C.Dejvadhasan vs Rajakumar on 20 April, 2010

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Madras High Court

C.Dejvadhasan vs Rajakumar on 20 April, 2010

2.The tenant is the revision petitioner. The respondent/landlord filed RCOP No.23 of 2004, on the file of Rent Controller, Nagercoil, for eviction of the revision petitioner on the ground of wilful default and owner's occupation.

3.The case of the respondent/landlord was that the revision petitioner had taken the property on lease for a period of one year from 02.02.1998 and paid a sum of Rs.10,000/- as advance. The monthly rent was fixed at Rs.625/- per month. After the expiry of the first year, the agreement was renewed for a period of two years from 01.02.1999 and the revision petitioner agreed to pay Rs.700/- per month as rent. It is further stated that it was agreed between the parties that after the expiry of one year, the tenant has to pay Rs.25/- in addition to the rent fixed and therefore, from 02.02.2001 the tenant has to pay Rs.775/- per month and from 02.02.2002 at Rs.850/- per month and so on. The tenant was paying Rs.750/- per month from 02.02.2001 and from 02.02.2002 instead of paying Rs.775/- per month, he was paying only Rs.750/- and he defaulted in the payment of rent of Rs.25/-. Subsequently, he did not pay the enhanced rent as stated above. The landlord further stated that his son is an unemployed graduate and is also suffering from diabetic and other diseases. His son is running a shop in the Shopping Complex No.720 and the place is not sufficient for him to do the business and the tenanted premises is situate on the eastern side of the said shop. Therefore, the tenanted premises is needed for additional accommodation and for that purpose, the tenanted premise is required for the own occupation of the landlord's son. Therefore, notice was sent to the tenant, directing him to vacate and hand over the possession and also to pay the arrears of rent and there was no response from the tenant and hence, the petition was filed.

4.The tenant/revision petitioner filed a counter stating that he paid advance of Rs.15,000/- and not Rs.10,000/- as stated by the landlord. He further admitted that as per the agreement, from 02.02.1999 the rent was Rs.700- per month for a period of two years and thereafter for a further period of two years, he has to increase the rent by Rs.75/- per month and he denied the further allegations that he agreed to pay Rs.75/- in addition to the existing rent for every year thereafter. He also denied the allegation that the landlord required the premises for his son own occupation and stated that the place where the landlord's son is doing business is more than sufficient and the landlord's son is also having a portion in the upstairs portion where he is doing business at present and therefore, he is not entitled to claim the premises for his own occupation.

5.During the trial, an Advocate Commissioner was appointed and he also submitted his report along with plan. The lease agreement was marked as Ex.B1. The learned Rent Controller held that as per Ex.B1, after the expiry of two years period, the tenant has agreed to pay Rs.75/- in addition to the existing rent and there was no agreement to pay the enhanced rent by adding Rs.75/- per month every year thereafter. The learned Rent Controller further held that after the expiry of 2 years, the tenant ought to have paid Rs.775/- per month, but he paid Rs.750/- per month only and though the tenant has to pay Rs.775/- per month and was paying only Rs.750/- per month, having regard to the cordial relationship between the parties, it cannot be stated that the tenant has committed wilful default in the payment of rent and found that the landlord's son is not entitled to eviction on the ground of wilful default.

6.The learned Rent Controller further held that the landlord's son is doing business in a building having an area of 60 sq.feet and the tenant has admitted that the landlord's son is a heart patient and though he expanded his Rubber Stamp business in the upstairs portion, he cannot go to the upstairs portion because of his illness and the tenanted premises is situate adjacent to the place where his son is doing business and by removing a wall, the two premises can be made as one premises. Therefore, the Rent Controller held that the premises is required for additional accommodation of the landlord and allowed the application filed by the landlord and ordered eviction. The tenant/revision petitioner filed appeal in RCA No.5 of 2008, on the file of the Rent Control Appellate Authority, Nagercoil and contended that the petition was filed on the ground of own occupation under section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 and the Rent Controller had found that the premises is required for additional accommodation of the landlord and while deciding that issue, the Rent Controller has not considered the relative hardship that may cause to the tenant in ordering eviction and without giving finding to that effect, eviction cannot be sustained. The Rent Control Appellate Authority considered the Commissioner's Report and found that the upstairs portion is not a big one and it is not convenient for accommodating the business of the landlord and that place is used for storing materials and the tenant cannot dictate as to which portion, the landlord has to do business. The learned Rent Control Appellate Authority further held that though the landlord filed application under section 10(3)(a)(iii) for his own occupation, pleadings were to the effect that he required the building as additional accommodation and mere quoting of wrong provision in the petition, would not be a ground to reject the contention of the respondent. The tenant has also understood that the landlord required the premises for additional accommodation and also filed counter with specific pleadings with regard to comparative hardship and held that the premises is required as additional accommodation for the landlord's son business and merely because the tenant may find it difficult and secure an alternative accommodation, it cannot be stated that hardship that may be caused to him would outweigh the advantage to the landlord and the landlord has satisfied all the requirements of section 10(3)(c) of the Act and confirmed the order of eviction. Aggrieved by the same, this civil revision is filed by the tenant.

7.Mr.C.Godwin, the learned counsel appearing for the revision petitioner submitted that the landlord has come to the Court with specific pleadings and averments that the tenanted premises is required for his son's own occupation and he did not ask for additional accommodation and the Rent Controller has also not given any finding regarding the relative hardship as per section 10(3)(c) of the Act and therefore, the Rent Control Appellate Authority erred in holding that the landlord has proved his case for additional accommodation. He further submitted that the premises in the occupation of the landlord's son is more than sufficient for him to do the business and only with a view to evict him, the petition was filed and therefore, there is no bona-fide on the part of the landlord and hence, the order of the Rent Control Appellate Authority is not correct.

8.Mr.G.R.Swaminathan, the learned counsel appearing for the respondent/landlord submitted that quoting of wrong provision is not a ground for rejecting the case of the landlord and that has been rightly appreciated by the trial Court and the landlord has proved that he required the tenanted premises for his son's own business and both the authorities have concurrently held that the premises is required for additional accommodation of the landlord and therefore, the said concurrent finding cannot be interfered with in this civil revision. In support of his contention, he relied upon the judgment reported in 2009(4)MLJ 37, 2007(4) MLJ 251, in the case of B.Kishore, Proprietor, "B" Kishore Auto Spares, Chennai vs. D.Maragathavalli, Chennai and in 2006(2) MLJ 16, in the case of P.M.S.Pakkir Mohideen vs. K.Susila and contended that as per the judgment of the Honourable Supreme Court reported in 2002(4) SCC 627 in the case of Kanniammal vs. Chellaram, which was followed in 2006(2)MLJ 16 [P.M.S.Pakkir Mohideen vs. K.Susila] and contended that the present petition though filed under section 10(3(a)(iii) can be treated as 10(3)(c) and the Lower Appellate Court has rightly held that the premises is required for the additional accommodation of the landlord's son and the tenant is liable to be evicted.

9.The main contention of the revision petitioner is that the petition is filed under section 10(3)(a)(iii) of the Act and admittedly, the respondent owns a non-residential building and is doing business there and therefore, he is not entitled to seek for eviction of another non-residential building under section 10(3(a)(iii)of the Act. The learned counsel appearing for the revision petitioner further submitted that the Rent Controller did not give any finding regarding relative hardship and the Rent Control Appellate Authority also did not consider the relative hardship that will cause to the tenant if he is directed to vacate the premises and hence, the order of the authorities below are not in accordance with law.

10.It is true that the respondent filed application on the ground of wilful default and for own occupation viz., under Section 10(3(a)(iii) of Tamil Nadu Buildings (Lease and Rent Control Act) 1960. It is equally proved that in the pleadings he has stated in para '7' that the son of the petitioner viz., the respondent herein required additional accommodation to develop and continue his business and the petitioner viz., the respondent herein, is not having any other conducive shop other than the petition schedule building to expand the business of her son. Therefore, it has been made clear in the petition that the petition was filed for additional accommodation though it has been filed under section 10(3(a)(iii). The revision petitioner also understood the scope of the petition and he has also filed counter wherein he has stated in para '7' that the son of the petitioner viz., the respondent herein, is already doing his business in the ground-floor and the upstairs portion having about 2500 sq.ft. and as such, the petition schedule building is not required for additional accommodation as alleged. Therefore, both the parties are aware of the scope of the case and the revision petitioner also understood that the petition is filed for additional accommodation and the parties have also let in evidence to the same effect. Therefore, having regard to the evidence and pleadings, I am of the opinion that the revision petitioner is aware that the petition was filed only for additional accommodation and the parties have let in evidence on that basis and therefore, mere quoting of wrong provision of law will not cause any prejudice to the revision petitioner and that cannot be a ground of rejecting the case of the respondent/landlord. Further, the Rent Control Appellate Authority also relied upon the judgment reported in 1999(1) LW 650 and 1999(3) MLJ 330 wherein this Court has held that mere quoiting of wrong provision of law will not disentitle the landlord from getting any relief. Hence, the contention of the revision petitioner that the respondent has filed the petition for his own occupation and he is not entitled to an order of eviction under section 10(3(a)(iii) of the Act as she is in possession of another premises, which is also a non-residential one, cannot be accepted.

11.The next point to be considered is whether the respondent is entitled to seek additional accommodation. It is submitted by the learned counsel appearing for the revision petitioner that admittedly, the premises in which the revision petitioner is doing business is having separate door number and the premises in the occupation of the respondent where the respondent's son is doing business is having different separate door number and they are adjacent to each other and therefore, having regard to the fact that both the buildings were given separate door numbers, even assuming that the petition has been filed under section 10(3)(c) of the Act, additional accommodation cannot be asked. In other-words, it is submitted that unless the tenanted premises is also having in the same building, the landlord is not entitled to seek for additional accommodation and in this case, both are having different door numbers. Therefore, the eviction petition is not maintainable under section 10(3(c)of the Act.

12.The learned counsel appearing for the respondent Mr.G.R.Swaminathan submitted that though different door numbers were given to the portion in the occupation of the respondent and the tenanted premises, they form part of the same building and it is also admitted by the revision petitioner in his evidence that only a wall separates the two portion and by removing the wall, the tenanted premises and the portion in the occupation of the respondent can become one and therefore, the petition is maintainable under section 10(3)c) of the Act.

13.It is admitted by the respondent in evidence that the tenanted premises is adjacent to the building in the occupation of the landlord. The tenanted premises is on the western side and the portion where the landlord's son is doing business is on the eastern side.

14.It is further admitted that only a wall separates the two portions and once the wall is removed, it becomes one premise. Therefore, it is seen from the evidence of the revision petitioner that though two different door numbers were given, they form part of the same building. In this connection, we will have to see the meaning of the word "building" as found under section 10(3) of the Act.

15.It has been held in the judgment reported in 1974 TNLJ 193, in the matter of Sivaji Rao vs. Bhujanga Rao wherein after relying upon the judgment reported in 1964(1) MLJ 112, the learned Judge has held the meaning of the word building should be given the ordinary and natural meaning and the artificial definition of the word "building" in the Act itself should not be imposed on it.

16.In that case, 8 shops in question are physically part of the building bearing Door No.439. The shops were given different door numbers and only a partition wall separates each the shops. It that circumstances, it has held that the shop in question is situate in the same building, which is in the occupation of the landlord and therefore, the landlord is entitled to file application u/s.10(3)(c) of the Act for additional accommodation alone.

17.It is further held in the judgment reported in 1997(2) MLJ 498, in the case of Kuthalingam vs. Jahir Hussain as follows; "What section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act envisages is the oneness of the building and owners of the ownership of two different buildings one occupied by the landlord and the other by the tenant. In the instant case Door Nos.29,30,31,40,41 etc. are all owned by the landlord himself. The landlord is admittedly in occupation of No.31. The additional accommodation is now sought for Door No.30 which is admittedly in the occupation of the tenant. Door No.30 and 31 are admittedly in one building and the requirement of the landlord is also bona-fide there can be no impediment on the part of the landlord from asking for additional occupation in the same building."

18.In the judgment reported in 2003(1)LW 236, in the case of K.M.Ranganathan vs. S.Sankaralingam, the learned Judge has held that where there was no structural unit in the building that was in the occupation of the landlord and the tenant, section 10(3(c) will not apply and where two shops are part of one building, which is divided by a wall section 10(3)(c) will apply.

19.Further, in the judgment reported in AIR 1989 SC 302, in the case of Gangaram vs. N.Shankar Reddy, the Honourable Supreme Court has held section 10(3) envisages the oneness of the building and oneness of ownership of two different buildings, one kept by the landlord and another by tenant. Therefore, considering the above judgments and also the evidence in this case, it can be stated that the portion in the occupation of the landlord as well as in the occupation of the tenant form part of the same building, even though two different door numbers were given and hence, the petition filed under section 10(3)(c) alone is maintainable and 10(3)(a)(iii) will not apply to the facts of this case.

20.Mr.C.Godwin, the learned counsel appearing for the revision petitioner submitted that in the event of 10(3)c) is applicable, there is no pleadings regarding the relative hardship by the respondent/landlord and no finding has been given by the Rent Controller and therefore, eviction order cannot be sustained.

21.As stated supra, the revision petitioner was aware that the petition is filed only for additional accommodation and he has also filed counter to the same extent and in the counter, he also stated in para '8'that the hardship may ensue if eviction is ordered. The landlord in his petition also stated that no inconvenience is caused to the respondent, while surrendering the petition schedule premises to the petitioner. Therefore, necessary pleadings have been made by the parties and evidence was also let in about the relative hardship.

22.It is admitted by the revision petitioner that the respondent's son is a heart patient and he is doing business in the adjacent building also in the upstairs portion and as a heart patient he is not in a position to go to the upstairs portion. He further stated that he has invested huge amount in the business and he has to realise more than Rs.3,00,000/-, which was given as credit to his customers and it would take another three years to realise the said amount and therefore, he cannot be evicted from the premises. Therefore, parties have let in evidence regarding the relative hardship and no-doubt, the Rent Controller has not given any specific finding about the relative hardship. Nevertheless, the Rent Controller has stated, that the plea of the tenant that he has to recover more than Rs.3,00,000/- from the customers and therefore, he cannot be evicted cannot be accepted for the reasons that the petition is filed in the year 2004 and final hearing was taken in the year 2007 and therefore, three years time was available to the tenant and therefore, he will not be prejudiced by ordering eviction. The Rent Control Appellate Authority had gone in detail regarding the relative hardship and held that the appellant has admitted in evidence that his wife is doing a similar business viz., 'Doss Watch Workshop' at Door No.29, Alexandra Press Road and the appellant/tenant can secure suitable shop portion in that area to accommodate his business in the event of ordering eviction. The Rent Control Appellate Authority further held that merely because it will be difficult for the appellant to secure an alternative accommodation of a similar shop, that cannot be a ground that hardship may be caused to him would out-weigh the advantage to the landlord. Therefore, the Rent Control Appellate Authority had given a clear finding that the tenant's wife is having another shop in another place and it will not be difficult for the tenant and therefore, there cannot be any hardship if eviction is ordered. Further, in this case admittedly the landlord's son is a heart patient and the Commissioner has given a finding that the upstairs portion, which is in the possession of the landlord's son is not a big one and it is not convenient for having the business of the landlord and it is used for storing materials. Further, it is also admitted by the tenant that the landlord's son cannot go to the upstairs portion since he is a heart patient. Therefore, the Rent Control Appellate Authority has given a clear finding on the basis of the materials available that hardship which may be caused to the tenant by granting eviction will not out-weigh the advantage of the landlord. In this case, the advantage that would be available to the landlord by ordering eviction is that his son, who is having heart ailment and can do the business in the tenanted premises also and that would also help his health and the tenant would not be prejudiced by ordering eviction.

23.Further, in the judgment reported in 2001(3) CTC 206, in the case of Karur Ghee Stores rep. by V.Periasamy vs. N.Palaniappan and another, the learned Judge has considered the scope of lack of pleadings about the relative hardship and relied upon the judgment reported in 2000(3) LW 482 in the case of N.Dakshinamoorthy v. Alaphose Celestine Kamala Benjamine and 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.

24.Further, in the judgment reported in 2000(2) MLJ 228 in the case of S.V.M. Nagavairava Sundaram vs. Bageerathan and another, it has held as follows:

"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 there is lack of pleading is the Rent Control petition, no Rent Control petition should be dismissed on the ground of this technicality."

25.Further in the judgment reported in 1998(2) LW 216 in the case of The Nilgiris Co-op. Marketing Society v. C.T.Uthandi held as follows:- "In the case on hand though there is no pleading on the side of the landlord regarding the relative hardship, yet the tenant had chosen to plead in detail on that aspect. Oral evidence is available on both sides on the issue of relative hardship on both the courts below have considered it and had come to the conclusion that the relative hardship is in favour of landlord. Under these circumstances, want of pleading in this case on the part of the landlord regarding the relative hardship does not affect his case and in any event no prejudice to the tenant has been passed. Therefore, the requirement of the landlord on the ground of additional accommodation is also clearly made out and no grounds whatsoever are made out to interfere in the finding as well."

Therefore, even in the absence of lack of pleadings when the parties have let in evidence and understood the case that may not be a ground to reject the case filed by the landlord.

26.In this case, necessary pleadings were made and parties have let in evidence knowing fully well that the eviction is sought for only on the ground of additional accommodation and evidence was also let in regarding the relative hardship and considering all these aspects, the authorities below have ordered eviction. Further, both the authorities have concurrently held that the premises is bona-fide required for the landlord's son business and hence, I do not find any material to take the above view.

27.Hence, the order of the Courts below does not call for any interference and accordingly, this civil revision petition is dismissed. The tenant/revision petitioner is given six months' time to vacate and hand over the vacant possession of the tenanted premises on condition of filing an undertaking affidavit within 10 days from today agreeing to vacate and handover the possession on the expiry of six months from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.

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