Madras High Court
Mathew vs M.Sulaiman on 22 January, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 22.01.2015 CORAM The Hon'ble Mr.Justice K.KALYANASUNDARAM CRP NPD Nos.1870 & 2365 of 2014 and M.P.No.1 of 2014 1. Mathew 2. Joseph .. Petitioners in CRP NPD 1870/2014 and Respondents in CRP NPD 2365/2014 Vs M.Sulaiman .. Respondent in CRP NPD 1870/2014 and Petitioner in CRP NPD 2365/2014 Common Prayer: Civil Revision Petitions are filed under Section 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act against the fair and decreetal order dated 12.03.2014 passed in RCA Nos.304 of 2011 & 570 of 2010 & M.P.No.589 of 2013 on the file of the VIII Rent Control Appellate Authority, Court of Small Causes, Chennai confirming the fair and decreetal order of the XIII Rent Controller, Court of Small Causes, Chennai in RCOP No.2808 of 2008 dated 08.07.2010. For Petitioners : Mr.Perumbulavil Radhakrishnan in CRP NPD 1870/2014 & Respondent in CRP NPD 2365 of 2014 For Respondent : Mr.Doraisami, in CRP NPD 1870/2014 Senior Counsel for & Petitioner in M/s.S.Jaganathan CRP NPD 2365 of 2014 COMMON ORDER
The revision in CRP No.1870 of 2014 is directed against the order passed by the Rent Control Appellate Authority in RCA Nos.304 of 2011 confirming the order of the Rent Controller in RCOP No.2808 of 2008 dated 08.07.2010.
2. The revision in CRP No.2365 of 2014 arises out of the order passed by the Rent Control Appellate Authority in RCA No.570 of 2010 confirming the order passed by the Rent Controller in RCOP No.2808 of 2008 dated 08.07.2010.
3. Since both the revision petitions arise out of the passed passed in Rent control proceedings in RCOP No.2808 of 2008, both the revision petitions are disposed of by this common order.
4. The petitioner in RCOP No.2365 of 2014, as landlord initiated eviction proceedings against his tenants in RCOP No.2808 of 2008 seeking eviction under Section 10 (3) (a) (iii) and 10 (2) (v) of Tamil Nadu Buildings (Lease & Rent Control Act). The landlord has averred in the petition that the first respondent in the eviction petition was inducted as a tenant on 15.11.1984 on a monthly rent of Rs.1100/- for running a business in the name & style of Impex Form. The chief tenant left Madras after selling his property in Neelankarai and settled at his native place at Kottayam in Kerala State during the year 2007 after sub-letting the demised premises to the second respondent Mr.K.M.Joseph, without the knowledge and consent of the landlord. It is further averred that the landlord requires the petition premises for his own use and occupation.
5. The petition was opposed by the tenants by filing a counter by the second respondent on behalf of the first respondent stating that the second respondent was looking after the business of the first respondent as a Manager and he was also an agent of the first respondent. The second respondent was also running the business as co-proprietor and he was getting his profit in the business and that the requirement of the premises is not bonafide.
6. Before the Rent Controller, the landlord examined himself as PW1 and marked Exs.P1 to P8. The second respondent / sub-tenant was examined as RW1and Ex.R1 was marked. The Rent Controller, after considering the evidence, ordered eviction on the ground of sub-letting while rejecting the ground of own use and occupation. Aggrieved against the order, the tenants filed an appeal in RCA No.304 of 2011 and the landlord preferred an appeal in RCA No.570 of 2010. The Appellate Authority confirming the order of the Rent Controller, dismissed both the appeals. Challenging the order, the landlord filed revision petition in CRP NPD No.2365 of 2014 and the tenant filed revision in CRP NPD No.1870 of 2014.
7. Mr.Perumbulavil Radhakrishnan, learned counsel for the tenant submitted that the eviction petition was filed on two grounds, i.e. for own use and occupation and for sub-letting. Admittedly, the landlord is carrying on business in part of the portion of the same premises and therefore the authorities have rightly rejected the ground of own use and occupation. It is further submitted that the chief tenant is the uncle of the alleged sub-tenant and due to the ill-health of the chief tenant, he was taking treatment in Kerala and therefore the alleged sub-tenant is looking after the business. It is further contended that the Rent Controller and the Appellate Authority mainly relied on the sale deed executed, i.e. Ex.P8 by which the chief tenant has sold the property at Chennai, to come to the conclusion that he had left Chennai and settled at Kerala.
8. It is further submitted that the chief tenant is an aged person and so on behalf of the chief tenant, the alleged sub-tenant has given evidence and also produced the power of attorney, Ex.R1. Therefore, the finding that the first respondent had not entered into the witness box and he does not subject himself for cross examination cannot be a ground to decide the ground of sub-letting. It is further submitted that as per Section 85 of the Evidence Act, presumption has to be drawn that the Power of Attorney is genuine once it is a notarised copy and the same was not objected while marking the documents, that as per Power of Attorney Act, it is not mandatory that the power of attorney has to be attested by a witness. Therefore, the finding that the power of attorney is a forged document cannot be accepted. The learned counsel has relied upon a judgment of the Hon'ble Supreme Court in Dev Kumar v. Swaran Lata reported in 1996 (1) SCC 25, judgment of this Court in Bentool Steel Products (P) Ltd. v. O.M.A. Mohammed Omar reported in 2001 (3) CTC 618 and an unreported judgment of this Court in CRP No.603 of 2004 [G.Veera Raghavan v. K.Devanathan].
9. Per contra, Shri K.Doraisami, learned Senior Counsel for the respondent submitted that the chief tenant has not even filed his counter to dispute the averments made by the landlord in the eviction petition and the counter was filed by the sub-tenant on behalf of the chief tenant. It is further contended that in Ex.R1, Power of Attorney, it is stated that the chief tenant is permanently residing at Kerala and he came to Chennai only to execute the Power of Attorney; that the evidence of RW1 would reveal that the Power of Attorney was forged by the sub-tenant to give evidence in this case; that the Power of Attorney was executed only for the purpose of filing case and defend the case filed against the chief tenant and there is absolutely no reference in the document to show that the sub-tenant was appointed as a Manager or Agent or co-partner in the business of the chief tenant.
10. It is further contended that the chief tenant has not given evidence in this case and also the sub-tenant has not produced any material to show that he was looking after the business as Manager of the chief tenant. The learned Senior Counsel further submitted that both the authorities have recorded the finding of fact based on evidence which need not be upset by this court while exercising revisional jurisdiction under Section 25 of the Rent Control Act.
11. The quantum of rent is not in dispute. According to the landlord, the chief tenant was inducted on 15.11.1984 and in the year 2007, he left Chennai and without the knowledge and consent of the landlord, sub-let the premises to the sub-tenant. It is admitted by the tenants also that the second respondent is looking after the business in the petition premises. The landlord has contended that the chief tenant has parted possession of the tenanted premises to the sub-tenant and the sub-tenant is doing business on his own. In the counter filed by the respondents, they have stated that the second respondent/sub-tenant was the Manager of the first respondent/chief tenant, that he is the Agent of the chief tenant and he is also a co-proprietor of the business.
12. A careful reading of the counter would show that the tenants have taken contradictory stands stating that the sub-tenant is the Manager, Agent and Co-proprietor of the chief tenant. In other words, they have taken inconsistent stand in the counter. When the sub-tenant admits that he is in possession of the tenanted premises and after the landlord has established that the tenanted premise was occupied by the sub-tenant, the burden of proof shifts on the tenant to prove that the second respondent was in possession of the premises as Manager of the chief tenant. As rightly contended by the learned Senior Counsel for the respondent, except producing the Power of Attorney, Ex.R1, the tenants have not produced any document to show that the sub-tenant was in possession of the petition premises as Manager of the chief tenant. P.W.1, has given evidence stating that the chief tenant has left Chennai in the year 2007 and he is permanently settled at his native place in Kerala, but the tenants have not produced any evidence to show that the chief tenant is still in Chennai and he is running the business. RW1 has also admitted in his evidence that he is now looking after the business and he is also working as a co-proprietor.
13. In Devkumar v. Swaran Lata reported in 1996 (1) SCC 25, the Hon'ble Apex Courtr has held as follows -
9. Coming to the second question the expression sub-letting has not been defined in the Act. The conclusion on the question of sub-letting is a conclusion on a question of law derived from the findings on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. As to what is the true meaning of the expression sub-letting, this Court considered the same in the case of Jagdish Prasad v. Angoori Devi4 in an eviction proceeding under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. The Court held that merely from the presence of the person other than the tenant in the shop, sub-letting cannot be presumed and as long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of the person other than the tenant in the shop cannot be assumed. It was further held that in an application for eviction of a tenant from a shop which is based on the allegations that the premises has been sub-let, the allegation has to be proved. The question of sub-letting was considered by this Court in the case of Shalimar Tar Products Ltd. v. H.C. Sharma5 and it was held that in order to construe sub-letting there must be parting of legal possession of the lessee and parting of legal possession means possession with the right to include and also right to exclude others.
14. In Bentool Steel Products (P) Ltd. v. O.M.A. Mohammed Omar reported in 2001 (3) CTC 618, this Court has held as follows -
11. A perusal of the pleadings referred to above would not disclose as to whether the portion of the demised premises was let out to Evertaught Steels Private Limited exclusively and as to what was the rent for which it was sublet without the consent of the respondents herein. It is not also clear as to whether Evertaught Steels Private Limited is in occupation of the demised premises along with the revision petitioner as seen from the above said pleadings. Learned counsel for the respondents, herein has fairly concedes that Evertaught Steels Private Ltd. is in occupation of the demised premises along with the revision petitioner and such fact can be seen from Ex.P.19. dated 29.3.1994, chalan issued by Evertaught Steels Private Ltd., situate, at No.230, Lingni Chetty Street, Madras-1 to G.leck Stone Ltd. at No.32, G.N. Chetty Street. T.Nagar, Madras 17, of course, a perusal of Ex.P.19 would disclose that leck Stones Limited is having its business at door No. 230, Linghi Chetti Street, Madras-1, the premises owned by the respondents herein. The telephone Number and telex number of the Evertaught Steel private Limited were shown as 513304 and 41-7468 BENIL-IM. The above said document, of course, the place of business or Evertaught Steels Private Limited was shown as the premises let out to the revision petitioner herein but it would not disclose that the said Evertaught Steels Private Ltd. is in occupation of the premises let out to the revision petitioner exclusively.
12. In the decision reported in Dipak Banerjee v. Lilbaji Chakraborty, . It has been held by the Honourable Apex Court that in order to prove the tenancy or sub-tenancy, the first ingredient that has to be established is that the alleged sub-tenant is in exclusive possession of, or part of the premises and the tenant retains no control over that part of the premises. It is also held that the second ingredient to prove the sub-tenancy is that the right to occupy the premises must be in lieu of payment of some compensation or rent.
15. In the decisions relied on by the learned counsel for the petitioner, there was no evidence to show that the chief tenant has parted with possession of the tenanted premises to the sub-tenant. In the above facts, the courts have held that the landlord has not established that the chief tenant has not parted with possession to the sub-tenant and he was in exclusive possession of the tenanted premises. But in the present case, the landlord has established that the chief tenant has sub-let the premises to the sub-tenant. Therefore, I am of the considered opinion that the above decisions have no bearing on the case on hand.
16. Indisputably, the landlord is carrying on business in the portion of the same premises. However, the landlord filed the eviction petition on the ground of own use and occupation under Section 10 (3) (c). It is settled law that once the landlord has occupied a portion of the petition premises, he can seek eviction only on the ground of additional accommodation. The learned Senior Counsel for the landlord submitted that the wrong quoting of provision of law cannot be given significance and the requirement of the landlord is only for additional accommodation. I do not agree with the contentions of the learned Senior Counsel for the landlord.
17. It is settled law that in the case of additional accommodation, there should be pleading, evidence and finding with regard to relative hardship. In the present case, both the authorities have not given any finding with regard to comparative action. Hence, I do not find any reason to interfere the order of eviction on the ground of own use and occupation. However, I am of the opinion that the landlord is entitled to succeed on the ground of sub-letting.
18. In a judgment of the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh reported in 2014 (5) CTC 217, it is held as follows -
45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.
19. Applying the principles laid down by the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd.'s case, cited supra, this Court cannot re-appreciate the evidence while exercising jurisdictional power under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. It is settled law that the concurrent findings of facts recorded based on evidence cannot be upset in exercising revisionsal jurisdiction. I do not find any perversity arbitrariness and illegality to upset the concurrent findings reached by the courts below.
20. In view of the above finding, both the Civil Revision Petitions are dismissed. No costs. The tenant shall vacate and handover the vacant possession to the landlord on or before 31.07.2015. The tenant shall continue to pay the rent regularly to the landlord. The tenant is also directed to file an affidavit of undertaking, within a period of two weeks from the date of receipt of a copy of this order.
22.01.2015 Index : Yes/No rgr To
1.The VIII Judge, Court of Small Causes, Chennai
2.The XIII Judge, Court of Small Causes, Chennai K.KALYANASUNDARAM,J rgr CRP NPD Nos.1870 & 2365 of 2014 22.01.2015