K.S. Munawar Jan Begum vs H. Subramaniam

V. Kanagaraj, J.—The above Civil Revision Petition is directed against the judgment and decree dated 16.2.1995 made in RCA. No. 53 of

1992 by the Rent Control Appellate Authority and the Principal Subordinate Judge. Salem thereby dismissing the said appeal and confirming the

fair and decretal order dated 17.8.1992 made in R.C.O.P. No. 9 of 1990 by the Rent Controller and the Additional District Munsif, Salem,

Regarding the facts, it is the landlady, who filed the petition before the Rent Controller u/s 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent

Control) Act 1960 seeking the eviction of the tenant on ground of requiring the premises for her additional accommodation. On her part, the

landlady would allege in her Rent Control application that she purchased the petition property on 14.8.1989 and even prior to her purchase, her

husband was running a shoe-mart in the petition premises thus making use of the same for nonresidential purposes: that the respondent is in

occupation, as the tenant, of a portion of the petition premises measuring 3''x 10'' running a watch repair shop therein; that the tenant in spite of

intimation to the effect that the petitioner had purchased the property and in spite repeated demands made on her part from the date of her

purchase of the said property to vacate the premises for the convenient running of the shoe-mart of her husband, which at present does not have

sufficient frontage and the approach to the shoe-mart being very narrow thus causing lot of inconvenience in the running of the shoe-mart business,

did not vacate the premises and hence the petition. The petitioner would further contend that if additional accommodation is not granted, the

petitioner and her family members would be subjected to much loss and hardship apart from the loss that had occasioned already without proper

approach to their business premises.

In the counter affidavit filed by the respondent/tenant, it would be urged that following the foot steps of his father, he is running the watch

repairing shop in the petition premises, which is the only source of revenue for his family and the moment he is vacated, he will be thrown out of his

business: that the petitioner has not made this application with good intentions and on bona fide grounds but has filed it only as a counter-blast to

the suit filed by the respondent; that he does not even know about the purchase of the building by the petitioner; that the petitioner has leased out

two other shops owned by her immediately on the West of the premises; that the premises is not at all required for the petitioner for additional

accommodation; that there is no loss or hardship to the petitioner and the same would only be to the respondent, if he is ordered to be evicted: that

nearly 20'' space that served as an approach to the petitioner''s building has been leased out by her in favour of two other tenants and thus

absolutely no bona fides are attached to the petition and would pray for dismissal of the petition.

During trial, the petitioner has examined her husband and Power of Attorney Agent K.A. Siddiq Ali as P.W.I and also marked the sale deed

dated 14.8.1989 as Ex.A.1. On the part of the respondent, he would not only examine himself as R.W.1 but also would examine yet another

witness as R.W.2 and would mark four documents as Exs.B.1 to B.4.

In the oral evidence adduced by the husband of the petitioner as P.W.I, besides confirming what is pleaded in the application, he would also

mark the sale deed dated 14.8.1989, under which the property had been purchased in the name of the petitioner, as Ex.A.1. So also, on the part

of the respondent, the other witness examined is none other than a professional photographer, who has adduced evidence to the effect of having

taken Ex. B.2 photo, the negative of which is Ex. B.3, a couple of years prior to his examination and the receipt issued by him would also be

marked as Ex. B.4..

On his part, the respondent, besides confirming what has been pleaded in his counter, would depose as R.W.1 that he filed a suit in O.S. No.

147 of 1989 on the file of the Court of Subordinate Judge, Salem against the husband of the petitioner and three others for Mandatory and

Permanent Injunction. He would also depose that for the last sixty years, he is the tenant of the premises; that initially the monthly rent was Rs. 7.50

ps. and at present the same is Rs. 150/-; that he has also filed R.C.O.P. No. 26 of 1990 and is depositing the monthly rents: that he paid the

monthly rents upto 31.7.1992 besides having paid the house tax of Rs. 370/-; that the photograph submitted by him would show the two other

buildings rented out in favour of third parties by the petitioner and that no bona fides are attached to the petition and would pray for dismissal of the

petition.

During arguments, the learned counsel appearing for the revision petitioner/landlady would contend that the revision petitioner herein filed the

application u/s 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 before the Rent Controller seeking the petition

premises for additional accommodation for the better running of the shoe-mart business of her husband and the Rent Controller dismissed the

petition on ground that no substantial evidence was placed on record in proof of bona fides of the petition and that the petitioner has not taken any

step to appoint the Commissioner. But in Rent Control Appeal, the Commissioner was appointed and the report of the Commissioner reveals that

if one stands in front of the passage on the road and looks at the shoe-mart can be seen otherwise, the shoe-mart, which is inside cannot be visible

to a passer-by and there is a sign board over the passage portion in front of the shop. Reading out this part of the Commissioner''s Report, marked

as Ex. C.I, the learned counsel would point out that the petitioner does not have proper frontage for the business of her husband and would say

that the Rent Controller is not right in rejecting the petition.

Continuing to argue, the learned counsel for the revision petitioner would further contend that the Rent Controller decided the matter on ground

that the petitioner did not take steps for the appointment of a Commission to ascertain the facts on ground; that the suit filed by the respondent said

to be pending was for the relief of specific performance and the said suit was also ended in favour of the husband of the petitioner on 30.4.1999;

that the question of hardship is relevant so far as a petition u/s 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is

concerned and would cite a judgment delivered in K. Chinnakannammal Vs. Biharilal S. Lulla, . wherein it is held:

The question of relative hardship relevant for consideration in accordance with the proviso to Section 10 (3) (c) of the Act would properly arise

only when the application for eviction u/s 10 (3) (c) of the Act for additional accommodation is held to be maintainable. When such an application

is dismissed as not maintainable, the Appellate Authority has no jurisdiction to render a finding whether the hardship that might be caused to the

tenant by granting the application would outweigh the advantage to the landlord (Vice Associated Traders v. Abdul Hameed. 96 L.W. 566 =

(1983) 2 M.L.J. 538 - AIR 198-1 Mad. 21). Despite this, towards the concluding portion of paragraph 9 of its order, the Appellate Authority,

while holding that casual visits by relatives cannot be accepted as a sufficient ground for evicting and tenant.

proceeded to state that in such a case the hardship to the tenant outweigh the advantage accruing to the landlady. No doubt, in paragraph 7 of the

counter, the respondent has generally stated that the hardship caused to him will outweigh the advantage to the petitioner, as he had established his

business and the area is also predominantly one meant for the conduct of the automobile business. The evidence of R.W.1 does not establish that

any serious or great hardship would be caused to the respondent by an order for eviction being passed against him. it is not the case of the

respondent that accommodation similar to the one now available to him is utterly impossible to be secured The evidence of R.W.I also does not

make out that accommodation similar to the one now with the respondent is not available am where in the area in question. All that the respondent

has to do is to be on the look-out for other similar accommodation, which has not been stated to be unavailable in the locality. It may be that the

respondent may be obliged to pay slightly higher rent. But that cannot be considered to be such a great hardship of a kind on the respondent

outweighing the advantage accruing to the petitioner by the passing of the order for eviction justifying the refusal of relief to the petitioner on the

ground of relative hardships.

Citing the above judgment, the learned counsel would exhort that the bona fides of the petition could be decided only centering around the question

of hardship and would cite yet another judgment delivered in Maganbai Galada and 5 others v. Mool (''hand Join reported in 100 L.W. 56.

wherein it is remarked that

Suitability of place easily accessible and which can be seen by persons from outside and unsuitabilily of internal part of a building.

Citing the above judgment, the learned counsel would contend that as contemplated in the above judgment from the Commissioner''s Report, it

comes to be known that the internal part of the building cannot be seen from the road at all that the petitioner after her purchase of the petition

premises, wanted to improve the business of her husband and the above judgments squarely apply to her case; that the Rent Control Appellate

Authority has not at all taken into consideration the Commissioner''s Report and there is no discussion on the Commissioner''s Report by the Rent

Control Appellate Authority at all.

The learned counsel would then cite a judgment delivered in P. Gnanasambandam v. Radhakrishnan Pillai reported in 85 L.W. 826 wherein it is

held:

In a petition for eviction on the ground of requirement of the landlord for additional accommodation the main question that has to be decided is the

bona fide intention of the landlord to have the additional accommodation, asked for. Once it is conceded the demand is bona fide, it is for the

landlord to choose the portions for his additional accommodation, and it is not for the tenants to dictate or direct the landlord, to take such portions

for additional accommodation.

Citing the above judgment, the learned counsel would point out that regarding the hardship, the appellate authority has not given any finding.

Citing from para No. 21 of the counter filed by the respondent, the learned counsel would argue that for hardship, only an allegation is made but

the respondent is not at all put to hardship in any manner that regarding the suit said to have been filed by the respondent, the respondent himself

has accepted that by virtue of a sale deed registered in favour of the petitioner, she is a transferee for consideration and that the respondent filed

the suit only against the erstwhile landlord. The learned counsel would end up his argument saying that it is the bona fides of the landlady, which

outweighs the hardship alleged by the respondent and hence the lower authorities should have allowed the petition tiled by the revision petitioner

herein ordering eviction of the respondent.

In reply, the learned counsel appearing for the respondent would contend that originally the approach pathway was providing access to the

shop of the husband of the petitioner to the extent of 12'' but the said 12"" pathway got reduced to 3-1/2"" by the landlady herself; that the Rent

Controller has correctly dealt with the subject matter; that regarding the bona fides the judgment cited by the learned counsel for the revision

petitioner might be correct but in the case in hand, the petition is not maintainable and the judgment cited by the learned counsel for the revision

petitioner cannot be applied to the facts and circumstances of the case. The learned counsel would point out that the respondent himself is in

occupation of the portion as a tenant for 35 years and the property had been purchased by the revision petitioner only on 14.8.1989; that it is not

correct as it is argued on the part of the learned counsel for the revision petitioner that the suit filed by the respondent was for the relief of specific

performance, but the same was for permanent and mandatory injunction: that the two shops facing Venkatarama Naicken Street belongs to the

landlady, that there is only a plywood partition between the two shops and the shoe-mart of the husband of the landlady and would cite para No. 3

of the Commissioner''s Report. The learned counsel would further contend that there is nothing to show that the landlady requires the premises for

additional accommodation; that the other two shops have been let out in favour of the third parties after filing of this petition and would ultimately

pray to dismiss the revision petition.

If we assess the merit of the revision petition, the petition before the Rent Controller has been filed by the landlady u/s 10 (3) (c) of the Tamil

Nadu Buildings (Lease and Rent Control) Act 1960 seeking the building for additional accommodation. Section 10 (3) (c) of the Tamil Nadu

Buildings (Lease and Rent Control) Act 1960 reads:

A landlord who is occupying only a part of a building, whether residential or nonresidential, 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.

The proviso to the above Section, which is relevant for consideration, reads:

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.

In the light of the above Section, if the above Civil Revision Petition is to be decided, the first and foremost point that is to be considered is that

in the case in hand, the Rent Controller and the Rent Control Appellate Authority as well, have recorded a concurrent finding in rejecting the

application of the landlady stating that it is not on bona fide grounds and that the landlady does not require the premises for additional

accommodation at all. The reason offered on the part of the landlady that there is no proper frontage for the building, wherein her husband is

running a shoe-mart, as a result of which, they have been put to much loss and hardship is countered by the other side saying that it is the making of

the landlady in so far reducing the frontage of the shoe-mart from 121 to 3-1/2'' by letting out those portions in favour'' of third parties and the

same has not at all been rebutted or disproved by the landlady. The other reason that she wants to expand the business of her husband is also not a

bona fide one in the sense that after filing of this petition, she has let out the said two portions in favour of third parties, which are only divided from

the shoe-mart by a plywood. No other valid or tangible reason has been offered on the part of the landlady so as to positively consider her claim

for eviction of the tenant seeking additional accommodation for herself. Moreover, it is the settled law that unless perversity is writ large on the face

of the judgments, rendered by the lower authorities, it is not desirable for this revisional Court to interfere with or disturb the concurrent findings of

the lower authorities: A reading of the fair and decretal order passed by the Rent Controller and the judgment and decree made by the Rent

Control Appellate Authority would show that they are well discussed in consideration of the facts and circumstances of the case as put forth in the

light of the evidence placed on record and of course co-existing the legal convictions. The appreciation of evidence by the authorities below is also

quite fair and on the expected line. Moreover, both the authorities below have, with instances, made it clear that they are satisfied that the hardship

that may be caused to the tenant in his running the watch repairing shop in order to eke out livelihood for himself and his family undoubtedly

outweighs the advantage pleaded on the part of the landlady and since this dictum goes well with the proviso to Section 10 (3) (c) of the Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960, which is to be given paramount importance, as it is emphasized in the judgments cited by the

parties above, there is no room left with nor is it desirable for this revisional Court to interfere with the well considered and well merited judgments

rendered by the Rent Controller and the Rent Control Appellate Authority as well. I am not able to see any patent error or perversity in approach

so far as the decisions of both the authorities below are concerned so as to warrant interference of this revisional Court. In the above

circumstances, this revisional Court is left with no option but to confirm the concurrent findings of the lower authorities.

In result, the above Civil Revision Petition fails and the same is dismissed. The judgment and decree dated 16.2.1995 made in R.C.A. No. 53 of

1992 by the Rent Control Appellate Authority and the Principal Subordinate Judge, Salem thereby confirming the order dated 17.8.1992 made in

R.C.O.P. No. 9 of 1990 by the Rent Controller and the Additional District Munsif, Salem, is hereby confirmed.

However, in the circumstances of the case, there shall be no order as to costs.