Madras High Court
M.R.M. Duraiappa Nadar vs P. Thirupurasundariammal on 26 November, 1987
Equivalent citations: (1989)1MLJ89
ORDER M.N. Chandurkar, C.J.
1. The petitioner is a tenant of the landlady who is now paying rent at Rs. 150 per month. The petition for eviction of the tenant was filed by I he landlady on two grounds. One ground was that the tenant had ceased to occupy the building for a continuous period of four months without reasonable cause as contemplated by Section 10(2)(vi) of the Tamil Nadu Buildings (Lease, and Rent Control) Act, 1960 (hereinafter called 'the Act'). The other ground was that the building was bona fide required by the landlady for the immediate purpose of demolishing it and such demolition was to be made for the purpose of erecting a new building on the site of the building sought to he demolished as contemplated under Section 14(1)(b). On evidence, the Rent Controller held on both the grounds in favour of the landlady. He held that the building was not in a sound condition and that it needed to be demolished. He further held that the landlady had established beyond doubt that she was in possession of sufficient means to carry out demolition and reconstruction. This conclusion was expressly based on three documents Exs.P-5 to P-7. Exs.P-5 series are the tax receipts issued by the Corporation of Madras, Ex.P-6 gives the details of income of the landlady submitted to the Income-tax Officer for the year ending 31-3-1981 and Ex.P-7 series are the Wealth Tax returns of the landlady for the year ending 31-3-1981.
2. So far as the other ground was concerned, the Rent Controller referred to the evidence of the landlady herself who had stated that the shop was kept closed without being used for carrying on business for two years while another tenant P.W.3 had stated that the shop was closed for seven or eight years. The Rent Controller rejected the two account books Exs.R-1 and R-2 relating to the year 1980-81 on the ground that the tenant had not filed any cash bill or credit bill to establish that he was doing business in rice. He also found that if Ex.R-1 was the day book and Ex.R-2 was the ledger, they could not be held to be genuine because in Ex.R-2, Rs. 6,250 was shown as capital but there was no corresponding entry in Ex.R-1. He also referred to the fact that Exs.R-1 and R-2 did not contain any account for the months of June and July, 1981 and rejected the explanation of the tenant as to why accounts were not written for these months. Having rejected these two documents, he came to the conclusion that the tenant had ceased to occupy the petition premises for more than two years.
3. In the appeal filed by the tenant, the Appellate authority held that the claim for demolition and reconstruction was not bona fide. This conclusion was reached on several circumstances, namely, that she did not have any cash for undertaking construction work which according to her involved an expenditure of Rs. 1 Lakh, that she had no bank account and that the construction of another building of her own had stopped half way. Therefore, the Appellate Authority doubted whether the landlady would be able to undertake demolition and reconstruction.
4. So far as the second ground was concerned, the Appellate Authority, however, confirmed the finding of the Rent Controller that the tenant was not carrying on any business in the petition mentioned premises.
5. In this revision petition filed by the tenant, it was argued by the learned Counsel that the Appellate Authority was in error in placing the burden of proof on the tenant by requiring him to show that the premises were in his occupation. Further, according to the learned Counsel, the inconsistency between the evidence of P.W.3 and the landlady where the landlady stated that the shop was closed for two years and P.W.3 stated that the shop was closed for seven or eight years would itself be destructive of the case of the landlady. It was also argued that even if the tenant had kept his goods inside the shop and had not removed them lock stock and barrel, the premises must be treated as being in his occupation. The learned Counsel, therefore, attacked the finding that he had ceased to occupy the premises.
6. The learned Counsel appearing on behalf of the landlady while supporting the finding that the tenant had ceased to occupy the premises further contended that even assuming that there was an infirmity in that finding, the landlady was entitled to urge in this revision petition that the Appellate Authority was in error in reversing the finding that the premises were bona fide required for demolition and reconstruction notwithstanding the fact that the landlady had not filed any separate revision petition.
7. It appears to be settled law so far as this Court is concerned that where a final order in rent control proceedings is in favour of the landlord, even though on certain grounds the claim for eviction has been rejected and it has been granted on some other grounds, it is permissible for the landlord to contend in a revision petition filed by the tenant that the order of eviction should be sustained on other grounds held against the landlord and that he is entitled to show that the finding recorded by the Appellate Authority against him was erroneous.
8. It is enough to quote two decisions of this Court which settles this position. The first decision is reported in Venkataramani v. Aravamuthan in which a learned judge of this Court has held that a landlord, who urges before the authorities below several grounds to secure an order for eviction against the tenant and succeeds in establishing one of such grounds and fails in others and secures ultimately an order in his favour, is nevertheless a person "aggrieved" with reference to these findings against him if the ultimate decision of the authorities is challenged by the opposite party and it is open to the aggrieved party to sustain the order of eviction on the ground which was held against him by the lower authorities.
9. A later decision taking the same view is in Shelat Brothers v. Narendradas In that decision, it was pointed out that the principles of Order 41, Rule 22, C.P.C. can be applied and it is open to the landlord without filing an independent appeal to support the order for eviction secured by him on grounds which have been found against him either by the Rent Controller or by the Appellate Authority.
10. Having regard to the consistent view which has been taken by this Court, it would, therefore, be permissible for the landlady to argue that the order for eviction should be sustained on the ground that the premises is required bona fide for demolition and reconstruction. So far as the ground under Section 10(2)(vi) is concerned, it appears that both the authorities have misread the statutory provision The statutory provision in Section 10(2)(vi) is that the landlord will be entitled to ask for eviction of the tenant in a case where the building is situated in a place other than a hill-station and has ceased to occupy the building for a continuous period of four months without reasonable cause. There are two pre-conditions specified in Section 10(2)(vi) namely, that the tenant must cease to occupy the building for a continuous period of four months and secondly this must be without a reasonable cause. Therefore, mere ceasing to occupy a building for a continuous period of four months is by itself not enough to entitle a landlord for an order of eviction. It has in addition to be established that the conduct of the tenant in ceasing to occupy the building is without a reasonable cause. Occupation of any building and carrying on business in that building as really two different things. While carrying on of a business in a building will clearly show that the building is in occupation of the tenant, the converse does not necessarily follow. Even though the business of the tenant has been stopped, it will not mean that the tenant has ceased to occupy the building. It may mean that the tenant has ceased to use the building but the building continue to be in occupation of the tenant as long as his articles and things are lying in the building. Both the authorities have equated ceasing to carrying on business with ceasing to occupy the building which is not justified by the provisions of Section 10(2)(vi). Apart from this, it is obvious that the primary burden of proving the ingredient of Section 10(2)(vi) is on the landlord though the tenant cannot be absolved of the responsibility to adduce the necessary evidence because the facts with regard to his occupation are facts within his special knowledge. But there must be some prima facie evidence on the part of the landlord to show that the tenant has ceased to occupy the building.
11. In the instant case, there is clearly an infirmity in the evidence. While the landlady says that the tenant has ceased to occupy the building for a period of two years, P.W.3 goes to the extent of saying that he has ceased to occupy the building for the last more than eight years. On the other hand, the tenor of evidence of the tenant would show that he is in fact carrying on business. Assuming for a moment that the tenant had not got registered himself under the Sales Tax Act or had not paid sales tax, that by itself would not prove that he is not carrying on any business. In any case, so far as the landlady is concerned, it is difficult to say that she has discharged her burden of proving that the tenant has ceased to occupy the building. The finding recorded by both the Rent Control authorities are clearly vitiated by an error of law and must, therefore, be set aside.
12. So far as the other finding which relates to the bona fides of the need for demolition and reconstruction is concerned, it appears to me that even on the documents and the evidence give, the bona fides of the landlady are seriously open to doubt. It was very vehemently contended on behalf of the landlady in this Court that the landlady is a fairly rich lady owning five houses and she has 100 sovereigns in her custody and Rs. 30,000 in cash. If this evidence is accepted without any scrutiny, there is no doubt that much could be said in favour of the landlady. However, a careful scrutiny of the evidence which has been relied upon by the Rent Controller would show that he has taken a very superficial view of the evidence. As already pointed out, the Real Controller relied upon three documents Exs.P-5 to P-7. Ex.P-5 series collectively are mere receipts in regard to property and education taxes. But the real extent of the property of the landlady and her financial status is to be gathered from the two tax returns which she has filed. The so-called five houses about which repeatedly an assertion has been made do not seem to be worth much. The wealth tax returns refer only to four houses and one house has two door numbers. This house with two door numbers is worth Rs. 22,200 One house is shown as worth Rs. 21,500 and the third house is shown as worth Rs. 9,900. One can imagine what must be the condition of the houses or the nature of the construction when in 1981 these houses are valued at such ridiculously low figures. The only substantial house which seems to belong to the landlady is shown as worth Rs. 2 lakhs, out of which the portion in the owner's occupation is exempted to the extent of Rs. 1 lakh. Therefore, though much is sought to be made of the fact that the landlady is a wealth tax assessee, the total wealth is worth Rs. 1,26,690 only. Even according to her, the cost of construction would be Rs. 1 lakh and it is not her case that she wanted to raise money by the sale of these properties. Possession of these properties would, therefore, not indicate anything with regard to her capacity to raise funds.
13. It was also repeatedly asserted that the landlady had an income of Rs. 3,000 per month by way of rent. This is falsified by the income-tax return. The income-tax return shows that the rental income per month is just about Rs. 2,000. There is nothing to show that she had any other income to sustain herself, so that saving would be possible out of this rental income. She has clearly admitted that she does not have any bank account. It is, therefore, difficult to accept her version that she had kept Rs. 30,000 in cash, a fact which is impossible of verification. Then her claim that she had 100 sovereigns is also impossible of verification though normally nobody would keep such large amount of gold at home. There is no evidence to show how she acquired this gold. It appears to me, therefore, that the finding given by the Rent Controller that the landlady has sufficient means to incur the expenditure was based on a very superficial consideration of the evidence. The fact that part of construction of a house undertaken by her had been stopped is also admitted though it was sought to be explained away by giving the reason that there was a shortage of cement. There is nothing to show as to when she tried to obtain cement and why she could not get the cement which had always been freely available in the market on payment of price. The Appellate Authority, in my view, was clearly justified in reversing the finding that the tenant was liable to be evicted on the ground under Section 14(1)(b).
14. In the views which have taken, this revision petition must be allowed. The finding that the tenant had ceased to occupy the premises is set aside. The finding that the landlady did not bonafide need the premises for demolition and reconstruction is confirmed. The petition for eviction stands dismissed. The landlady will pay the costs of this revision petition. Costs Rs. 200.