Madras High Court
R. Krishnaswamy vs N. Arumugam on 18 August, 1992
Equivalent citations: (1993)1MLJ122
ORDER Thanikkachalam, J.
1. The tenant is the petitioner herein. The petition for eviction was filed under Sections 10(3)(c) and 14(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1976, hereinafter referred to as 'the Act'. The landlord purchased the petition premises along with the downstair portion from one Ramasubramania Iyer on 6.5.1982. The tenant is in occupation of the upstair portion and the staircase. The tenant was in the petition premises even prior to the purchase of the premises by the landlord. In the downstair portion the landlord is conducting a general merchant shop. The tenant is doing business as a newspaper agent. According to the landlord, the portion under his occupation is not sufficient for his business. Hence, he required the portion under the occupation of the tenant bona fide by way of additional accommodation under Section 10(3)(c) of the Act. According to the landlord, the petition premises required extensive repairs. Therefore, he also required the petition premises for repairs under Section 14(a) of the Act. The tenant filed a suit for injunction against the landlord in O.S. No. 523 of 1982 and obtained an order of interim injunction against the landlord. The landlord sent a notice to the tenant dated 16.8.1982 calling upon him to quit and deliver the vacant possession. The tenant sent a reply dated 24.9.1982 refusing to vacate. Hence, the landlord came forward with this petition for eviction.
2. According to the tenant the portion under the occupation of the landlord is sufficient to carry on his business. The tenant submitted that the landlord does not require the portion under the occupation of the tenant bona fide under Section 10(3)(c) of the Act. According to the tenant, the petition premises is in good condition. Therefore, it requires no repairs. It was, therefore, pleaded that the petition for eviction is liable to be dismissed. The landlord filed Ex.A-1 to Ex.A-5. The tenant filed Ex.B-1 to Ex.B-10. Ex.C-1 is the report filed by the commissioner. The landlord examined himself as P.W. I. The tenant examined himself as R.W. 1 Considering the facts arising in this case, the Rent Controller came to the conclusion that the request of the landlord for eviction under Section 10(3) (c) of the Act and under Section 14(a) of the Act cannot be acceded to. Accordingly, the petition for eviction was dismissed. On appeal, the Rent Control Appellate Authority came to the conclusion that the landlord established his bona fide in requiring the petition premises under Section 10(3)(c) of the Act. Accordingly, the Rent Control Appellate Authority set aside the order passed by the Rent Controller under Section 10(3)(c) of the Act. In so far as the order passed by the Rent Controller under Section 14(a) of the Act is concerned, the same was confirmed by the Rent Control Appellate Authority. It is against this order, the present revision has been preferred by the tenant.
3. The learned Counsel appearing for the tenant submitted as under:
There is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(c) of the Act. In the petition for eviction the landlord failed to plead hardship that may be caused to him if the tenant is not evicted from the petition premises. There is also no averments to the effect that if the tenant is evicted, the hardship caused to the tenant would not outweigh the advantage to the landlord. The portion under the occupation of the landlord is sufficient for his business and, therefore, his requirement of the petition premises under Section 10(3)(c) of the Act is not bona fide. There is no evidence on record to show that his business was improving so as to require additional accommodation for expanding the business. It is not correct to state that the tenant vacated the premises and conducted his business elsewhere. It is also not correct to state that the tenant sublet the portion under his occupation to a third party. The landlords business turnover per month does not warrant for additional accommodation. The landlord required the petition premises by way of additional accommodation for his crackers business. The business in crackers is only a seasonal business. In the petition for eviction the landlord has not stated as to what is the bona fide reason for requiring the additional accommodation. The tenant was doing his business in the petition premises for the past several years and if he is vacated, that would cause great hardship to him which would outweigh the advantage that the landlord may get. It was, therefore, pleaded that the first appellate court was not correct in ordering eviction.
4. On the other hand, the learned senior counsel, Mr. T.R. Mani, appearing for the landlord/respondent herein submitted as under : The landlord purchased the petition premises for the purpose of expanding his business. The landlord is doing business in the downstair portion as a general merchant and also doing the business in crackers. The portion under the occupation of the landlord is 8 feet x 15 feet. The tenant is not carrying on his business in the upstair portion. In the staircase, he pulled down three steps and constructed a platform, on which he is doing his business as newspaper agent. The report filed by the commissioner would go to show that in the upstair portion the tenant dumped a cartload of sand. The upstair portion was also not kept in good condition. The roof with palm leaves and tin sheets is also in a bad condition. In that small space, the landlord has sunk Rs. 5,000 by way of capital for his business and he is earning Rs. 300 to Rs. 400 per month from the said business. In fact, the tenant has vacated the premises and he is doing his business in a different place. The tenant also sublet the portion under his occupation to a third party, who is doing his business there. The subsequent development of events would go to show that the tenant is not occupation of the petition premises. According to the landlord if the tenant is not vacated that would cause great hardship to him. It was, therefore pleaded that the Rent Control Appellate Authority was correct in ordering eviction under Section 10(3)(c) of the Act. Since the order passed by the Rent Control Appellate Authority is based upon facts, no further interference is called for.
5. I have heard the rival submissions.
6. The fact remains that originally the premises belonged to one Rama Subramania Iyer. In the said premises in the ground floor the landlord's father was conducting his business as a general merchant and the tenant herein was conducting his business as newspaper agent in the upstair portion. Later on, on 6.5.1982, the downstair portion and the upstair portion was purchased by the landlord herein. According to the landlord, he required the portion under the occupation of the tenant by way of additional accommodation under Section 10(3)(c) of the Act. In fact, the tenant is in occupation of the upstair portion and the staircase. A commissioner was appointed. In the commissioner's report it is stated that the upstair portion was dumped with a cartload of sand and it is also not in a clean condition. The roof is made up of palm leaves and tinsheets. According to the commissioner, there are holes in the roof. The tenant pulled down three of the steps in the staircase and constructed a platform, on which he is doing his business as a newspaper agent. According to the landlord the portion under his occupation is 8 feet x 15 feet. He is doing business as a general merchant and also selling crackers. He sunk a sum of Rs. 5,000 towards capital of his business. His monthly turnover is from Rs. 300 to Rs. 400. The landlord submitted that the tenant is not carrying on his business is the upstair portion. According to him the tenant vacated the premises and he is doing his business elsewhere, after subletting the petition premises to a third party, who is doing his lottery business in the petition premises. This was stated to be a subsequent event that took place after the appeal was disposed of by the learned Rent Control Appellate Authority. In order to support this version, the landlord also filed an application for permission, to file additional documents in this revision proceedings. The landlord got affidavits from three persons in his locality to show that the tenant has vacated the petition premises and conducting his business elsewhere. The learned Counsel appearing for the tenant on this aspect submitted that if according to the landlord, the tenant has sublet the portion under his occupation to a third party, then it is always open to him to file a petition for eviction on the ground of subletting and without doing that, the learned Counsel submitted that the landlord cannot bring this fact as a subsequent event to the notice of this Court and claim eviction on this ground. According to the learned Counsel for the tenant, the tenant is still in occupation of the petition premises and doing his business there. The learned Counsel for the tenant submitted that there is nothing wrong on the part of the tenant in doing business at two places. According to the learned Counsel simply because the tenant is doing his business elsewhere that would not lead to the conclusion that the tenant vacated the petition premises. This line of reasoning adduced by the learned Counsel appearing for the tenant appears to be acceptable. The landlord says that the tenant vacated the premises subsequent to the order passed by the learned Rent Control Appellate Authority. But according to the tenant he did not vacate the premises but he is still in occupation of the petition premises and doing his business. This question cannot be decided here without appreciating the evidence adduced by both the parties of this aspect. No doubt, the report filed by the commissioner says that the upstair portion was dumped with cartload of sand and it is not kept clean. It was also pointed out that the tenant pulled down three steps in the staircase and constructed a platform, over which he is doing his newspaper agent business. It is also the case of the landlord that the portion under his occupation is only 8 feet x 15 feet. Therefore, he required the portion under the occupation of the tenant byway of additional accommodation. It may be true, that the landlord required the petition premises by way of additional accommodation. But the fact remains that the petition for eviction on the ground of additional accommodation must be filed in accordance with the provisions contained under Section 10(3)(c) of the Act. In a petition for eviction filed under Section 10(3)(c) of the Act, the landlord should clearly state that he required the petition premises by way of additional accommodation. But according to the proviso, the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. In order to decide this question of hardship, there must be proper pleadings in the petition. In the present case, the petition was filed by the landlord under Section 10(3)(c) of the Act, but there was no averment regarding the hardship as contemplated under the proviso to Section 10(3)(c) of the Act. If the hardship is not pleaded in a petition filed under Section 10(3)(c) of the Act that is fatal to the petition. (See the decisions in Radhakrishnan v. Seethalakshmi (1988)1 L.W. 67 and Annakkili Animal v. H.C. Hussain 97 L.W. 116. In the present case, the petition filed under Section 10(3)(c) of the Act contains no averment with regard to the hardship as contemplated under the proviso to Section 10(3)(c) of the Act and hence the petition is not maintainable. Therefore, it is liable to be dismissed. This legal aspect was not considered by the Rent Control Appellate Authority. Thus on a careful consideration of the facts arising in this case and the legal principle on this aspect. I hold that the Rent Control Appellate Authority was not correct in confirming the order of eviction passed by the Rent Controller. Accordingly, the revision filed by the tenant stands allowed. The order of the eviction passed by the Rent Control Appellate Authority under Section 10(3)(c) of the Act stands set aside, and the petition for eviction dismissed.
7. In the result, the revision is allowed. However, there will be no order as to costs.