Mrs. Gori Devi vs Shama Rao (died) and Others

K. Swamikkannu, J.—This is a civil revision petition filed by the landlady u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act,

1960, as amended by Tamil Nadu Act XXIII of 1973 (hereinafter referred to as the Act), against the judgment, dated 30th November, 1981,. of

the learned Appellate Authority (VII Judge, Court of Small Causes, Madras) in H.R.A. No. 1586 of 1980 on his file, which was preferred by the

tenants against the order of the learned Rent Controller (XI Judge, Court of Small Causes, Madras), in H.R.C. No. 298 of 1980, which was filed

for eviction of the tenants by the landlady-revision petitioner u/s 10(3)(a)(i) of the Act. The case of the revision petitioner was as under She is the

owner of the entire premises bearing Door No. 12, Krishnappa Maistry Street, Park Town, Madras.: It is a residential building, comprised of two

shops in the front portion of the groundfloor, and the rest, residential portions. The first respondent to the eviction petition, vis., A. T. Electricals,

by its proprietor, is a tenant under the petitioner for the entire first floor on a rent of Rs. 130 per mensem. The second respondent Shama Rao is a

tenant in respect of a portion in the backside of the ground floor on a monthly rent of Rs. 70 and the third respondent Srinivasa Rao is a tenant in

respect of a portion in the backside of the groundfloor on a monthly Rent of Rs. 40. The first respondent, the proprietor of A. T. Electricals, is

occupying the premises for his residential purposes and is residing with his family in that portion, but the receipts for the rent payments are being

issued in the name of the firm, A. T. Electricals. The petitioner is living at No. 40, N.S.C. Bose Road, Madras, a rented building and she is not in

occupation of any other building of her own in the City of Madras. She therefore bona fide requires the premises for her own occupation from the

respondents. The petitioner issued a notice on 7th December, 1979, terminating the tenancy. The first respondent did not send any reply, though

he acknowledged it, but respondents 2 and 3 sent replies on 12th December, 1979 and 11th December, 1979, respectively. On the basis of the

above averments, the revision petitioner prayed for the eviction of the respondents-tenants.

The first respondent in his counter, admitted the tenancy, but contended that the tenancy was for commercial purposes and the vendor of the

petitioner was aware that the premises were predominantly used for commercial purposes and subletting had been permitted in writing and even

the sub-tenant has been using the place both for residential and non-residential purposes and as such the petitioner is not entitled to ask for eviction

of a non-residential portion for a residential purpose and therefore, the petition for eviction is not sustainable as filed u/s 10(3)(a)(i) of the Act. The

first respondent further contended that the landlady was already in possession of a portion of the premises on the groundfloor even at the time of

the purchase and that she cannot maintain the petition as is now filed, but she ought to have filed it for additional accommodation.

The second and third respondent filed a common counter and they also admitted the tenancy, but contended that the petitioner has other houses

and that she, had asked for enhanced rent and as such, there is no bona fide, in her claim for the premises for her own occupation.

The learned Rent Controller framed the following four points for consideration:

Whether the portion in the occupation of the first respondent is a non-residential one and if so, whether the petition u/s 10(3)(a)(i) is not

maintainable?

Whether the petitioner is already in occupation of a portion of the demised building and if so, whether the petition for eviction u/s 10(3)(a)(i) is

not maintainable?

Whether the petitioner bona fide requires the portion in the occupation of the respondents for her own use and occupation and

To what relief are the parties entitled?

During the enquiry before the Rent Controller, the petitioner examined P.Ws. 1 to 3 and filed Exhibits P-l to P-16 on her side. The respondents

examined R,Ws. 1 to 4 and marked Exhibits R-l to R-19 in support of their case. The learned Rent Controller held, under Point 1, that the petition

is maintainable u/s 10(3)(a)(i) of the Act. Under Point 2, he held that the objection raised by the tenants that the eviction petition ought to have

been filed u/s 10(3)(c) is without substance and accordingly, he answered the point in favour of the landlady. Under Point 3, the Rent Controller

held that the requirement of the. premises by the landlady is bona fide and that she is entitled to have the entire building for her own use and

occupation for residential and non-residential purposes. Under Point 4, the Rent Controller allowed the petition with costs and ordered eviction

granting the respondents two month''s time to vacate the premises. Aggrieved by the said decision of Aggrieved by the said decision of the Rent

Controller, the second and third respondents preferred an appeal, H.R.A. No. 1586 of 1980, to the learned Appellate Authority, who, on the

point whether the order of the Rent Controller was valid in law and sustainable, held that the landlady is in legal occupation of the second floor of

the petition premises and the fact that the second floor has been kept under lock and key by her is quite sufficient to show that it is under the legal

occupation of the landlady. The Appellate Authority held that the petition for eviction should have been filed only u/s 10(3)(c) and not u/s 10(3)(a)

(i) of the Act, and therefore, the petition as filed was not maintainable. Thus, the learned Appellate Authority answered the point in favour of the

respondents-tenants, with the result he allowed the appeal, set aside the order of thie Rent Controller and dismissed the eviction petition in so far

as it related'' to the second and third respondents.

Aggrieved by the above judgment of the Appellate Authority, the landlady has come forward with this revision petition inter alia contending that

the Appellate Authority has failed to note that Section 10(3)(c) would come into play only if the landlady is occupying a portion of the same

premises, Mr. M. Srinivasan, learned Counsel for the landlady revision petitioner, contends that the learned Appellate Authority has failed to note

that in the instant case, the revision petitioner was; admittedly residing in a different premises and the portion in the second floor of the petition

premises was kept vacant. He points out that R.Ws. 2 and 3 have admitted in their cross-examination that the landlady was the purchaser of the

building and she did not occupy any portion thereof either by residing therein or keeping any of her belongings ever since the purchase. The learned

Counsel further points out that R.Ws. 3 and 4 have admitted that there, are fifteen members in the family of the landlady. According to the learned

Counsel, the decision relied on by the Appellate Authority viz., P.M. Kuppa Sah Vs. Rajaram Sah, , is not applicable to the facts of the present

case because the landlady in this case is residing in a separate rented building and the room in the second floor covered with asbestos roofing is

indeed kept locked by her and there is absolutely no evidence to� show that any materials owned by the landlady had been kept therein so as to

satisfy the definition of possession or occupation, as contemplated by the provision u/s 10(3)(c). In other words, the contention of the learned

Counsel is that in view of the decision in Rajammal v. V. T. Swami (1967) 1 M.L.J. 46 and Sundara Gopal v. Subramaniam (1976) 2 M.L.J. 13,

the fact that the landlady had, ever since her purchase of the premises, kept the room in the second floor under lock and key does not constitute

occupation by her so as to warrant the petition being filed u/s 10(3)(c) by the landlady. That section reads as follows:

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.

According to Mr. M. Srinivasan, the question of additional accommodation in a building arises only if the landlady occupies a portion of the same

premises, which is not the case here;. Admittedly, the landlady is residing with the members of her family in a separate rented building elsewhere. It

is also in evidence that no material belonging to the landlady is kept in any room available in the upstair portion of the premises in question so as to

constitute ''occupation'' by the landlady. Mr. Srinivasan also refers to the decision, in Parvathi Ammal v. P. Mchamed Ali (1982) T.L.N.J.400 for

the proposition that misquoting of a provision or quoting of a wrong provision: or omission to quote the correct provision of law should not be

viewed with a technical eye and the Court cannot throw out the case on that ground. In the present case, it is common ground that the landlady is

living in a rented premises. She wants the premises in question for her own occupation, namely for the occupation of herself and the other members

of her family. It is also not in dispute that anyone belonging to the family of the landlady is in occupation of the premises in question in respect of

which eviction is sought in these proceedings. Ever since the premises were purchased, the upstair portion consisting of rooms covered with

asbestos roofing were kept locked by the landlady. When there is no evidence to show that any material belonging to the landlady had been kept

inside the said portion, it is not in consonance with law to hold that the said portion is under the occupation of the landlady.

In the case of residential buildings, ''Occupation'' can only mean ''living in it The fact that some rooms in a house are kept locked by the landlady

will not lead to the conclusion that she is in occupation of a part of the building, within the meaning of Section 10(3)(c), especially when it is beyond

dispute that the landlady is living in a separate rented building with the other members of her family.

Mr. Sadagopan, learned Counsel for the respondents-tenants, referred to the decision in P.M. Kuppa Sah Vs. Rajaram Sah, , where the

landlord gave notice of termination of tenancy to all the three of his tenants and on receipt of the notice, one of the tenants vacated the portion in his

occupation and as soon as that tenant vacated, the landlord put his own belongings in that portion and locked it up and kept it in his control.

Finding that the other two tenants did not vacate, he filed a petition u/s 10(3)(c) for additional accommodation. It was held that any jurisprudence

contemplates juridical possession as the nearest equation: of physical possession; in a case where the landlord keeps his things in a portion of the

premises, vacated soon after he gave notice of termination of tenancy and keeps it locked up under his control, and is in legal possession thereof,

then the intention of the landlord should be deemed to be to keep it in his physical possession and this satisfies the requirement u/s 10(3)(c) of the

Act. In that case, the landlord filed the application u/s 10(3)(c) and therefore it was held that it was certainly maintainable; because the landlord,

though not in physical possession, was in legal occupation of the portion of the building. The above decision is distinguishable from the facts of the

present case, because, in the case on hand, there is absolutely no evidence to show that anything belonging to the landlady had been kept inside the

rooms in the upstair portion of the premises and that it was in her occupation. On the other hand, it is seen that the evidence merely shows that it

was kept locked from the very date of purchase of the building by her. Under these circumstances, it cannot be said that the landlady is in

occupation of the upstair portion of the premises. In these circumstances, the learned Appellate Authority was not correct in having held that the

petition ought to have been filed u/s 10(3)(c) of the Act.

From what has been discussed above, there cannot be any doubt that the requirement of the premises by the landlady (revision petitioner) for

her own occupation is clearly bona fide. It is also relevant to mention here that no oblique motive has been suggested, much less proved, against

the landlady in seeking eviction of the respondents.

For the reasons stated above, the revision petition is allowed, the judgment of the Appellate Authority is set aside and the order of eviction

passed by the Rent Controller is restored. There will be no order as to costs. The respondents herein are granted two months time to vacate the

premises.