N. Dakshinamoorthy vs Alphonsea Celestine Kamala Benjamine

S.S. Subramani, J.—Tenant in HR.C.O.P. No. 137 of 1992 on the file of Rent Controller, Pondicherry is the revision petitioner herein.

Landlady claimed eviction of tenant on the ground that she requires scheduled building for her additional accommodation. Tenant is occupying the

downstairs portion of the building and landlady is occupying the first floor. Landlady claimed possession on the ground that she is not in a position

to climb up in first floor in view of her pain in her knee and she is also an Asthamatic patient. Tenant is making use of the ground floor portion for

the purpose of his tyre business and the smoke emanating therefrom, has affected her health which requires constant medical attention. Landlady''s

father who is 73 years old on the date of petition is also having chronic knee problem and he also requires constant medical attention. He is also

advised not to climb up staircase. According to landlady, in view of their illness, they require better environment and space occupied by them is not

sufficient. They require the scheduled building as additional accommodation for their own occupation. A notice was issued asking tenant to vacate

the premises for which a reply was sent refusing to surrender vacant possession. Eviction petition was filed thereafter.

In the counter statement filed by tenant, he alleged that the claim is not bona fide. According to him, originally ground floor was let out to him for

a sum of Rs. 400/- and the same has been now enhanced to.Rs.1,320/-. He has invested huge amounts in business and he has earned very good

reputation. He also contended that he will be put to great hardships if he is asked to vacate the building. He has also said that there is no change in

the size of family of landlady and, therefore, the claim is not bona fide. He prayed for dismissal of eviction petition.

Rent Controller as per order dated 23.8.1995 allowed the eviction petition. Trial Court held that landlady''s physical condition is not good and

she requires constant medical attention. It is further found that she has been advised by her physician not to climb up staircase and if she climb

staircase, the possibility of her condition is likely to get deteriorated. Evidence of PW2, Doctor who issued certificate Ex.A1 was believed by the

Rent Controller. It is also held that landlady''s father was also ailing and he had to be admitted in eye hospital for treatment. Trial Court held that

the land lady must be given more convenience and the space occupied by her is not sufficient to meet her requirement. Eviction was ordered. Rent

Controller did not enter finding regarding relative hardships.

Against the order of Rent Controller, tenant filed M.A.19 of 1995 on the file of Rent Control Appellate Authority/ Principal District Judge,

Pondicherry. Appellate Authority also confirmed that the claim is bona fide. Appellate Authority also considered the question of relative hardship

and held that tenant will not be put to any hardship since scheduled building is only an annex to his main business. Appellate Authority found that on

the admission of tenant himself that his main business is in some other place and he can shift the business also to the main business. But at the same

time, it held that the health condition of landlady is such that she requires immediate medical attention and she will be put to great hardship if

eviction is not ordered.

The concurrent findings of authorities below are assailed in this revision petition.

I heard the counsel on both sides. Learned counsel for petitioner submitted that the application for eviction itself is not maintainable and the same

is filed without any bona fides. It is also argued that subsequent events have not been taken into consideration by Rent Controller or by Appellate

Authority. It was argued that there is no pleading by landlord about the relative hardships and absence of pleadings will entail the dismissal of

eviction petition itself.

After hearing counsel on both sides, I do not find any merit in any of these submissions.

One of the main point that is argued by learned counsel for petitioner is that landlord has not pleaded about the relative hardship and without

pleading, Appellate Authority also went wrong in entering a finding, that tenant will not be put to any hardships. Learned counsel relied on the

decision reported in 1988 (1) L.W.67 (Radhakrishnan v. Seethalakshmi), wherein a learned Judge of this Court held thus,

There is one other ground on which the landlord should fail, in this revision petition. He has not at all pleaded in the petition about the relative

hardship that would be caused to the parties nor proved the fact that the relative hardship would be more on his part than on the part of the tenant.

S.10(3)(e) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 contemplates that the landlord should prove that the hardship which

may be caused to the tenant by granting it wilt outweigh the advantage to the landlord. This Court has held in Annakili Amma v. Hussain and

Hassan, that in order to enable the Rent Controller to give effect to the proviso to S.10(3)(e) that the hardship that may be caused to the tenant by

an order of eviction will outweigh the advantage to the landlord, it would be necessary for the parties to plead so and place necessary materials in

support thereof. In this case, I find that no such pleading is found in the eviction petition nor is there any evidence on this aspect. Though the

learned counsel for the petitioner offers to let in evidence on this aspect, I feel that it cannot be allowed at this stage. On this ground alone, the

eviction petition should be dismissed.

I do not find that the above decision have any application to the facts of this case. In that case learned Judge held that the claim of landlord itself

is not bona fide. It is also found that eviction petition was filed due to enmity between landlord and tenant. In that case, landlord also obtained a

similar accommodation in another portion of the same building and let out to another tenant during the pendency of the proceedings. After holding

that the claim itself is not bona fide, learned Judge observed in para 5 that the eviction petition also will have to fail since landlord has not pleaded

about the relative hardship that would be caused to the parties. In fact, the question whether it has to be specifically pleaded or not was not the

point for decision. It is only an obiter since that is not necessary for proper disposal of the case once it is found that the claim for eviction itself is

not bona fide.

Rent Control proceedings is not to be compared with ordinary civil suits. Rent Control proceedings is only a summary procedure and when the

parties are aware as to the point which they have to meet and if evidence is let in, decision will have to be taken following the principles of justice,

equity and good conscience. The only requirement under Rent Control Act is that the parties must be aware about the case which they have to

meet and even if there is no pleading, if parties have let in evidence, the same could be considered by Rent Controller.

I take guidance to take this view from the decision reported in (1999) I S.C.C. 141 = 1999-I-L.W. 713 (Ram Narain Arora v. Asha Rani).

The question arose in that case was under Delhi Rent Control Act. In that case, landlord claimed eviction for his bona fide need and occupation.

Under Delhi Rent Control Act, landlord will not be entitled to get eviction if he is in possession of other accommodation and the same also will

have to be pleaded. Landlord in that case further pleaded that he has no other suitable accommodation. In the Counter Statement itself, tenant

contended that landlord is in possession of another premises and the same has not been disclosed. A few days after eviction petition was filed,

alternate accommodation was also vacated by landlord. Rent Controller, on the basis of this evidence, held that landlord is not entitled to get

possession. When the matter was taken in revision before Honourable Delhi High Court, learned Judge took a different view. The question before

Honourable Supreme Court was whether High Court was correct in ordering eviction when there is no pleadings regarding alternate

accommodation and even if there is any suppression how far the same is liable to be interfered with in a Special Leave Petition. Considering this

question in paragraphs 10 and 11 of the Judgment, their Lordships have held thus,

In making a claim that the suit premises is required bona fide for his own occupation as a residence for himself and other members of his

family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the Court can state whether

the landlord requires the premises bona fide for his use and occupation. In doing so, the Court must also find out whether the landlord or such

other person for whose benefit the premises is required has no other reasonably suitable residential accommodation. It cannot be said that the

requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably suitable accommodation. If he

has other reasonably suitable accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may

not be bona fide. In such circumstances, further inquiry would be whether that premises is more suitable than the suit premises. Therefore, the

question raised before the Court would not necessarily depend upon only the pleadings. It could be a good defence that the landlord has other

reasonably suitable residential accommodation and thereby defend (sic defeat) the claim of the landlord.

There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt

true that if the pleadings are clearly set out, it would be easy for the Court to decide the matter. But if the pleadings are lacking or vague and if both

parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the Court,

neither party is prejudiced. If we analyse from this angle, we do not think the High Court was not justified in interfering with the order made by the

Rent Controller.

(emphasis supplied)

From the above decision, it is clear that even if there is any lack of pleadings, if the parties understood the case and have adduced evidence,

application is not liable to be rejected merely on the ground of lack of pleadings, or vague pleadings. In this case, tenant volunteered and put a

contention that if he is liable to be evicted, he will be put to greater hardship than the landlord and, therefore, he wanted the petition to be

dismissed. For the said purpose, he gave evidence that he has invested huge amounts in the business and how far he will be put to great hardship

since he cannot collect his dues from the customers, etc. Tenant knew that the relative hardship is a matter which has to be considered by the Rent

Controller.

Though Rent Controller did not enter a clear finding on this point, the same was urged before Appellate Authority. Appellate Authority

considered this question and came to the conclusion that tenant will not be put to any hardship and landlord''s requirement is bona fide. It is also

found that landlord will be put to greater hardship if eviction is not ordered. It also come out in evidence that even though eviction petition was filed

in 1992, till appeal was disposed of by Appellate Authority, no attempt was made by tenant to verify or ascertain whether any accommodation is

available. In fact, the Rent Controller also in a vague manner held that the tenant will not be put to any hardship.

It is also admitted by tenant himself that he is doing business at West Bowdewerd Road, where he is having his main business and scheduled

premises is used by tenant only for the purpose of godown. Rent Controller also found in para 8 of his order that tenant is carrying on business in

automobile tyres in West Bowdewerd Road and the premises in question is only additional place where tenant has stored goods. It is also found

by Rent Controller that main business is also in the same locality and these facts are admitted by tenant himself.

If in spite of lack of pleadings, parties have also adduced evidence, it is too much to contend on technicalities of lack of pleading. The plea is

rejected.

Regarding the claim of landlady learned counsel submitted that to climb up 10 steps will not put landlady to any difficulty and, therefore, the

claim is not bona fide. It has come out in evidence that even at the time when building was let out to petitioner, she was an asmatic patient. The

smoke from the tyre has aggravated her ailment. Along with that ailment, she is also having Ortheratic problems. She is not in a position to climb up

staircase and she is under treatment of P.W.2. The Doctor who is treating P.W.2 is also spoken about the ailment of landlady and he also proved

Ex.A1. He has advised that landlady should not climb staircase and the same may aggravate her ailment. Both the authorities below believed the

evidence of PWs.1 and 2 and have held that the claim is bona fide.

An argument was taken by learned counsel that on the date of petition her father was alive and additional accommodation was asked in view

of father''s ailment also. Now that he is not alive, landlady need not have any additional accommodation. The space occupied by landlady is more

than sufficient for her requirement.

I do not find any merit in the said submission. Additional accommodation is necessitated only because landlady is not in a position to climb up

staircase. That requirement is even now subsists. Death of father of landlady has nothing to do with landlady''s ailment.

The concurrent findings of authorities below are not liable to be interfered with and I do not find any illegality, impropriety or irregularity in the

orders of authorities below. In the result, the revision petition is dismissed. No costs.

S.S. Subramani, J.—After pronouncement of order, learned counsel for tenant sought time to surrender vacant possession. Learned counsel

for respondent was also heard. Taking into consideration the facts and circumstances of the case, I grant three months time to surrender vacant

possession of the scheduled building on tenant filing an undertaking before this Court within a period of ten days from today undertaking that he will

surrender vacant possession of the building before expiry of three months. Tenant shall also pay the entire arrears of rent if any as on date within

ten days from today. If any of these conditions are violated, landlord can take possession of the building as if no time is granted.