ v/j/rh/M/6y; fz;Ls;s my';fhu ntiyg;ghLfs; thof;ifahsu;fis ftUtjw;fhft[k; tpahghuj;jpd; njitia fUj;jpy; bfhz;Lk; rkPgkhf bra;ag;gl;lJ vd;W brhd;dhy; mJ FwpjJ ; vdf;F bjupahJ/ brd;idapy; kjpgg; [kpff; gy brhj;Jfs; vdf;F cs;sJ vd;whYk;. kDfl;olk; vdf;F cz;ikapnyna njitg;gltpyi ; y vd;whYk; njitg;gLtjhf bgha;ahf rhl;rpak; mspff; pnwd; vd;whYk; rupay;y/ cz;ikapnyna vdf;F kDf;fl;olk; njitg;gl;oUe;jhy; ,e;j tHf;F jhf;fy; bra;j gpwF fhypahf ,Ue;j kJghd Tlj;jpy; vdJ bjhHpiy Muk;gpj;J ,Ug;ngd; vd;whYk; mt;thW Muk;gpf;fhky; kDf;fl;olk; njitg;gLtjhf bgha;ahf rhl;rpak; mspff; pnwd; vd;W brhd;dhy; rupay;y/ kJghdTlk; cs;s mojsj;jpy; vdJ bjhHpiy Muk;gpf;f ,ayhJ/ ehd; th';fpa fldpy; vdJ rnfhjuUf;F ehd; bfhLj;jjhf Twk; bjhifahdJ vdJ bgw;nwhu;fs; brhj;Jfis brl;oy;bkz;l; bra;j nghJ Vw;gl;l Vw;wjhH;t[fis rup bra;tjw;fhf bfhLj;njd; vd;why; rupjhd;/ vdJ bgw;nwhu; mtu;fsJ bgaupy; cs;s brhj;Jfis vdf;Fk; vdJ rnfhjuUf;Fk; brl;oy;bkz;l; bra;J bfhLj;jhu; vd;W brhd;dhy; rupjhd;/ kDfl;olk; ,e;j kD mDkjpf;fglhj gl;rj;jpy; vdf;Fk; Vw;gLk; ,Hg;gpid tpl ,e;j kDtpid mDkjpfF ; k; gl;rj;jpy; vjpu;kDjhuUf;F Vw;gLk; ,Hg;ghdJ mjpfkhf ,Uf;Fk; vd;W brhd;dhy; rupay;y/ kDthdJ js;Sgo bra;ag;gl ntz;Lk; vd;W brhd;dhy; rupay;y/”
10. It is contradictory to the claim of the Petitioner in RCOP. Therefore, the case of the Petitioner for owner's occupation is false. Therefore, the Order passed by the learned XIV Judge, Court of Small Causes, Chennai/Rent Controller and confirmed by the learned Rent Control Appellate Authority, is perverse. This Civil Revision Petition is to be 9/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 allowed.
11. The learned Counsel for the Revision Petitioner invited the attention of this Court to the Order passed by the learned XIV Judge, Small Causes Court, Chennai in RCOP.No.195 of 2017, the relevant portion is extracted hereunder:
“….....… In the Petition, the Petitioner claims to be unemployed and wants to start a business. The Petitioner was examined as P.W-1 and he has admitted that he is having a permit room in his name in the basement of the Petition premises building. The P.W-1 also admitted that he is running a boarding cum lodging house in the Petition premises building in the first. Second and third floor of the Petition premises building. The P.W-1 also admitted that there is a boarding lodge in Kolathur Ranga Garden in a rented premises.
The Petitioner is also doing business and the first Respondent also doing business other than the business in the Petition premises building. The entire Petition premises building other than the Petition premises is now under the occupation of the Petitioner except for a few months when the Hon'ble Court has banned liquor outlets in National Highways. By that time it is evident through Ex.R-4 and R-5 that the Petitioner tried to outlet the basement in which the permit room was situated for rent. The Respondents have projected their case that if the Petitioner bonafidely requires any Petition premises for rent, then he could have take the basement floor for his occupation. It is the case of the Petitioner that it is not suitable for his business as it is situated in the basement. The property situated in the basement is different from the property situated in the ground floor and hence the explanation of the Petitioner for opting the Petition premises for his new business appears to be bonafide.
The entire Petition premises is now under the occupation of the 10/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Petitioner except the Petition premises. Now the Petitioner wants to expand his business by setting up his business in the ground floor too. The Counsel for the Respondents also stated that the Petitioner has set up his case without any pleadings for additional accommodation and hence the evidence without pleadings cannot be taken into consideration and the advantage accrued has to be given to the Respondents. This Court has perused the Petition and the evidence let in before this Court and the Petitioner has let in evidence for commencing business in the Petition premises. The evidence available on record shows that the Petitioner is doing business in the entire Petition premises building except the Petition premises. Hence this Court is of the view that the Petitioner has proved is requirement for additional accommodation based on his pleadings and evidence. The first Respondent is also a partner in another business in the restaurant running in the SRM University. The second Respondent has not stepped into the witness box to express his inconvenience and hardship in the event of ordering eviction. The first Respondent who claims to have file the returns copies before this Court. It is the case of the Petitioner that if the Income Tax Returns are filed before this Court, then the multiple business carried by the first Respondent would be come into the picture and also the fact that the first Respondent earning more income from other businesses rather than the business carried in the Petition premises. So this Court is of the view that the hardship caused to the Petitioner would be more in the event of dismissing the Petition rather than the hardship that would be caused to the Respondents in the event of allowing the Petition and hence this Court is of the view that the Petition shall be allowed by giving 3 months time for the Respondents to vacate the Petition premises.” When there are no pleadings and no evidences on the part of the landlord, it will not help the landlord in evicting the tenant.
12. In support of his contention, the learned Senior Counsel for the 11/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Revision Petitioners relied on the following rulings:
(i) 2004 (1) CTC 668 in the case of Kathan Vs. Scaw Manak Chand Shohaji, the relevant portion is extracted hereunder:
“Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10 (3) (a) (iii) – Eviction on the ground of owner's occupation – Requirement of landlord for his own occupation – Mere desire is not equivalent to requirement – Requirement implies greater urgency and need – Landlord has to prove that he has no other premises in his occupation in same City, Town or Village – Landlord had not even pleaded that he is not in occupation of residential building of his own – Basic requirement of Section not satisfied – Dismissal of Eviction Petition confirmed in Revision.”
(ii) 1982 (95) L.W 625 in the case of M/s. Amithakumar Amichand, by partner S.Mohanlal Vs. Jawanthraj and others, the relevant portion is extracted hereunder:
“Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), S.10 (3) (c), Pleadings, and Words and Phrases – Additional accommodation, requirement for – Proposal to start an independent business by a person doing joint business, not an additional requirement - “And”, “Propose”, meaning of.”
(iii) 1997 (III) CTC 339 in the case of T.S.Sethuraman Vs. J.Nagalakshmi and another, the relevant portion is extracted hereunder:
“Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(3) (c) – Additional Accommodation – Relative Hardship – For maintaining Petition under this Section relative hardship should be pleaded and established – Relative hardship can be decided only on 12/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 basis of facts available in Pleadings and Evidence – There should be categorical finding by authorities that hardship which may be caused to tenant by granting decree for eviction would outweigh advantage to landlord – No pleading regarding relative hardship and no evidence available on record – No findings in this regard by Authorities – Eviction cannot be ordered.”
(iv) CDJ 1992 MHC 345 in the case of R.Krishnaswamy Vs. N.Arumugam.
13. The learned Counsel for the Respondent by way of reply submitted that this Civil Revision Petition itself is not maintainable. The learned Counsel for the Respondent submitted that the Revision Petitioner herein had filed this Petition against the Order passed by the learned Rent Control Appellate Authority, confirming the Order of the learned Rent Controller. The tenant who is unable to succeed both the Courts below, by filing this Petition to protract the proceedings. The Petitioner in RCOP had sought the premises for business purpose. The M.P.No.549 of 2017 filed by the Respondent/landlord for amending the Provision of law was agitated at the highest level. The order of the learned Rent Controller was upheld in RCA. Therefore, there is no merit in this Petition and is to be dismissed. It is filed with an intention to protract the proceedings for some more period. 13/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Already the landlord had expressed his desire to the tenant to vacate the premises for his additional accommodation and he had stopped receiving rent also. While so, the Revision Petition had been filed only with an ulterior motive to squat over the properties for some more period.
14. The learned Counsel for the Respondent submitted that the tenant has no power to prevent the landlord to occupy the premises as per the direction of the tenant. The landlord had made out a case for owner's occupation.
15. It is the contention of the learned Counsel for the Respondent that the tenant will not suffer any damage as he is running similar business in three other places. There is no landlord-tenant dispute. The tenant was given possession on contractual period and that had expired. The learned Counsel for the Respondent had relied on the following rulings:
(i) AIR 1966 SC 735, 1967 (o) BLJR 158, 1966 2 SCR 286 in the case of Bhagwati Prasad Vs. Shri Chandramaul, the relevant portion is extracted hereunder:14/32
https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 “10................. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which other party did not lead evidence and had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”
(ii) 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan, the relevant portion is extracted hereunder:
“…........ From the above decision, it is clear that even if there is any lack of pleadings, if the parties understood the case and have adduced evidence, application is not liable to be rejected merely on the ground of lack of pleadings, or vague pleadings. In this case, tenant volunteered and out a contention that if he is liable to be evicted, he will be put to greater hardship than the landlord and, therefore, he wanted the Petition to be dismissed. For the said purpose, he gave evidence that he has invested huge amounts in the business and how far he will be put to great hardship is a matter which has to be considered.
…...In this case also the learned Judge held that a lack of pleadings should not be a ground for dismissal of eviction petition when, “The purpose of pleading is only to satisfy the principles of natural justice i.e. the opposite party must be made known about the case which he has to meet. If the opposite party himself is aware of what he has to plead and prove, and joint in issue with the landlord, and he has no case of any prejudice even if mere is lack of pleading is the Rent Control Petition, no Rent Control Petition should be dismissed on the ground of this technicality.” All these decisions would show that when there is on building which is divided into one portion separated by a dividing wall and 15/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 there is oneness of structures of the building and that application under Section 10(3) (c) of the Act would apply, notwithstanding lack of pleadings if the parties are aware that the issue of relative hardship has to be decided. Mere technicalities should not come the way of giving effect to the logical conclusion. Existence of business is not denied. There is material to show that the expansion of space would mean increase in business. There are also materials to show that the earlier inconvenience of the landlord would be mainimised if the additional accommodation is obtained. The desire exhibited by the landlord is not a mere want but a genuine need. In this case, both the authorities have considered in detail all these aspects and have ordered eviction. Above all, one also has to see the extent to which this Court can interfere under Section 25 of the Act. It has been repeatedly held the revisional jurisdiction is not akin to a full-fledged appeal and the Judge sitting in revision must be very careful about launching on a independent re-appreciation of the evidence and to substitute the findings of the Rent Control Authorities with another when the materials before the Court equally sustain the conclusion arrived at by the authorities below. Unless there is misapplication of law or a legally wrong approach or grave and substantial injustice, the Revisional Court will not interfere with concurrent findings of the Rent Controller and their satisfaction regarding bona fide need and relative hardship.”
(iii) CRP.No.1089/2009 & M.P.No.1/2009 in the case of Prop.G.Sampath Vs. P.Chandra, the relevant portion is extracted hereunder:
“21. It is significant to note that even though the premises occupied by the landlord and tenants bear separate door numbers, they are occupying the premises in a single building. The landlord is occupying the first floor and the tenants are occupying the ground floor. Separate door numbers have been assigned to the portions occupied by the landlord and the tenants. Even though separate door numbers are in a single building. The landlord is occupying the first floor and the tenants are occupying the ground floor. So, it cannot be 16/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 said that they are separate buildings and the landlord is not entitled to ask for additional accommodation. The premises occupied by the tenants are in the same building. It is not a different building. The premises occupied by the tenants and the landlord are in one and the same building even though separate door numbers have been assigned. So, I find that Petition under Section 10(3) (c) of the Rent Control Act is very well maintainable. So, I find force in the argument advanced by the counsel for the Revision Petitioners.
A mere perusal of those judgments would amply make the point clear that the tenant cannot dictate terms as to which area should be chosen by the landlord for his additional accommodation and it is for the latter to take a decision on that.
18. I recollect and call up the maxim-Rerum suarum quilibet est moderator et arbiter. Everyone is the regulator and disposer of his own property. As such, taking into consideration the aforesaid legal proposition and factual situation, I am of the view that the findings given by both the Courts below that the requirement of the landlords was for bonafide purpose cannot be found fault with.
31. I would like to agree with his view because it is not necessary that verbatim the ingredients should be reproduced in the Petition. It is sufficient, if facts are found spelt out as correctly pointed out by the learned Counsel for the landlords. A mere reading of the petition in RCOP would demonstrate and display that the landlords expressed their bona fide requirement and the hardship that would be caused to them, if no eviction is ordered. In para Nos.6 and 7 of the RCOP petition those averments are explicit in highlighting the relevant ingredients contemplated in the aforesaid provisions of law.”
(iv) Civil Appeals 1376-1377/2010 in the case of V.Prabhakara Vs. Basavaraj K, the relevant portion is extracted hereunder:
“….......But where the substantial matters relating to the title of both parties to the Suit are touched, though indirectly or even obscurely, in the issues, and the evidence has been led about them, 17/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.”
16. It is the contention of the learned Counsel for the Respondent that the parties were known to each other. They are not strangers. They are aware of each other cases. Therefore, the submission of the learned Counsel for the Revision Petitioners that the Petition filed under Section 10(3) (a)
(iii) of the Act, subsequently, amended as Section 10 (3) (c) of the Act without amending the averments, the RCOP is not maintainable and will not hold good. The intention of the landlord had been made clear at the initial stage. Therefore, already the time sought by the landlord for eviction of the tenant had lapsed, still the landlord requires additional accommodation. In the light of the above, the learned Counsel appearing for the Respondent sought dismissal of this Petition with direction to the Execution Court to execute the decree.
17. Point for consideration:
Whether the order passed by the VII Small Causes 18/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Court, Chennai in RCA.No.19/2019 by reversing the Order dated 01.02.2018 made in RCOP.No.195 of 2017 on the file of the XIV Small Causes Court, Chennai is to be set aside?
18. Perused the Petition and Counter in RCOP filed by the tenant, grounds of Appeal in RCA, Judgment of RCA and the Order passed by this Court in earlier CRP No.1512 of 2018 whereby the tenant was imposed with costs.
19. In the light of the above, the RCOP is not maintainable as the earlier order passed by this Court in CRP.No.1512 of 2018 holds good when the tenant raised the question of amendment without pleading before the Rent Controller. Also, the claim of the Petitioner in Original Petition is for additional accommodation for the own business. Subsequently, after evidence, he had amended the prayer without amending the pleadings. Therefore, the finding of the Hon'ble Supreme Court relied on by the learned Counsel for the Petitioners/tenant will not hold good. In the earlier CRP.No.1512 of 2018 filed by the tenant before this Court it was dismissed by imposing costs of Rs.10,000/-.
19/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021
20. As rightly pointed out by the learned Counsel for the Respondent herein based on the rulings of the Hon'ble Supreme Court that the tenant and the landlord is aware of each other's case. The RCOP proceedings are based on enquiry and not on trial. The procedures are summary proceedings. In summary proceedings, the intention of the parties to the dispute outweigh other consideration. When each other is aware of their respective cases, there cannot be technicalities of law. It is true, originally the Petition was filed under Section 10 (3) (a) (iii) of the Act and subsequently, it was amended under Section 10 (3) (c) of the Act. The purpose for which the properties of the landlord was sought, is found justified. The tenant cannot dictate terms to the landlord.
21. The reported ruling cited by the learned Senior Counsel for the Revision Petitioner/tenant in 2004 (1) CTC 668 in the case of Kathan Vs. Scaw Manak Chand Shohaji is with regard to owner's occupation of the premises where the landlord sought the demised premises for his residential purpose, wherein it was held that the landlord has to prove that he has no 20/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 other premises in his occupation in the same City, Town or Village. Landlord had not even pleaded that he is not in occupation of residential building of his own. The ratio laid down in the said ruling will not help the Revision Petitioner/tenant in this case. The words in the evidence stated that except the premises for the occupation of the tenant in the case before this Court, the entire building is in occupation of the landlord/Respondent for his business. It is a clear case that he requires the leased-out premises for his business purpose. It is also the case of the landlord that the tenant in this case/Revision Petitioner is running a chain of Restaurant within the same City that had been discussed by the learned Rent Controller. Therefore, comparatively, the loss or hardship caused to the tenant will be less compared to the loss or hardship caused to the landlord in this case.
22. The suggestion of the tenant to the landlord as P.W-1, in his cross-examination that there is vacant space in the basement which can be used for additional accommodation was denied by him stating that the premises in use and occupied by the tenant/Respondent in RCOP/Revision Petitioner herein is only fit for running Restaurant for his own business 21/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 purpose and not the basement. Basement will not be fit for the same. Therefore, the reported ruling will not help the Revision Petitioner's case. Hence, rejected.
23. The learned Counsel for the Respondent relied on the ruling reported in 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan, wherein it was clearly held that even if there is any lack of pleadings, if the parties understood the case and have adduced evidence, application is not liable to be rejected merely on the ground of lack of pleadings, or vague pleadings. Here in this case, the Landlord as Petitioner in RCOP had amended the RCOP seeking the additional accommodation for his business purpose. It is the contention of the learned Senior Counsel for the Revision Petitioner that the body of the Petition did not contain the word, “additional accommodation”, whereas prayer only stated as additional accommodation. Therefore, the amendment is not supported by the pleadings, the learned Judge having allowed the Rent Control Petition had resulted in miscarriage of justice will not hold good in this case as the landlord had clearly made his intention that he needs leased out premises in 22/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 occupation of the tenant. Also, the period of lease had expired, it was not renewed by the landlord and also the landlord stopped receiving rent from the tenant. That shows the clear intention of the landlord that he needs leased out premises for his own purpose of an additional accommodation. Therefore, the ruling cited by the learned Senior Counsel for the Revision Petitioner will not help his case. The rulings relied on by the learned Counsel for the Respondent/landlord clearly helps the case not only amendment filed by the landlord in Miscellaneous Petition was objected by the tenant up to the level of the Civil Revision Petition. In which, Civil Revision Petition was dismissed with heavy costs imposed on the tenant. Therefore, the very same issue cannot be raised in this case.
24. The rulings cited by the learned Senior Counsel for the Revision Petitioner/tenant in 1982 (95) L.W 625 in the case of M/s. Amithakumar Amichand, by partner S.Mohanlal Vs. Jawanthraj and Others, also will not help the case of the Revision Petitioner/tenant. As in the reported ruling, it is for the additional accommodation and the proposal to start an independent business by a person doing joint business. In this 23/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 case, the landlord as Respondent in the Civil Revision Petition as Petitioner in RCOP had made clear that due to his intention to run Restaurant in the leased out premises as part of his business for additional accommodation. There is clear evidence that the entire building is occupied by him in addition to the lodge and he needs an additional accommodation to run Restaurant. Under those circumstances, it will not help the Revision Petitioner's case.
25. Also, in the reported ruling cited by the learned Counsel for the Respondent/landlord in CRP.No.1089/2009 & M.P.No.1/2009 in the case of Prop. G.Sampath Vs. P.Chandra, it is held that the premises occupied by the landlord and the tenant in the same building and it is not a different building. The facts of the reported ruling squarely applies to the facts of this case where the tenant and the landlord are also in the same building since he is running a Restaurant in the leased-out premises. The Revision petitioner is running a chain of Restaurant in the City of Chennai by evicting the premises, he is not suffering any hardship, comparatively any hardship caused to the Respondent/landlord. Therefore, in support of his 24/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 contention, the rulings cited by the learned Senior Counsel for the Revision Petitioner/tenant is rejected. In the light of the earlier decision by the very same High Court by imposing heavy costs on the tenant by filing a Civil Revision Petition against the amendment filed by the landlord. In the light of the above, this Civil Revision Petition is to be allowed for additional accommodation.
26. In support of his contention, learned Senior Counsel for the Revision Petitioners relied on the ruling reported in 1997 (III) CTC 339 in the case of T.S.Sethuraman Vs. J.Nagalakshmi and another for the proposition that the Civil Revision Petition is to be allowed and the Order passed by the learned Rent Control Appellate Authority confirming the finding of the learned Rent Controller directing the tenant to evict and hand over the vacant possession is to be set aside. As per the reported ruling, it is the case where the learned Rent Controller had weighed the relative hardship caused to the landlord and tenant to maintain the Petition under this Section the relative hardship should be pleaded and established. Here, also the learned Rent Controller had discussed about the relative hardship, 25/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 based on the evidence regarding the same let-in by the landlord.
27. The learned Judge had discussed about the hardship caused to the landlord if the RCOP is dismissed and the hardship caused to the tenant, if the RCOP is allowed. Also it is discussed regarding the evidence of the landlord that if the Petition is dismissed, the hardship caused to the landlord. If the contention that no pleadings, any amount of evidence, without pleadings regarding the hardship caused to the Petitioner/landlord, when comparing to the hardship caused to the tenant/Respondent in RCOP was without pleadings, therefore, the Order of the learned Rent Controller is to be set aside will not hold good in this case in the light of the reported ruling cited by the learned Counsel for the Respondent in this Civil Revision Petition.
28. In 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan relied by the learned Counsel for the Respondent/landlord wherein it is stated that even if there is any lack of pleadings, if the parties understood the case and have adduced evidence, application is not liable to 26/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 be rejected merely on the ground of lack of pleadings, or vague pleadings. Therefore, the contention of the learned Senior Counsel for the Revision Petitioner that the learned Rent Controller discussing about the hardship caused to the landlord, if the RCOP is dismissed and the hardship caused to the tenant, if the RCOP is allowed. Based on evidence, without pleadings, evidence is not acceptable will not hold good in this case. In the light of reported ruling in 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan wherein it is stated that if the parties to the proceedings know each other, then the technicality of law cannot be dismissed. In the light of above, the submissions of the learned Senior Counsel for the Revision Petitioner that the learned Rent Controller allowed the RCOP filed by the landlord even though there is no pleadings for additional accommodation. But amendment only in prayer for additional accommodation. Therefore, the Civil Revision Petition has to be allowed, cannot at all be accepted in the light of the facts that the amendment itself was taken at the highest level till the Civil Revision Petition by the tenant which was dismissed by this Court by imposing a heavy cost on the tenant. Further, in the light of the rulings relied on by the learned Counsel for the 27/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 Respondent/landlord in 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan, when the parties are aware of each other's case, the learned Rent Controller in this case having discussed the evidence available in the RCOP stating that the hardship is caused to the landlord if the RCOP is dismissed and hardship is caused to the tenant, if the RCOP is allowed and arrived at a just conclusion that the hardship caused to the landlord will be greater than the hardship caused to the tenant. Further, it is stated that the tenant is running a chain of Restaurant whereas the entire building leased-out premises is in the ground floor and is in the occupation by the tenant. The entire building is in occupation by the landlord who is running lodge. Therefore, he requires the leased out premises to run a Restaurant in the ground floor. Under those circumstances, the submission of the learned Senior Counsel for the Revision Petitioner/tenant placing reliance on the ruling reported in 1997 (III) CTC 339 in the case of T.S.Sethuraman Vs. J.Nagalakshmi and another will not hold good and hence rejected in the facts and circumstances of this case.
29. On perusing the rulings cited by both the parties, the rulings cited by the learned Counsel for the Respondent/landlord in AIR 1966 SC 28/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 735, 1967 (o) BLJR 158, 1966 2 SCR 286 in the case of Bhagwati Prasad Vs. Shri Chandramaul, (ii) 2001 (3) CTC 206 in the case of Karur Ghee Stores Vs. N.Palaniappan and (iii) CRP.No.1089/2009 & M.P.No.1/2009 in the case of Prop. G.Sampath Vs. P.Chandra which are relevant and applicable to the facts of this case in the light of the evidence discussed by the learned Rent Controller regarding the comparative hardship caused to the landlord and hardship caused to the tenant.
30. Also, in the light of the earlier Civil Revision Petition regarding pleadings raised by the tenant having been dismissed by this Court with heavy costs, this Civil Revision cannot be allowed on the ground that there are no pleadings in spite of the landlord having amended only the prayer for additional accommodation. Also, in the very same premises, the landlord has basement which can be used for his business purpose. The landlord also has building in the very same Town in different place. Therefore, the comparative hardship caused having been discussed by the learned Rent Controller without pleadings and based on that the Order passed by the learned Rent Controller is to be set aside cannot at all be accepted and hence 29/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 rejected. It is rejected based on the facts that the rulings cited by the learned Counsel for the Respondent supports the Order passed by the learned Rent Controller and the submissions of the learned Counsel for the Respondent is found acceptable in the facts of this case. The tenant having a chain of Restaurant in the very same City which is comparatively less hardship to the landlord. The lease period had expired. The landlord with a clear intention not renewed it. With his clear mind to evict the tenant from the premises, he had not accepted the rent after the expiry of lease period as the landlord wanted his own Restaurant in the very same City.
31. In the light of the above discussion, the submissions of the learned Counsel for the Petitioners is rejected. The submission of the learned Counsel for the Respondent is found acceptable in the facts and circumstances of this case.
32. The Point for consideration is answered in favour of the Respondent and against the Revision Petitioners. The order passed by the learned VII Judge, Court of Small Causes, Chennai, in RCA.No.19/2019 30/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 dated 08.02.2021 by confirming the order passed by the learned XIV Judge, Court of Small Causes, Chennai in RCOP.No.195 of 2017 dated 01.02.2018 is to be confirmed.
In the result, this Civil Revision Petition is dismissed as having no merits. The order passed by the learned VII Judge, Court of Small Causes, Chennai, in RCA.No.19/2019 dated 08.02.2021 by confirming the Order passed by the learned XIV Judge, Court of Small Causes, Chennai in RCOP.No.195 of 2017 dated 01.02.2018 is confirmed.
The Revision Petitioner/Tenant is directed to vacate the premises within two months from the date of this order, failing which, the Respondent/Landlord shall proceed with execution proceedings.
28.04.2023 dh Index : Yes/No Speaking/Non-speaking order Neutral Citation : Yes/No 31/32 https://www.mhc.tn.gov.in/judis .CRP.No.875 of 2021 SATHI KUMAR SUKUMARA KURUP., J.
dh To
1. The learned Judge, XIV Small Causes Court, Chennai.
2. The learned Judge, VII Small Causes Court, Chennai.
3. The Section Officer, V.R.Section, High Court, Madras.
Order made in C.R.P.No.875 of 2021 28.04.2023 32/32 https://www.mhc.tn.gov.in/judis