Khusid Begum and 7 others vs Basheer Alam

K.P. Sivasubramaniam, J.—This revision is directed against the judgment of the Rent Control Appellate Authority, (Subordinate Judge),

Tiruppattur, in R.C.A. No. 5 of 1994 reversing the order of the Rent Controller, (District Munsif), Tiruppattur, in R.C.O.P. No. 26 of 1986. The

tenants are the revision petitioners before this Court. The respondent herein, the landlord filed the petition for eviction on grounds of wilful default

and for owner''s occupation, contending that the petition premises belonging to him was leased out to the revision petitioners/tenants for running a

watch shop on a monthly rent of Rs. 30/- from 5.10.1966. The rent was subsequently raised to Rs. 250/- per month and the said amount was

being paid till April, 1986. Subsequently, the tenant committed wilful default and did not pay rents due from 5.5.86 to 5.8.86, thus leaving arrears

of Rs. 750/-. It was further stated that his two sons Kathir Alam and Mohamed Rafi Alam were running a watch repair shop on rent in front of a

verandah portion of a Readymade Garments shop. The said place was not a safe place and therefore, they require the space for conducting the

repair shop. In spite of several demands, the request of the landlord was not acceded to by the tenants. A notice of termination was issued on

25.6.86 for which no reply was received from the tenants and hence the petition under Sections 10 (2) (i) and 10(3) (a) (iii) of the Tamil Nadu

Buildings (Lease and Rent Control) Act, (hereinafter called ""the Act""), was filed.

In the counter filed by the tenant, he contended that the tenancy commenced not from the year 1966, but from 1932 itself and admitted the

monthly rent to be Rs. 250/-from the year 1982. The rent was being paid regularly and there was no default and as regards the rent for the month

of May 1986, the landlord refused to receive the rent. Thereupon, the amount was sent by Money Order which was also refused by him. The

tenant filed H.R.C.O.P. No. 22 of 1986 u/s 8 (5) of the Act and had deposited the rent duly and had continued to deposit the subsequent rent.

Hence, there was no default. The sons of the petitioners were not doing any business in watch repair. The landlord was owning a house just behind

the shop and there was a road on the western side also. The said house can be used as a shop and also for any business to be carried on by the

sons of the landlord. The landlord has no idea of using the building, but had filed the present petition only to raise the rent. The tenant had also

spent more than Rs. 25,000/- for effecting repairs which amount had not been paid by the landlord. There was also no notice of terminating the

tenancy. During the pendency of the R.C.O.P., the tenant/revision petitioners, were brought on record as legal representatives of the tenant. The

Rent Controller on consideration of the evidence rejected both the grounds for eviction. The Appellate Authority however, disagreed with the

findings of the Rent Controller and held that the landlord had established both the grounds for eviction. Hence, the above revision petition by the

tenants.

Mr. V. Raghavachari, learned counsel for the tenants, contends as follows:

(a) The tenant had admitted in evidence that as on the date of the eviction petition, there was no default. On the said ground alone, the eviction

petition was liable to be dismissed.

(b) Since the eviction petition itself was not maintainable, the order passed by the Court u/s 11 (3) of the Act was inconsequential and not

enforceable. Therefore, any allegation of non-compliance of the said order, cannot be entertained.

(c) As regards owner''s requirement, the landlord being an occupant of a portion of the same building in which the petition premises was situated,

the petition for eviction u/s 10 (3) (a) (iii) of the Act was not maintainable and only a petition u/s 10 (3) (c) of the Act would be competent. Hence,

the petition was liable to be dismissed on the said ground.

As regards wilful default, on an overall consideration of the facts and circumstances, I am inclined to hold that for the reasons stated below, the

landlord had not made out a proper case of wilful default or any supine indifference on the part of the landlord which alone would result in ordering

eviction.

It is true that the landlord in his chief-examination has stated that there were no arrears on the date of the eviction petition. But in the cross-

examination, he has stated otherwise. Much importance need not be attached to his statement in the chief-examination which could be probably

due to a mistake because he has pleaded otherwise and had also deposed differently in his cross-examination. Even if it was not a mistake, the

mere fact that there was no arrears as on the date of the eviction petition alone need not lead to the conclusion that there was no default. On this

issue, Mr. Raghavachari had relied on a few decisions in support of his contention that if on the date of the petition, there were no arrears or if on

the date of the first hearing of the eviction petition or before the said date, the tenant had tendered all the arrears, then there would be no default.

During the hearing of this revision petition the same point was urged in certain other revision petitions also and I had reserved orders in all the said

petitions including this revision petition in order to hear a wider section of counsel representing both sides. After considering the said issue in detail,

in K.S. Pandian v. Rukmani Bai and others (C.R.P. No. 1549 of 1996 dated 22.9.2000, since reported in 2001-1-L.W. 801), I have held that

there is absolutely no warrant to hold that the only circumstance that there was no arrears as on the date of the eviction petition or that arrears

were tendered on the first hearing date of the petition should result in throwing out the petition for eviction. Therefore, there is no necessity to deal

with the said issue in this petition.

In the present case, it is necessary only to consider as to whether the conduct of the tenant is such that it could be described as amounting to

wilful default. Under Ex. P. 1 notice dated 25.6.86, the lessor had complaint that till then the rent for May, 1986 had not been paid. He had called

upon the tenant to vacate the building on 5.8.86. A perusal of the notice shows that he had mainly projected his need to occupy the premises for

his own requirement. Therefore, the motive for issuing the notice itself was for taking possession of the property. The Said notice had been

received by the tenant on 8.7.1986. It is quite possible that the tenant might have deliberately delayed in receiving the notice and after receipt of

notice on 8.7.1986, on the same date, he had filed the petition u/s 8 (5) of the Act for depositing the rent. It is the case of the tenant that when he

tendered the rent to the lessor he refused to receive the rent. Therefore, he had filed the petition for deposit of rent. The tenant''s version is more

plausible since the delay in the payment was only for the month of May and the rent for the month of June had to be paid on 5.7.1986 which was

ready to be deposited on 8.7.1986. The tenor of the notice for eviction being mainly for the purpose of obtaining vacant possession for his

personal requirement, it is possible that the landlord was not inclined to receive the rent. Even so the tenant had taken steps to deposit the rent

before the Court immediately on the same day when he had received the notice. The R.C.O.P. was filed on 6.8.1986, the very next date after the

notice period was over. As stated earlier, in the notice, the lessor had required the tenant to hand over vacant possession of the terms mainly for

his personal requirement. It must be borne in mind that on the date of the notice there was only delay in payment of rent for one month namely, for

May, 1986 which cannot be treated as wilful default. But yet the lessor had called upon the tenant to vacate the premises. It is therefore, clear that

in order to secure possession of the property, the lessor was not inclined to receive the rent, thereby driving the tenant to file a petition u/s 8(5) of

the Act. In the said background, can the failure to pay the rent for the months of May and June, 1986 be described as wilful default, supine and

deliberate indifference to pay the rent? In my opinion, the answer should be in the negative. The rent for the month of July Was to be paid only on

5.8.1986 on which date the petition for eviction had been filed. The entire circumstances clearly suggest that the lessor was interested only in

getting possession of the property at any cost because of his dire personal necessity and he had evaded receipt of rent and the tenant had also

taken steps to deposit the rent on 8.7.1986 itself.

Therefore, I have no hesitation to hold that as on the date of the filing of the petition, the tenant cannot be accused of having committed wilful,

deliberate and actionable default, even ignoring the statement of the lessor in the chief-examination that as on the date of the petition, there was no

default. Therefore, the lessor''s complaint of wilful default is liable to be rejected.

As regards the situation arising out of the order passed in the petition filed by the lessor u/s 11 (3) of the Act which was filed on 12.12.1986, it

is true that the petition was allowed and ordered on 20.4.1987 and on the same date, the petition filed by the tenant u/s 8(5) of the Act was also

dismissed (Exs. A.3 and A.4). It is also true that notwithstanding the order u/s 11(3) of the Act, the tenant appears to have been irregular in

complying with the said order. Mr. Raghavachari contends that the order u/s 11(3) was inoperative having regard to the fact that the Rent

Controller found that the lessor had not made out a case of default in payment of rent. According to him, a petition u/s 11(3)of the Act was

conceivable only during the pendency of a petition for eviction and the proceedings u/s 11were not independent proceedings. Therefore, according

to him in a case where the lessor fails to make out a case of wilful default, no order can be passed u/s 11(3) or 11(4) of the Act and any such

order would inoperative and in executable.

I am inclined to hold that it is unnecessary for this Court to go into the said issue at this stage for two reasons. Firstly, no consequential order

had been passed u/s 11(4) of the Act. Secondly, the landlord did not take any steps to have a consequential order passed u/s 11(4) of the Act

either before the Rent Controller or the Appellate Authority. The landlord had also filed a petition in C.M.P. No. 20320 of 1999 before this Court

u/s 11(4) of the Act. The said petition was dismissed by me on 28.2.2000 (since reported in Basheer Alam v. M.A. Rahim Sahib and others)

(2001-2-L.W. 210) upholding the objection of the tenant that such a petition was not maintainable at the revisional stage, following the judgment of

a Division Bench of this Court in R. Radha v. C.R. Govindarajulu (91 L.W., 443). Therefore, it is not necessary to consider the effect of the order

passed by the Rent Controller u/s 11(3) of the Act and the subsequent conduct of the tenant.

The other ground of eviction is that two sons of the lessor were running the Watch repair shop on a Box in the verandah in front of a

Readymade garments shop by paying Rs. 12/- per day as rent and also that place lacks safety. Though the tenant had chosen to formally deny the

contention of the lessor, the evidence of the petitioner clearly proves the claim of the lessor and the tenant was not able to seriously challenge the

evidence of the landlord in this context. This is rather a pitiable instance of the welfare Legislation really causing grave inconvenience and hardship

to poor people who are sought to be described as landlords. The premises was let for lease even as claimed by the tenant in the year 1932 from

the mother of the petitioner and the so-called landlord''s family had grown up in size in the course of all these years throwing two of his boys

virtually on the streets to fend for themselves by keeping a box for repairing watches in a road side platform at the mercy of another shop owner,

that too on a daily rent of Rs. 12/-. Even after 68 years, they are struggling to get possession of their property for the basic necessity of earning

their daily bread. Therefore, I have no doubt in my mind about the bona fide requirement of the lessor''s family.

But the more serious objection by the tenant is a technical plea and if sustainable, could result in negativing the relief to the poor lessor. The

objection is that since the landlord is in occupation of a portion of the petition premises as his residence, the proper provision to be invoked is

Section 10(3)(c) and not Section 10(3) (a) (iii) of the Act. It is no doubt, true that the lessor is in occupation of the building in which the petition

premises is also situate. Learned counsel for the tenant had relied on the following judgments in support of his contention that when the landlord

was in occupation of part of the premises, the application for personal occupation could be claimed only u/s 10(3) (c) and not u/s 10(3) (a) (iii) of

the Act.

(i) Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others,

(ii) Bengal Trading Co. v. G.M. Natarajan & 3 others (1982 (1) L.W., 277).

It is true that if the landlord is in occupation of a part of the building in which the tenanted premises is also situate which is sought to be

recovered by the landlord for personal occupation, the appropriate provision will be Section 10(3)(c) of the Act. But Mr. G. Rangaratinam,

learned counsel for the respondent points out that it is equally a settled proposition of law that even though two portions may be part of the same

building, if one of the two properties can be enjoyed separately, and can be sold by the landlord and the purchaser be inducted in possession

without disturbing the landlord''s possession and enjoyment of the premises in his occupation, then the provisions of Section 10(3) (c) will not be

attracted. It has also been held that the fact that two buildings were separated by a single wall with no intervening space between them, will not

also alter the situation in any manner. The following extract from the judgment of the Supreme Court in Gangaram Vs. N. Shankar Reddy, would

be relevant:

On a consideration of the matter, we find that the contention of Mr. Nambiyar, which has found acceptance with the Appellate Court and the

High Court is not all a tenable one. What S. 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different

buildings, one occupied by the landlord and the other by the tenant. The significant words used in S. 10(3)(c) are ""the landlord who is occupying

only a part of a building"" and ""any tenant occupying the whole or any portion of the remaining part of the building"". Surely no one can say that two

adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same

building if they are owned by one person and separate buildings if they are owned two different persons. A practical test which can be applied to

find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be

sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord''s possession and enjoyment of the

premises in his occupation being affected. Viewed in that manner, it can at once be seen that the leased premises in the appellant''s occupation can

be independently sold and the purchaser delivered possession without the respondent''s possession of door No. 1-1-249 being affected in any

manner. As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Sri

Sitaram Rao and the respondent was owning only door No. 1-1-249. Such being the case, merely because the appellant has acquired title to door

No. 1-1-250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondent''s building

No. 1-1-249. Similarly, the fact that the two buildings are separated only by a single wall with no intervening space between them would not alter

the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a

single wall or by two separate walls with intervening space in between them.

In S. Devan/V. Krishanan/K. Salim Ahmed v. N. Palaniappan (Landlord) (1996 (2) L.W., 555), S. Jagadeesan, J. dealt with a petition in

which five shops were situate contiguously in a row. It was held that when each shop had the separate door number and treated as separate unit

and it was open to the landlord to sell each shop as a separate unit. It was held that the petition u/s 10(3)(a)(iii) of the Act was maintainable. The

judgment in Jothi Ammal v. Kulandai Vadivel ( 1998 (III) C.T.C., 457 , K. Govindarajan, J. dealt with a petition u/s 10(3)(c) of the Act in respect

of a property in which one of the two portions was capable of being sold separately without disturbing the possession of the other portion. This is a

converse case and the learned Judge held that the petition u/s 10(3)(c) of the Act cannot be maintained.

In the background of the above statement of law the very admitted plea by the tenant himself would disclose a distinct nature of the two

portions, one in the occupation of the tenant and the other in the occupation of the landlord. In paragraph No. 6 of the counter in H.R.C.O.P. No.

26 of 1986 the tenant had stated as follows:

That the petitioner is owning house just behind the shops. That there is a road on the western side of the house also. The said house can be used as

shop also for any business to be carried on by the sons of the petitioner.

Not being satisfied with the said pleadings, in the oral evidence also he has stated as follows:

Therefore, the above two extracted statements of the tenant himself bring out the distinctive and divisible nature of the property and there can

be no doubt that two portions can be enjoyed and sold separately without causing hindrance to each other. The entrance to the portion in the

occupation of the landlord itself is through the adjoining street. Therefore, I am inclined to hold that the petition for eviction had been rightly filed u/s

10(3)(a)(iii) of the Act.

I should also point out that this objection was not taken in the counter statement. Though the objection is based on a statutory provision, yet it

is a mixed question of fact and law which requires to be pleaded so that the opposite party will have the liberty to let in evidence to show that the

factual basis would justify the filing of the petition u/s 10(3)(a)(iii) of the Act. In the counter statement, the above extracted statement, had been

raised only to the effect that the landlord has an alternative accommodation and not as an objection relating to the applicability of Section 10(3) (c)

of the Act. That is the reason why the learned Rent Controller had not framed any such issue for consideration. Nor the said point was considered.

Before the Appellate Authority also, the said point had not been raised or considered. Therefore, strictly speaking the tenant cannot be allowed to

raise this point at the revisional stage. Even so, I have considered the objections on merits and for the reasons already stated, I am inclined to hold

that the said objection is not sustainable.

In the result, though I am inclined to set aside the findings of the Appellate Authority, holding that the tenant was guilty of wilful default and that

the finding has to be set aside, I am inclined to uphold the landlord''s claim for owner''s occupation u/s 10(3)(a)(iii) of the Act. With the above

observations, the Civil Revision Petition is dismissed. No costs.