B. Madasamy vs S. Sivakami Ammal

S. Sardar Zackria Hussain, J.—The unsuccessful tenant before the Rent Controller and the Rent Control Appellate Authority is the revision

petitioner. The revision is directed against the eviction order of the learned Rent Controller as confirmed by the learned Rent Control Appellate

Authority on the grounds of wilful default in payment of rent from 4.11.1987 to 30.9.1990 and the petition shop is required for the purpose of

additional accommodation by the respondent/landlady.

The respondent herein filed the Rent Control Original Petition that she is the owner of the petition shop bearing door No.58/1 in Gin Factory

Road, Tuticorin, in view of the purchase as per sale deed dated 4.11.1987. She has also purchased the adjacent property bearing door No.58/2

for the purpose of carrying on business by her and her husband. The respondent herein purchased both the buildings as the building bearing door

No.58/2 was not sufficient for their business and to extend the business in the petition building also. After purchase, the tenant agreed to pay the

rent at the rate of Rs.175/- per month and also to vacate the petition premises sooner when she apprised the fact that the petition shop is required

for additional accommodation by her and her husband to carry on business run in the adjacent shop bearing door No.58/2. The tenant failed to

pay the rent as agreed from 4.11.1987, the date of purchase till 30.9.1990 to the tune of Rs.6,107.50 and the tenant sent only Rs.150/- by money

order on 26.2.1990 and the same was returned, in that it was stated in the money order coupon that the said rent sent by money order was for

three months covering the period of November, 1989 to January, 1990. The tenant has filed R.C.O.P.No.13 of 1990 for depositing the rent into

Court stating the door number of the shop is 158/2, Gin Factory Road, Tuticorin which premises does not belong to the landlady. If the wall in

between the shops bearing door Nos.58/1 and 58/2 is removed, it can be used as one building and so, the petition shop bearing door No.58/1 is

required for additional accommodation for the business of the landlady and her husband. The tenant is having the shop in the opposite side with

wooden plants and as such, if the tenant is vacated from the petition shop, no hardship will be caused to him.

The tenant resisted the petition by filing counter stating that the rent is only Rs.50/- per month. Since the landlady refused to receive the rent sent

by money order, he has filed R.C.O.P.No.13 of 1990 for depositing the rent into Court. It is denied that the petition shop would require for

additional accommodation for the purpose of business carried on by the landlady and her husband. It is also denied that the tenant is carrying on

business on the opposite side after vacating the petition shop.

The learned Rent Controller, considering the evidence adduced on either side and Exs.A-1 to A-3 and C-1 and C-2, found that the revision

petitioner committed default wilfully in payment of rent from 4.11.1987 as claimed by the landlady and that the requirement of the petition shop for

additional accommodation is bona fide for the purpose of carrying on business by the landlady and her husband. The eviction order was confirmed

by the learned Rent Control Appellate Authority. Hence, the tenant has filed the Civil Revision Petition challenging the said judgement.

The learned counsel for the revision petitioner/tenant contended that no finding has been recorded by the learned Rent Controller as well the

learned Rent Control Appellate Authority about the quantum of rent. The learned counsel also argued that the landlady kept quite for about 2 years

after purchasing the petition building and only in the year 1990, he claimed the rental arrears from 4.11.1987 to 30.9.1990. Since the landlady

refused to receive the rent sent by money order on 26.2.1990 the tenant has filed the petition R.C.O.P.No.13 of 1990 in which he has been

depositing the rent into Court. As regards the additional accommodation, on which ground also the eviction was ordered and confirmed by the

learned Rent Control Appellate Authority, it is submitted that such requirement is not bona fide and the same has not been proved by the landlady.

Further, it is pointed out that if the revision petitioner is evicted from the petition shop, it will cause great hardship to him, in that he has to maintain

his family with the income of the business carried on by him in the said shop. The learned counsel for the revision petitioner relied on the decision of

this Court in the case of S.M. Subbiah Vs. S. Nandappan and others, , in which this Court has observed:-

Petition for eviction on the ground of additional accommodation. Plea of comparative hardship. Necessity of plea. Onus to establish requirement

and comparative advantage. Lack of pleading on the part of landlord by itself would not be fatal if there is pleading by tenant and evidence

available on record on which courts have applied mind. If on consideration of materials, Rent Controller finds that hardship of tenant will outweigh

advantage to landlord, then he shall reject application. Consideration of relative hardship would arise only after court finds that landlord has made

out case for order of eviction. Court has to consider not only hardship of tenant but also advantages to landlord. Even though landlord might

succeed in establishing his requirement for additional accommodation yet relying on proviso his application can be rejected on comparative

hardship. Advantage which landlord may get by securing order of eviction will be purely within landlord''s knowledge. Only when advantages of

landlord are established tenant would be in position to put forward his hardship. Therefore initially burden lies on landlord to establish advantages

which he would secure by getting order of eviction and then tenant has to establish his hardship. Relative hardship can be established by oral

evidence eventhough there may not be pleading in this regard by either landlord or tenant.

The other decision relied on by the learned counsel for the revision petitioner is C. Chandramohan Vs. Sengottaiyan (Dead) By Lrs. and Others, : ,

in which the Apex Court has ruled:-

Eviction on the ground of wilful default can be ordered only on satisfaction that default to pay rent was wilful. Wilful default to pay or tender rent is

mixed question of law and fact. High Court can interfere with such finding and reverse such findings if findings recorded by the Rent Controller or

Appellate authority are erroneous illegal or perverse.

The learned counsel for the respondent/landlady has contended that though the rent for the petition shop is Rs.175/- after purchase of the same

by the landlady, since the tenant sent Rs.150/- by money order as rent towards three months from November, 1989 to January, 1990, the same

was refused, in that the tenant did not pay the rent from the date of her purchase of the petition shop, viz., from 4.11.1987 to 30.9.1990 totalling

to the tune of Rs.6,107.50. In this regard, the learned counsel also submitted that the tenant has filed R.C.O.P.No.13 of 1990 stating that the

tenant paid the rent upto October, 1989 and that the landlady refused to receive the rent sent by money order on 26.2.1990 for the months of

November, 1989 to January, 1990. The learned counsel also pointed out that the R.C.O.P.No.13 of 1990 for depositing the rent has been filed

stating that the door number of the petition premises is 158/2, Gin Factory Road, Tuticorin, whereas the petition premises subject matter of this

revision is 58/1, Gin Factory Road, Tuticorin. As regards the requirement for additional accommodation, it is argued by the learned counsel that

since the landlady is the owner of the adjacent shop bearing door No.58/2 in which the business is carried on by her and her husband, which is not

sufficient and since the petition shop being the adjacent shop, if the wall is removed or if an opening is made, the petition shop along with the shop

bearing door No.58/2 as one building can be used for the business carried on by her and her husband. The learned counsel relied on the decision

in the case of M.Meeran Mohideen and another - vs. - N.Jayaprakash Narayanan(decd.) and others reported in (2002)1 M.L.J. 522, in which

this Court has held:-

It may be that the tenants are carrying on their business in the petition mentioned premises for a long time, but that cannot be a ground for the

tenants to allege that they would be put to much hardship if they are vacated. The Appellate Authority has rightly accepted the case of the landlord

with regard to bona fide requirement by way of additional accommodation. So, the fact that the tenants would be put to hardship cannot be a

ground for rejecting the bona fide requirement of the landlord for additional accommodation when it has been amply established in this case that the

premises in the occupation of the landlord is insufficient for running his hotel business and the requirement for additional accommodation is bona

fide.

The materials available clearly prove that the parties understood the case and the tenants are well aware that the landlord requires the premies for

additional accommodation and when there is such clear understanding between the parties is available, with regard to the case pleaded, whether

defective or vague, is not fatal to the case of the landlord applying the principles laid down by the Apex Court in Ram Narain Arora Vs. Asha Rani

and Others, .

Eventhough separate door numbers are assigned for the premises occupied by the landlord and tenants, all those door numbers are in a single

building. The landlord is occupying the first floor and the tenants are occupying the ground floor. So, it cannot be said that they are separate

buildings and the landlord is not entitled to ask for additional accommodation.

The respondent herein purchased the petition premises bearing door No.58/1, Gin Factory Road, Tuticorin as per sale deed dated 4.11.1987.

It is the case of the respondent herein that the revision petitioner attorned the tenancy and agreed to pay the rent at Rs.175/- per month. In her

evidence as P.W.1, she has stated that Rs.125/- per month was paid as rent to the previous owner and before her purchase. Such rent as claimed

by the landlady is disputed and according to the revision petitioner examined as R.W.1 and as per the counter, the rent was only Rs.50/- per

month, which was paid to the previous owner, and he was requested to pay the same rent by the respondent herein. Though R.W.1 has admitted

in his evidence that previous landlord was in the habit of issuing receipt and also filed one receipt dated 11.5.1985 as Ex.P-3 in R.C.O.P.No.13 of

1990 filed u/s 8(5) of the Tamil Nadu Buildings (Lease and Rent Control Act, 1960 for depositing the rent into Court, the receipts covering the

period till October, 1987 have not been filed by him. However it is admitted by R.W.1 in his cross-examination that after the purchase of the

petition premises by the respondent herein, he paid Rs.125/-. Therefore, it is clear that the rent payable for the petition shop is Rs.125/- which

admittedly, the revision petitioner herein as tenant paid to the landlady herein.

As regards the door number of the petition premises, it is stated as door No.58/1, Gin Factory Road, Tuticorin. In the counter, it is stated by

the tenant that he is only in occupation of door No.58/2 and not in door No.58/1. In evidence, R.W.1 has admitted that he is in occupation of the

petition shop in which he is having ""Sarpath Stall"" (rh;gj; !;lhy;;) for the past 17 years. In his cross-examination, he has admitted that he paid the

profession tax mentioning the door number of the petition shop as door No.58/1. The report of the advocate-commissioner filed in

R.C.O.P.No.13 of 1990 was marked as Ex.C-1. In the report, the advocate-commissioner has stated that on the north of the shop bearing door

No.58/2, the shop of the revision petitioner herein is situated, in which he is doing business in sale of cool drinks in the name of ""Sree Murugan

Sarpath Stall"" at the time of visit of the advocate-commissioner. The tenant also produced receipt for the payment of profession tax during the year

1990-91 dated 20.3.1991 in which, the door number is mentioned as 58/1, Gin Factory Road. Therefore, it is clear that the revision petitioner

herein is in occupation of the petition shop bearing door No.58/1, Gin Factory Road, Tuticorin which admittedly belongs to the respondent herein,

in view of her purchase as per sale deed dated 4.11.1987.

It is the case of the landlady that after the purchase of the petition shop on 4.11.1987, though the revision petitioner/tenant agreed to pay the

rent at the rate of Rs.175/- per month, he did not pay the rent and as such, he committed default in payment of rent wilfully from 4.11.1987 till

30.9.1990 which works out to Rs.6,107.50. Since, the tenant sent Rs.150/- by money order on 26.2.1990 as representing the rent for three

months covering the period from November, 1989 to January, 1990, the same was returned.

According to the tenant, since the landlady refused to receive the rent of Rs.150/- sent by money order for the months of November, 1989 to

January, 1990, he filed R.C.O.P.No.13 of 1990 for depositing the rent into Court and the ledger extract relating to such deposit in

R.C.O.P.No.13 of 1990 was marked as Ex.A-3. It is seen from Ex.A-3 that in R.C.O.P.No.13 of 1990, the rent from November 1989 to

February, 1990 was deposited on 26.4.1990 as per chalan dated 25.4.1990; the rent for the month of April, 1990 was deposited on 20.6.1990

as per chalan dated 19.6.1990; the rent for the months of May and June, 1990 was deposited on 20.6.1990 as per chalan dated 19.6.1990; the

rent for the month of July, 1990 was deposited on 14.8.1990 as per chalan dated 13.8.1990; the rent for the months of September and October

1990 was deposited on 15.11.1990 as per chalan dated 7.11.1990; the rent for the month of August, 1990 was deposited on 19.11.1990 as per

chalan dated 20.9.1990; the rent for the months of November and December, 1990 was deposited on 12.12.1990 as per chalan of the same date

and the rent for the months of January and February, 1991 was deposited on 13.2.1991 as per chalan dated 8.2.1991. It appears, the rent for the

month of March, 1990 was not deposited by the tenant in that R.C.O.P.No.13 of 1990 and the rent for the months of November, 1989 to

February, 1990, which after the refusal of the money order sent on 26.2.1990, was deposited only on 26.4.1990. Similarly, the rent for the month

of April, 1990 which was payable by the end of May, 1990 was deposited only on 20.6.1990; the rent for the month of September, 1990 which

was payable by the end of October, 1990 was deposited only on 15.11.1990.

In the counter, filed in the Rent Control Original Petition, subject matter of this Civil Revision Petition, it is stated that after purchase of the

petition shop by the landlady, since she demanded enhanced rent, which was not agreed by him, he sent the rent by money order. In his evidence,

the tenant has stated that he paid the rent at the rate of Rs.125/- per month after purchase of the property by the landlady. Even assuming the rent

of Rs.200/- for the months of November, 1989 to February, 1990 was deposited in R.C.O.P.No.13 of 1990 on 26.4.1990, even then, the tenant

has committed default in payment of rent, in that he deposited the rent only at the rate of Rs.50/- per month whereas admittedly, as per his

evidence he paid Rs.125/- per month to the landlady. Further, though the rent for the months of November, 1989 to January, 1990 sent on

26.2.1990 by money order was refused, the tenant deposited Rs.200/- towards the rent for four moths relating to the period from November,

1989 to February, 1990 only on 26.4.1990. It appears, the tenant has not deposited the rent for the month of March, 1990 and the rent for April,

1990 payable by the end of April, 1990 was deposited only on 20.6.1990. The rent for the month of September, 1990 payable by the end of

October, 1990 was deposited only on 15.11.1990. As such, such default is to be considered as wilful, in that there have been supine indifference

and callousness on the part of the tenant/revision petitioner herein in depositing the rent for the months of November, 1989 to February, 1990 at

the rate of Rs.50/-, though admittedly as per his evidence he paid the rent at the rate of Rs.125/- per month to the landlady after purchase of the

petition shop by her and he has also not deposited the rent in time as set out above.

As regards the additional accommodation, it is seen from Exs.C-1 and C-2, the report and the rough plan filed by the advocate-commissioner

in R.C.O.P.No.13 of 1990 that the petition shop bearing door No.58/1 occupied by the revision petitioner herein as tenant and the adjacent shop

bearing door No.58/2 in which the landlady and her husband are carrying on business in the name of ""Santhanamari Coffee, Tea Stall"" are situated

on the eastern side facing west and abutting the Gin Factory Road. The petition shop is on the north of the shop bearing door No.58/2 and only

wall is intervening in between the two shops. If an opening is made in the wall or if the wall running east to west between the two shops is removed,

then both the shops can be used as one building. Though, it is claimed that the landlady and her husband was carrying on ""Santhanamary Coffee,

Tea Stall"" in the premises bearing door No.58/2 on the south of the petition shop and that the petition shop is required for additional

accommodation, there have been no evidence as regards the area of both the shops, on either side.

The landlady also not let in evidence with regard to the improvement in the business and as such, the petition shop is required for additional

accommodation since for the coffee and tea shop which is carried on by her and her husband in the shop bearing door No.58/2 is not sufficient, as

such, the requirement of the petition shop for additional accommodation as sought for by the landlady cannot be said to be bona fide and so on

that ground she cannot seek eviction.

In the result, the Civil Revision Petition is dismissed confirming the order of eviction only on the ground of wilful default.