Dorai Knitting Company though its Partner R. Doraiswami vs E. Ramasubramanian

Ratnam, J.—This civil revision petition arises out of the proceedings initiated by the Respondent against the Petitioner herein u/s 10(3)(c) of

the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Tamil Nadu Act XXIII of 1973 (hereinafter referred to as

the Act) for an order of eviction in respect of a shop bearing old Door No. 70 and new Door No. 247, West Car Street, Tirunelveli Town, in the

occupation of the Petitioner. The facts are in a short compass. The shop in question belonged to one Nelliappa Pillai and it was usufrctuarily

mortgaged in favour of One Kanthimathina than Pillai on 2nd July 1965 for a sum of Rs. 3,000- redeemable on or before 1st July, 1970. Nelliappa

Pillai executed a sale deed dated, 31st July, 1967 for a sum of Rs. 7,750 in favour of the Respondent herein and out of the sale consideration, a

sum of Rs. 3,000- was reserved with he Respondent to discharge the usufructuary mortgage, dated 2nd July, 1965. The Respondent offered the

iothi amount to N.S. Kanthimathinatha Pillai and demanded vacant possession of the shop on question by a notice to which Kanthima hinatha Pillai

replied of the effect that vacant possession could not be given as the shop had been let out to the Petitioner herein. Thereafter, the Respondent

herein filed Original Petition No. 33 of 1970, District Munsif''s Court. Tirunelveli, u/s 83 of he Transfer of Property Act wherein Kanthimathinatha

Pillai, while expressing his willingness to receive the mortgage amount deposited by the Respondent herein stated that cavacant possession cannot

be given and therefore Original Petition No. 33 of 1970 was dismissed on 15th November, 1970. Since the Respondent had deposited the

amount due under he usufructuary mortgage and vacant possession was not given by Kanthimathinatha Pillai, the Respondent claimed that he is

entitled to get damages a the rate of Rs. 30- per month in lieu of interest and filed the suit for redemption. Original Suit No. 1036 of 1970.

Additional District Munsif''s Court, Tirunelveli, impleading Kanthima hinatha Pillai and the Petitioner herein as Defendants 1 and 2 and for recovery

of vacant possession of the shop with damages at a the rate Rs. 30 per month from 11th February, 1970, when the amount due under the,

usufructuary mortgage was deposited till delivery of possession.

That suit was resisted by N.S. Kanthimathinatha Pillai on the ground that when the usufructary mortgage dated 2nd July, 1965 was executed.

One Nallaperumal was in enjoyment of the shop and after he vacated the shop was rerented out to one Ziffree, and after the shop was vacated by

the said Ziffree it was at rent to the Petitioner in January 1969 for a rent of Rs. per month and since the Petitioner was a tenant on the premise the

Respondent had to take appropriate proceedings against him for eviction. The Petitioner herein who figures as the second Defendant, resisted the

suit for redemption instituted by the Respondent by contending that he was ready and willing to at torn to the Respondent and since he was a

tenant in possession, the Respondent should resort to appropriate proceedings under the provisions of the Tamil Nadu Buildings (Lease and Rent

Control) Act, if the Respondent wanted to evict the Petitioner. The learned District Munsif, who tried the suit, held that N.S. Kanthimathinatha

Pillai was not given actual possession of the suit property by the original owner Nellappa, that Kanthimathinatha Pillai should deliver vacant

possession of the suit property and that the Petitioner was also liable to be evicted from the shop in question. It was also held that the Respondent

was entitled to claim damages at the rate of Rs. 30 per month from 11th August 1970 as claimed in the plaint. In these conclusions, the suit was

decreed against which the Petitioner here in preferred an appeal in Appeal Suit No. 86 of 1972, District Court, Tirunelveli. The learned District

Judge, who heard the appeal, concluded that after redemption of the usufructuary mortgage, the Petitioner had no right to continue in possession of

the property and was therefore liable to be evicted. In this view, the appeal was dismissed. Aggrieved by that, the Petitioner herein preferred an

appeal in Second Appeal No. 318 of 1973 to this Court and in Civil Miscellaneous Petition No. 3647 of 1973, prayed for stay of execution of the

decree in Original Suit No. 1036 of 1970. Originally, interim stay was granted on 13th March 1973 and later by an order, dated 25th June 1973,

the stay granted already was made absolute on condition that the Petitioner paid the future rent into the hands of the Respondent after taking due

receipt for the same without default. Ultimately, the second, appeal came to be heard by Sethuraman J., who held on 6th, October 1975 that the

Petitioner will be entitled to the benefit of the statutory protection under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act

and therefore, the Petitioner could claim rights as a tenant in respect of the shop in question, In this view, the second appeal filed by the Petitioner

was allowed.

Thereafter, the Respondent herein issued a notice on 7th April 1976 to the Petitioner stating that the Petitioner is a statutory tenant and that the

Respondent bona fide requires the shop in question for his own javuli business and therefore, the Petitioner should vacate the shop. A reply was

sent by the Petitioner on 20th April 1976 disputing the bona fide requirement of the Respondent and refusing to accede to the request of the

Respondent. There upon, the Respondent initiated proceedings in Rent Control Original petition No. 88 of 1976, before the Rent Controller

(District Munsif), Tirunelveli u/s 10(3)(c) of the Act on the ground that the Petitioner is a tenant under the Respondent, that the Respondent

purchased the premises in question only for the purpose of carrying on his business and that he bona fide requires the shop in the occupation of the

Petitioner for the purpose of his business as additional place of accommodation. The Respondent also stated in that application that the hardship

that may be caused to the Petitioner by an order of eviction will not outweigh the advantage to the Respondent and therefore, an order for eviction

should be passed.

The Petitioner herein resisted that application by contending that the Respondent has been carrying on business in several contiguous go downs

and, therefore, the requirement by way of additional accommodation by the Respondent is not bona fide. It was also the further case of the

Petitioner that the hardship that may be caused to the Petitioner by an order of eviction will outweigh the advantage to the Respondent and

therefore, the petition has got to be rejected. The Petitioner also expressed his willingness to attorney to the Respondent and referred to the order

passed in Civil Miscellaneous Petition No. 3647 of 1973 and stated that the rents were being sent by the Petitioner to the Respondent by money

order, that the Respondent has been receiving those rents, and that the request for additional accommodation by the Respondent was motivated

and not genuine. An objection was also raised by the Petitioner that the Respondent is not entitled to any relief under the Tamil Nadu Buildings

(Lease and Rent Control) Act.

Before the Rent Controller (District Munsif), Tirunelvei, the Respondent, besides examining himself as P.W.1 relied upon exhibits A-1 to A-5

while the manager of the Petitioner was examined on its behalf as R.W.1 and exhibit B-1 was also relied upon. On a consideration of the oral as

well as the documentary evidence, the Rent Controller held that the application for eviction filed by the Respondent herein, though styled as one u/s

10(3)(c) of the Act, really fell within Section 10(3)(a)(iii) of the Act and that the Respondent has satisfied all the requirements of that provision and

his need was also bona fide. On this conclusion, an order for eviction was passed against the Petitioner. Aggrieved by this, the Petitioner preferred

an appeal in Civil Miscellaneous Appeal No. 94 of 1978 to the appellate authority (Principal Subordinate Judge), Tirunelveli. The appellate

authority concern with conclusion of the Rent Controller with reference to the maintainability of the application u/s 10(3)(a)(iii) of the Act and also

held that the requirement by the Respondent of the shop in question for the purpose of carrying on his own business is established and that such

requirement was also a bona fide one. On these conclusions, the order of eviction was upheld and the appeal was dismissed. It is the correctness

of this order that is challenged in this civil revision petition.

The learned Counsel for the Petitioner first raises fundamental as well as a vital jurisdictional objection, in that the relationship between the

Petitioner and the Respondent is not that of tenant and landlord and therefore, the application for eviction filed by the Respondent herein is not

maintainable, though the learned Counsel for the Petitioner would admit that the objection in this form had not been raised before the authorities

below. On the other hand, the learned Counsel for the Respondent contends that the relationship between the parties as statutory tenant and

landlord had already been adjudicated upon by this Court in Second Appeal No. 318 of 1973 and on the basis of such an adjudication, and even

otherwise, the relationship between the parties is such that the application for eviction filed by the Respondent is maintainable. In answer to this, the

learned Counsel for the Petitioner submits that it has been held by a full Bench of his Court in Venkatarama Reddiar v. Abdu Ghani Rowtiaer

(1980) 2 M.L.J. 179 that on he redemption of a usufructuary mortgage, a tenancy created by a mortgage with possession comes to an end and

there must be fresh forging of the relationship of landlord and tenant between the mortgagor and the erstwhile tenant and that, therefore, the

erstwhile tenant cannot otherwise claim protection under the Act. Generally, the question whether the relationship between the Petitioner and the

Respondent is that of a tenant and landlord or not, if disputed is one that has to be decided with reference to the materials made available by the

parties raising such a dispute. But, in the present case, at no point of time any dispute was raised by the Petitioner with reference to the subsistence

of such relationship between it and the Respondent. Exhibit A-2, dated 7th April, 1976 issued by the Respondent herein to the Petitioner, in

paragraph 3, the Respondent has categorically stated that the Petitioner is a tenant and that the Respondent requires the building in the occupation

of the Petitioner for his javuli business as additional accommodation. In the reply notice sent by the Petitioner under exhibit A-4, dated 20th April,

1976, there is not a whisper about the absence of the relation ship of tenant and landlord between the Petitioner and the Respondent. Apart from

this, in paragraph 6 of the application for eviction, the Respondent has set out this case that the Petitioner is a tenant and that is entitled to rights

under the Act and this has not been in any manner challenged by the Petitioner in the course of the counter filed by it. Further, the Respondent,

who had been examined as P.W.1 has stated in the course of his chief-examination that the Petitioner is in possession of the shop in question as his

tenant and there has been no cross-examination whatever on this aspect. In the absence, therefore, of any dispute having been raised by the

Petitioner with reference to his status as a tenant, the argument of the learned Counsel for the Petitioner that the relationship between the Petitioner

and the Respondent is not that of tenant and landlord, cannot, be countenanced. Even assuming that the decision in Second Appeal No. 318 of

1973 inter-parties had been subsequently declared by a Full Bench of this Court not to have laid down the correct law, yet, that adjudication

cannot be either ignored or lost sight of. Indeed, the Supreme Court in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, has upheld

the principle that even an erroneous decision on a question of law operates as re judicata between the parties to it. Again in State of West Bengal

v. Hemant Kumar AIR 1966 S.C. 1961 the Supreme Court has laid down that a wrong decision by a court having jurisdiction is as much binding

between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law

provides. It has also been held by the Supreme Court in M.M. Pathak v. Union of India AIR 1978 S.C. 863 that the rights which become cry

tallied as a result of a judgment being allowed to become final cannot be disregarded or ignored and that the award of annual cash bonus to Class

III and Class IV employed of the Life Insurance Corporation by the Calcutta High Court could not be questioned and had remained untouched by

the provisions of the Life Insurance Corporation (Modification of Settlement) Act. The declaration of the law with reference to the status of a

person in the position of the Petitioner as laid down in Venkatarama Reddiar v. Abdul Ghani Rowther (1980) 2 M.L.J. 179 in effect not approving

of the decision interparties in this case Second Appeal No. 318 of 1973, cannot also assist the Petitioner is this regard. It is axiomatic that courts

of law are not authorised to alter the rights of parties since they profess to ascertain the law and if the rights of parties based on a binding decision

is allowed to fluctuate with every change or alteration in the authority, it is obvious that the Courts will be instrumental in unsettling the settled rights

and not aiding in the ascertainment of the rights of parties. This has been pointed out by Rankin C.J., in Tarini Charan Bhattacharjee and Others

Vs. Kedar Nath Haldar, is in following terms;

The legislature by statute, may alter statute the rights of parties and when it does so, it makes such provisions as it thinks proper to prevent

injustice. Courts of law are in no way authorized to alter the rights of parties. They profess, at all events to ascertain the law, and if the binding

character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in the current of authority

the courts will become an instrument for the un settlement of rights rather than for the ascertainment thereof.

However, the learned Counsel for the Petitioner would press into service the decision in Palaniappa Chettiar (died) and Others Vs. Babu Sahib

and Others, and contend that if the objection raised son relation to the jurisdiction of a Court, then there can be no estoppels in relation to that.

There cannot be any dispute with reference to the correctness of the statement of law on the facts of that case. But, in the present case, it has

already been pointed put that the parties have proceeded long the footing that the relationship of tenant and landlord existed between the Petitioner

and the Respondent and that is why, no objection with reference to that was raised by the Petitioner in his counter and there was cross-

examination of the evidence of the Respondent, examined as P.W.1, who categorically stated that the Petitioner was in possession as a tent under

him. Further, in the course of the proceedings during the pendency of Second Appeal No. 318 of 1973, the Petitioner had agreed to pay the

monthly rents to the Respondent and the Respondent also had not demurred to the same. This has also been relied upon by the Petitioner in

paragraph 9 of the counter affidavit wherein the payment of rent by the Petitioner through money order and the acceptance thereof by the

Respondent has been referred to. This has not been established to be in any manner incorrect or otherwise unacceptable. In the circumstances of

the present case, this cannot be equated to mere payment of rents only by the Petitioner, but would be sufficient to forge the relationship of tenant

and landlord between the Petitioner and the Respondent. Under the aforesaid circumstances it is not possible to held that the Rent Controller did

not have jurisdiction to entertain the petition.

The next contention of the learned Counsel for the Petitioner is that having regard to the substance of the claim made by the Respondent in the

course of his application for eviction against the Petitioner, the petition falls within the purview of Section 10(3)(c) of the Act and that since the

Respondent is not in occupation of any portion of the premises in the occupation of the Petitioner, even that relief will not be available to the

Respondent. On the other hand, the learned Counsel for the Respondent contends that no doubt the pharaseology employed in the notices as well

as in the application for eviction is neither clear nor happily wounded, but that the substance of the claim is that the Respondent is carrying on his

business in other premises and that he would like to have his own premises in the occupation of the Petitioner for that business and therefore, the

application had been rightly construed by the authorities below to be one u/s 10(3)(a)(iii) of the Act and relief given. It is also further submitted by

the learned Counsel for the Respondent that the use of word additional and the reference to relative hardship are all of no consequence particularly

when the Respondent has clearly established that his need is for a building of his own in addition to what he is already having by way of rented

premises.

In order to appreciate these contentions, it is necessary to refer to the notices exchanged between the parties and the precise basis upon which

the application for eviction had been filed by the Respondent and refuted by the Petitioner. Exhibit A-2 is the notice, dated 7th April, 1976 issued

by the Respondent herein to the Petitioner calling upon the Petitioner to vacate and deliver vacant possession of the shop by 1st May, 1976 and

exhibit A-4, dated 20th April, 1976 is the reply thereto by the Petitioner. In paragraph 3 of exhibit A-2 the learned Counsel who had issued it on

behalf of the Respondent has stated thus:

My client is doing business for the last several years in Javuli and thus building is next adjacent to this building where he is now carrying on

business. He requires this building for his Javuli business as additional accommodation. The premises in which he is now carrying on his business is

not sufficient for him and he is put to great hardship and inconvenience. His requirement of this building is bona fide.

In answer to this the Petitioner in his reply Exhibit A-4, has stated as under:

Your client''s claim is not bona fide. He is not in need of additional accommodation.

In paragraph 7 of the application for eviction filed by the Respondent herein, though styled to be one u/s 10(3)(c) of the Act, the following

averments have been made:

The Petitioner is doing Javuli business in the shop adjacent to the scheduled shop. He finds it very much inconvenient to do his business and store

his Javuli therein. He requires additional place of accommodation. It was with that purpose only he purchased this shop premises. The Respondent

would not vacate the premises in spite of demands. The Respondent knows well that the Petitioner''s requirement is only a bona fide requirement.

The advantage that will be obtained by putting the Petitioner in possession will not outweigh the hardship that will be incidentally caused to the

tenant. Otherwise the Petitioner will suffer irreparable loss and hardship.

In paragraphs 6 and 8 of the counter filed by the Petitioner herein before the Rent Controller, the Petitioner has stated as follows:

The Petitioner is having his Javuli business in Door Nos. 243 to 246, all contiguous buildings and all the said buildings have upstairs. Besides, the

Petitioner is having spacious go downs in the adjacent Door Nos. 247-A, B, and 239. The Petitioner does not require additional accommodation

and the claim is not bona-fide. His business does not require the building occupied by this Respondent. He is also having some other buildings in

his possession. After all, more than one building is not necessary for his use, considering the nature and the volume of his business. In the above

circumstances the hardship which may be caused to this Respondent by order of eviction will outweigh the advantage to the landlord and hence the

application has to be rejected.

The Petitioner is carrying on his Javuli business in more than one building and hence it is not correct to say that he is carrying on his business in

the adjoining shop also. He has go downs also for his use and possession. Hence the allegations that he requires additional accommodation is not

at all bona fide. The false allegations is put in just for the purpose of this petition. The Petitioner purchased the shop with the intention of ousting this

Respondent and lessing it for higher rent. His purpose is not served by the previous proceedings and hence this new and false attempts. The

Petitioner''s request is not bona fide, and on the other hand it is mala fide to the hilt. His object is to evict at any cost. The allegations in para 7 of

the petition is absolutely false.

The notice exhibit A-2, which preceded the institution of the proceedings proceeded on the footing that the premises in which the Respondent

herein was already carrying on business is not sufficient for him and that therefore the Respondent required the building as additional

accommodation. This has also been reiterated in paragraph 7 of the petition in addition to referring to the relative hardship which would be a

relevant consideration only for purposes of an application u/s 10(3)(c) of the Act. It is not in dispute that before an application u/s 10(3)(a)(iii) of

the Act is entertained and relief given, it is incumbent on the landlord to establish that the building is non-residential, that the landlord is carrying on

business on the date of the application for eviction, that the landlord is not occupying any other non-residential building belonging to him in respect

of the business and that the landlord''s claim is bona fide for his business needs and is not based on any oblique motive with a view to evict the

tenant. However, in a case falling u/s 10(3)(c) of the Act, the landlord, who wants additional accommodation either for residential or non-

residential purposes must be in occupation of a part of such building for such a purpose and if such a landlord requires additional accommodation

for residential purposes or for purposes of a business which is carrying on then an application can be maintained by a landlord under that provision.

In the present case it is not in dispute that the Respondent is not in occupation of any portion of the premises in question which is admittedly in the

exclusive occupation of the Petitioner. The averments in the petition proceeded on the basis of the requirement of the Respondent herein as and by

way of additional accommodation meaning thereby in addition to the existing accommodation available to the Respondent in the premises in

question though the learned Counsel for the Respondent would attempt to explain that the word additional in the context should be construed as in

addition to the rented accommodation available with the Respondent. Having regard to the stand taken by the Respondent that the shop in the

occupation of the Petitioner is required for purposes of additional accommodation and the admitted reference by the Respondent to the relative

hardship which would only be a relevant factor for the purpose of application u/s 10(3)(c) of the Act it is rather difficult to hold that the real

substance of the application filed by the Respondent is for his own occupation u/s 10(3)(a)(iii) of the Act. The learned Counsel for the Respondent

would, however, urge relying upon the decision of Ramaprasada Rao, J., (as he then was) in Haneefa v. L. Sharmugam (1977) 1 M.J. 13 S.N.

that the mere misdescription of a provision of law in the bending of the petition should not be the sole criterion to dismiss an application on the

ground that it was not maintainable in law. Attention is also invited in this connection to the decision in The Vice-chancellor, Jammu University and

Another Vs. Dushiant Kumar Rampal, to the effect that when as authority makes an order which is otherwise within its competence, it cannot fail,

merely because it purports to be made under a wrong provision of law, if it can be shown to be within its power under any other provision. In

other words, it has been stated that a wrong label cannot vitiate an order which is otherwise within the power of the authority to make. It is true

that the label or the provision quoted in a petition is not conclusive with reference to the provision of law applicable; but the correct provision of

law has to be ascertained by scanning the substance. If so, done, the application for eviction filed by the Respondent herein does not conform to

and even set out the requirements of Section 10(3)(a)(iii) of the Act, but clearly indicate that what was contemplated by the Respondent was only

the securing of additional accommodation in the premises as contemplated u/s 10(3)(c) of the Act. Indeed, a careful security of the notice

exchanged between the parties prior to the institution of the proceedings for eviction and the stand taken by the Respondent in his application for

eviction as well as the denial thereof by the Petitioner in his counter, would clearly indicate that the Respondent intended to initiate and prosecute

only an application for additional accommodation within the meaning of Section 10(3)(c) of the Act and not only for the purpose of owner''s

occupation as contemplated u/s 10(3)(a)(iii) of the Act. As stated above, the petition has been filed u/s 10(3)(c) of the Act, while the Respondent

has given evidence as if the application falls u/s 10(3)(a)(iii) and therefore, apart from the circumstance that the Respondent is not in possession of

any portion of the property in the occupation of the Petitioner, this would suffice to entail a dismissal of the application filed u/s 10(3)(b) of the Act.

It is found that the evidence given by the Respondent herein does not establish his claim made u/s 10(3)(c) of the Act under which the petition has

been filed. Under those circumstances, the order of eviction passed by the authorities below u/s 10(3)(a)(iii) of the Act cannot be sustained and the

application should be construed to be one u/s 10(3)(c) of the Act and since the Respondent is not in possession of any portion of the building in the

occupation of the Petitioner, even that application u/s 10(3)(c) of the Act cannot be sustained. Though the Petitioner is a tenant under the

Respondent yet, the application for eviction filed by the Respondent against the Petitioner u/s 10(3)(c) has to fail, The order for eviction passed

against the Petitioner has, therefore, to be set aside. Consequently, the civil revision petition is allowed. Each party is directed to bear the costs in

this civil revision petition.