Eswaran vs Thangavel Maistry

S. Palanivelu, J.—The petitioner is the landlord. The respondent is the tenant in the demised premises and the same is admeasuring 8 x 7

feet. The petitioner filed the petition for eviction under Sections 10(2)(1) and 10(3)(c) of the Tamil Nadu Buildings (Lease & Rent Control) Act,

1960 (in short ''the Act''). One is on the ground of wilful default and Anr. is that the the premises are required for own occupation.

In the counter, the allegations in the petition are denied and it is stated that the petitioner''s requirement is not bona fide.

The learned Rent Controller rejected the claim of the landlord on the ground of wilful default, but accepted his contention as regards the

personal occupation and passed an order of eviction directing the respondent herein to vacate the premises within two months from the date of that

order. Aggrieved against the said order, the tenant preferred appeal in R.C.A.17 of 2000 on the file of the Sub-Judge, Tanjore. The learned

appellate authority allowed the appeal rejecting the plea taken by the landlord with respect to the personal occupation of the landlord. Hence, the

landlord has carried the matter in revision before this Court.

The crux of the contentions of the respondent/tenant is two folded. Firstly, the landlord has required the building which is a non-residential one

for his personal occupation towards residential purpose and secondly, the comparative hardships of the tenant has not been pleaded in the petition

and proved by the landlord.

The learned Counsel for the petitioner Mr. R.S. Ramanathan would submit that it is well settled that even though the buildings was leased out for

non-residential purpose, when the landlord bona fide requires the building for his own residential purpose, there is no legal impediment for putting

an order of eviction. In support of his contention, he placed much reliance upon a decision of the Supreme Court reported in 2002 (2) CTC 312,

Kannaiammal v. Chellaram, wherein Their Lordships have elaborately dealt with the scope of Section 10(3)(c) of the Act referring to earlier

decision reported in Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, ., in which there was a detailed discussion in this

respect. The following is the operative portion of the said judgment, which goes thus:

...If a landlord is occupying only a part of residential building he may seek ejectment of tenant of his requirement of additional accommodation

for residential purpose though the tenancy premises are being used by tenant for non-residential purpose. Similarly, a landlord who is occupying

only a part of a building for non-residential purpose may have the tenant evicted if he requires additional accommodation for non-residential

purpose it being immaterial that the tenant is occupying a part of the premises for residential purpose.

As per the principles laid down by the Supreme Court, it has to be necessarily observed that even though the demised premises was leased out

to the respondent/tenant for a non-residential purpose, if the landlord requires it, provided it is bona fide requirement for own occupation for

residential purpose, there is no impediment to accept the claim of the landlord. In this case, the demised premises is required for the petitioner for

opening a door way for one of the co-sharers which is bona fide. It is also learnt from the evidence that the landlord and other co-sharers are

intending for a partition of the property including the demised premises.

As regards the next limb of the contention relating to the comparative hardship is concerned, it is much stressed that the petition is bereft of the

pleadings. A reading of the petition shows that it is silent in this regard. The learned Counsel for the petitioner would argue in vehemence that it is

incumbent upon the landlord to plead and prove the relative hardships which would be expressed by the tenant and if the landlord in an

advantageous position, then there could be consideration for passing eviction order in his favour. Before going to have discussion in this aspect, it is

profitable to extract the relevant provision of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960:

Section 10(c) A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything

contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the

building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business

which he is carrying on, as the case may be.

....

Provided that, in the case of an application under Clause (c), 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.

The statute obligates the Court to record findings on the basis of the materials available in the case as to the hardship which is likely to be caused

to the tenant by granting the eviction order.

The learned Counsel for the petitioner would garner support from a decision of the Supreme Court reported in Hiralal Moolchand Doshi Vs.

Barot Raman Lal Ranchhoddas (Dead) by L.Rs., , to show that there is no necessity for the landlord to incorporate the pleadings in the petition

and that the Court has to see and weigh the relative hardships among the parties. The relevant portion of the judgment goes thus:

In a suit for eviction on the ground of bona fide personal requirement the landlord is not supposed to have pleaded his own comparative hardship

in the plaint itself. Section 13(2) comes into play at the stage when the Court is satisfied that the ground contained in Clause (g) of Sub-section (1)

of Section 13 has been made out. It is at that stage that the Court has to examine the question of comparative hardship. It is thus not necessary to

plead in the plaint itself. Often the parties at the stage of recording of evidence of bona fide personal requirement also lead evidence as to the

comparative hardship of the landlord or the tenant. But such averments are not required to be pleaded in the plaint itself to give cause of action to

the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement.

He also cites a decision of this Court reported in (2002) 2 M.L.J. 196, Ameena Beebi alias Jamurthu Begum v. P.M. Khaja Mohideen in

which the learned Judge after referring to a Supreme Court decision, held that pleading with respect to comparative hardships in the petition for

eviction cannot be stated to be a mandatory requirement of the statue. The following is the relevant portion of the said judgment, which goes thus:

My reading of the relevant provisions is justified will be evident from the decisions of the Supreme Court in B. Kandasamy Reddiar v. O. Gomathi

Ammal (1998) S.C.C. 138 and in J. Jermons Vs. Aliammal and Others, , where the Supreme Court with particular reference to Tamil Nadu Act

after referring to proviso to Section 10(3)(e) of the Act held that the consideration of the proviso is mandatory. In the other decision of the

Supreme Court it has been held as follows:

The authority who considers the eviction petition under Clause (c) of Section 10(3) of the Act has to record the finding under the provision and in

the absence of such a finding the order of eviction cannot be sustained.

Thus, the emphasis is more on the duty of the authorities than on the pleadings and in any event, after the decision of the Supreme Court in Hiralal

Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (Dead) by L.Rs., , it cannot be held that the specific pleadings regarding comparative

hardship is a mandatory requirement.

As per the view taken by this Court, proviso to 10(3)(c) of the Act, mandates the Rent Controller to get satisfaction and to record its reasons

as to the hardships likely to be caused to the tenant. The reading of the provisions would not show that the pleadings as to the comparative

hardship in the petition for eviction is essential.

In view of the above said discussion and in the light of the weighty judicial pronouncements of the Supreme Court and the views taken by this

Court, this Court is of the considered view that the order passed by the Rent Control Appellate Authority is not sustainable which has to be set

aside and it is accordingly set aside. The civil revision petition deserves to be allowed.

In the result, this civil revision petition is allowed. No costs. Time for vacating the premises is two months.