Madras High Court
C. Keval Chand And Anr. vs Karuppanna Mudaliar And Ors. on 7 October, 1996
Equivalent citations: (1997)1MLJ459
ORDER S.S. Subramani, J.
1. In all these revisions arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, landlords are the revision petitioners.
2. Except in C.R.P. No. 2677 of 1989, the findings of the authorities below are concurrent, against the landlords. In C.R.P. No. 2677 of 1989, Rent Controller found that the claim of the landlords is bona fide and that they require the building for their own occupation. When the matter was taken in appeal, the appellate authority, in view of its judgment in the appeals which are the subject-matter of revision in C.R.P. Nos.2674,2675 and 2676 of 1969, allowed the appeal and dismissed the claim. Hence, the revision petitions by the landlords.
3. In all these cases, a common question arises, i.e., whether the building is required bona fide, for the own occupation of the landlords. Even though separate eviction petitions have been filed, tenants are in occupation of portions of the same structure having single room tenements, for residential purpose.
4. It is the cause of the landlords that they have no other building of their own, and in the site in which the schedule buildings are situated, they are going to put up a new construction for their residence. It is their case that the condition of the building is also seen that it requires immediate demolition and reconstruction. The averment in all the petitions are similar. It is said that they are not having any residential premises of their own.
5. The counter statements are also similar, i.e., the tenants dispute the claim of the landlords.
6. Originally, an eviction petition was filed against one Krishnaji as R.C.O.P. No. 168 of 1981. That application was filed for the same reason. But the same could not be prosecuted since the tenant, died and no steps were taken to implead the legal heirs. Therefore, that petition was dismissed as stated. Subsequently, R.C.O.P. No. 121 of 1985 was filed impleading his wife as the tenant. It is against that decision, C.R.P. No. 2677 of 1989 arises.
7. I have already said that the decisions in the three revision petitions are concurrent, and following that decision the Rent Controller's order of eviction was set aside in appeal. Even though the findings in C.R.P. No. 2677 of 1989 are not concurrent, the findings in other cases will have to follow in that revision also, since the subject-matter of the same is also part of the same structure.
8. I am well aware that being a concurrent finding, this Court should be reluctant in interfering with the finding of fact. The question is, whether the building is required bonafide for the own occupation of the landlords or not. It is held as a finding of fact. Unless patent illegality or irregularity or impropriety is shown, law is that the revisional court shall not interfere with those findings. But, in this case, I feel that a patent illegality has been committed and, therefore, interference is called for. I will state the reasons one by one.
9. In C.R.P. No. 2674 of 1989, the tenant is one Karuppanna Mudaliar. Against him, there wa:; an earlier proceeding as H.R.C. No. 225 of 1979. That was dismissed. One of the reasons mentioned by the authorities below for rejecting the landlords' claim is that the decision in H.R.C. No. 225 of 1979 binds this case also, and the application is barred under Section 19 of the Rent Control Act (on the principle of res judicata). Secondly, it is found that the landlord has got a building and, therefore, the present claim is lacking in good faith. Thirdly, eviction was denied on the ground that even though the landlord obtained plan and licence, the same were not renewed from time to time. Fourthly, the condition of the building was not proved to be bad. These are the main grounds on which all the eviction petitions were dismissed.
10. On going through the evidence in this case, for the purpose of verifying whether the decisions of the authorities below are in any way illegal, irregular or improper, I find that none of those contentions can stand a moment' scrutiny. The decisions of the authorities below are based on no evidence and are based only on surmises.
11. Regarding the aspect of res judicata or bar of the petition under Section 19 of the Act, it is true that the landlord (second petitioner) admitted while he was in box that there was an earlier proceeding against the tenant Karuppanna Mudaliar and removed that petition on the ground of requirement for own occupation. It is also admitted by him that the said petition was allowed by the Rent Controller and the same was set aside in appeal.
12. In the pleading, no case of res judicata was put forward, and no reference is also made to H.R.C.O.P. No. 225 of 1979. In fact, in the counter, the only statement is that from the year 1969, the petitioners were trying to evict him, and the case was fought upto the High Court. When a defence is taken that an application is not maintainable on the ground of res judicata or bar under Section 19 of the Rent Control Act, it is for the person challenging the maintainability to substantiate the same. The best evidence in this case is the eviction petition and the order dismissing the main petition. Those documents are not filed. Merely because the present petition is also one for own occupation, it does not automatically follow that the cause of action is the same. No evidence has been let it to show what was the averment in the earlier petition and the reasons for dismissing the same. Only if that evidence is before court, a conclusion can be arrived at whether the petition is barred by res judicata or not. Without the documents the authorities below held that the present petition is barred by res judicata. The matter did not end there. The principle of res judicata has been made applicable even as against the other tenants against when no application for eviction was filed earlier. Both the authorities were moved by this contention to hold against the landlord. The said finding according to me, can only be said as perverse.
13 The landlords contended that they have no residential building of their own and, therefore, they want to demolish the schedule building and put up a new building. The claim is mainly for own occupation after remodelling the building. To substantiate-that, they have no other building of their own, they must be asked to lead negative evidence. In the evidence of the second petitioner, he has said that they art residing in a building known as 'Ambika Textiles', where they are doing business, as well as residing there; It is also alleged by them that the building does not belong to them, and it belongs to the undivided joint family, of which they are members. When this was the case put forward, Rent Controller as well as the appellate authority took only one portion of that evidence and said that the petitioners have a building of their own. When a statement of a witness is taken into consideration the statement must be taken as a whole. In his deposition, it was said that they are residing in their own building, and the building belongs to the undivided joint family. Only the first portion of the sentence was taken into consideration by the authorities below. It was also said that there are more than 30 members in the family and they cannot continue their residence in that place. Rent Controller was of the view that the ownership of 'Arnbika Textiles' has not been proved and how many members/persons are residing in that building, is also not proved and; therefore, the claim is lacking in good faith. When the tenant contended that 'Ambika Textiles' belonged to the landlords exclusively, or that they have other alternative accommodation, it was for the tenant to prove the same. No evidence was let in by them in that regard. No circumstance has also been made out why the evidence of the landlords should not be believed. The prohibition under the statute for getting the tenant evicted in respect of a residential building is only when the landlord is having another building of his own: When that disqualification is not there, disentitling the landlord from getting possession treating the joint family building as their own, cannot be correct. In this connection, decision of the Supreme Court reported in Super Forgings and Steels (Sales) (P) Limited v. Thyabally Basuljee (dead) through L.Rs. , was also brought to my notice. That is a case in respect of anon-residential building. During the pendency of the proceeding, the owner died and that right devolved on the, respondents in that case. The respondents therein became co-owners so far as another non-residential building was concerned and the same was also in their occupation. While considering the case, the Supreme Court said that a co-owner is also a owner for the purpose of Rent Control Act, and if a co-owner is in occupation of a non-residential building, he is disentitled to get possession of the tenanted premises. In the case of residential buildings also, the wordings are the same, and we can say that the same principle will apply for residential building also. But, even then, I do not think, the said case has got any hearing to the facts of this case. A co-parcener of a joint Hindu family is never treated as a owner, nor has he got any definite alienate right. He is also not entitled to sue when the manager is alive, nor has he got a definite share to say that the property is his own. A co-owner cannot be equated with a member of a joint family, where the share is always fluctuating.
14. In Mulla's 'Principles of Hindu Law' - 15th Edition (1 982) at page 316, the learned author deals with the right of a co-parcener. There, he has said that 'No co-parcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate such interest even for value except in Bombay, Madras and Madhya Pradesh'. The learned author further goes on to say that 'even in the case of an alienation the only right which the purchaser gets is a right in equity, i.e., to compel partition with the other members of all the joint family properties, and request the court that as far as possible the property which he purchased may be allotted towards the alienating coparcener'. At page 340 of the same book, learned author says : "If a coparcener is not a managing member, he is also not entitled to sue as representing the family". In this case, the case of the landlords all along was that they have no residential building of their own, and they occupy a building belonging to the joint family. A trunkated portion of the evidence was taken to decide the case against the landlords. I called for the original records including to the position, and I found that the statement was, what I have said above. The authorities below were not justified in taking a portion of a sentence in the evidence of the second petitioner (landlord) for deciding the case. The procedure adopted by them is illegal.
15. Once it is found that the landlords have no building of their own, and when they say that they want to have separate residence of their own, the same cannot be said as unjust. To a certain extent, Rent Control Law recognises the discretion in favour of the landlord, and he is the master in taking a decision as to where he should reside.
16. In Smt. Sheela Chadha and Ors. v. Dr. Achharaj Ram Seghal 1990 S.C.C. (Supp.) 736, in paragraph 2 of the judgment, their Lordships said thus:
The law grants a fair amount of discretion to the landlord to determine his needs when asking the vacation of tenanted premises. The only check on that is that must have the ground and the need should be bona fide.
17. The other ground on which the finding went against the landlords was, that they have not renewed the licence, that the schedule building is not fit for their occupation, and the condition of the building is also not proved. If only the Rent Controller as well as the appellate authority had considered the pleadings, the result would have been different. The. question of condition of the building will emerge only if the landlords want eviction of the building otherwise than for own occupation. In the pleadings as well as in evidence, what they say is, that the building requires demolition and reconstruction for the purpose of their own use. If that claim is bona fide, and eviction is ordered, the question whether they use the building in its present condition or after remodelling the same, or after demolition and reconstruction, is not anybody's concern. The question of condition of the building assumes importance only if it is taken as an independent ground of eviction. Their case in the eviction petitions is, that they have no residential building of their own. They require the entire structure for their own occupation, and they intend to occupy it, after demolition and reconstruction. The subsequent paragraph in the eviction petition only enumerates ho they are going to use the building after getting possession. The Rent Controller as well as the appellate authority found that the licence has not been renewed, and the ingredient under Section 14(1)(b) of the Act was not satisfied. That is why I hold that the authorities below have not taken into consideration the pleadings and properly understood what the landlords have asked for. Rent Controller as well as the appellate authority also says that being a single room tenement, the landlords who were in the habit of residing in a multi-storeyed building, cannot make use of the schedule premises. I cannot understand the logic of this argument. As I have said earlier, if the claim is found to be bonafide, the way in which the landlords are going to use their premises is not the concern of the court. Law does not prohibit that a person who is residing in a multi-storeyed building should not reside in a building of his own though it is small.
18. Rent Controller as well as the appellate authority has further found that just behind the demised premises there is a vacant place measuring 12' x 100', and if the landlords intend to put up construction, they can use that vacant place for that purpose.
19. The choice where to put up the construction must be left to the landlords. It is said that by making use of the, site in which the schedule premises is situated, they want to put up a builc1' g. That means, even the vacant space is also to ye included in the new construction. Without unders sliding the same, the authorities below have rendered a finding against the landlords. It is also found by the authorities below that the landlords are in the habit of filing petition after petition, for eviction. As I have said already, the only instance where a petition was filed earlier, was against Karuppanna Mudaliar, as H.R.C.O.P. No. 225 of 1979. It is true, there was another petition as H.R.C.O.P. No. 226 of 1979, filed against one Gopalasami Naidu. It is spoken by the landlords that after the petition was filed against Gopalasami Naidu, he vacated the premises and the landlords obtained possession. Likewise another petition was filed against one Antony. He also vacated the premises. So, the finding of the authorities below accusing the landlords that they are in the habit\of filing petition after petition, only shows that the authorities below had a prejudiced mind against the landlords, revision petitioners herein.
20. One more circumstance has also been taken note of by the authorities below, i.e., after the eviction petition Were filed, there was an enhancement in the payment of rent. If the tenant volunteered in paying the same and the landlords accepted it, I do not think, bonk fides of the landlords can be questioned on that ground. These are the findings of the authorities below while rejecting the claim of the landlords. When these findings are based on no evidence merely because they happen to be concurrent findings, this Court cannot shut its eyes when an injustice is done to a. party. If this Court also holds that the landlords are not entitled to claim eviction, it will be only failing in its duties, and will be a party perpetuating the injustice already done by the authorities below.
21. When a revision is filed before this Court, this Court is atleast entitled to see whether the authorities below have acted legally. While considering the same, if an illegality is found out, nothing prevents this Court from correcting the same.
22. In this connection, I may rely on two decisions of this Court as to the duty of the authorities under the Act. The Rent Control Legislation should not be construed as a beneficial legislation to the tenant alone. It has to be considered as a Legislation regulating the eviction, and when grounds have been made out, they should not be thwarted by wrong interpretation of the statute. In Mst. Bega Begum v. Abdul Ahad Khan , their Lordships said thus:
...It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language as unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts in other States in the country.
The said decision was followed in Kewal Singh v. Smt. Lajwanti , wherein it was held thus:
...The concept of bonafide personal necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical.
The decision in Mst. Bega Begum v. Abdul Ahad Khan , was followed by the Supreme Court in Gulabhai v. Nalin Narsi Vohra , paragraph 26 of the judgment.
23. In C.R.P. No. 2677 of 1989, the Rent Controller found on the basis of the evidence let in in that case that the claim of the landlord is genuine. He believed the case of the landlords, which was the very same case put forward in the earlier case. By the time the Rent Controller decided that case, the earlier petition had already been disposed of and a contention, was taken before the Rent. Controller by the tenants that similar application filed by the landlord had been dismissed, and they wanted a finding that the eviction petition has to be dismissed on that ground. The Rent Controller rightly found that he cannot take notice of the evidence let in in those cases, and even the judgment in that case was not filed. Rejecting the contention of the tenant, eviction was ordered. Curiously enough, when the matter was taken before the appellate authority, the appellate authority said that the Rent Controller should have taken note of the decisions in the earlier cases and should have dismissed the petition. It means that the Rent Controller should have taken judicial notice of certain cases which he had disposed of years before even though the parties had refused to produce the evidence in that case. The appellate authority failed to note that independent evidence was letin in R.C.O.P. No. 121 of 1985, and the Rent Controllers is expected to decide the case on the basis of the evidence let in in that matter. The appellate authority further found that even though the landlords had stated that the building where they reside belongs to a joint undivided family, they have not proved the number of rooms available in that building. Every person will have a desire, and that too an honest desire, to occupy their own building and the finding of the appellate authority that the landlords must continue to reside with others cannot be accepted.
24. I hold that the findings of the authorities below are irregular and improper, and are based not on evidence, but on surmises.
25. Even the pleadings have not been properly considered by the authorities and the same has caused great prejudice to the landlords. I do not find any circumstances to doubt the bonafide nature of the claim of the landlords. When they have no other building of their own and they want the schedule premises for their own occupation, and when there is a failure on the part of the tenants to prove that the landlords have got other building of their own, I feel I will be justified in ordering eviction.
26. In the result, I set aside the judgments of the authorities below and allow all the revision petitions. The eviction petitions filed by the revision petitioners herein will stand allowed on the ground that the landlords require the schedule building for their own occupation.
27. The tenants are given two months time to vacate the premises on each of them filing an affidavit of undertaking within ten days from to-day before this Court, that they will surrender vacant possession of the demised premises to the landlords. They will also pay the arrears of rent as on date, and will continue to pay the rent as and when it becomes due. In default, of any of the above conditions, landlords are at liberty to execute the decree ignoring the time granted; Since the illegality was committed by the authorities below, I do not want to burden the tenants with costs.