Parimala Prabhakar vs Mrs. Madan Bai and another

S.S. Subramani, J.—Landlady in R.C.O.P.1394 of 1990 on the file of X Judge, Court of Small Causes, Chennai is the revision petitioner.

Subject matter of the eviction petition reads thus,

Premises bearing Door No. 21, Easwaran Koil Street, West Mambalam, Madras - 33 consisting of front side one shop 4 rooms and lavatory

bathroom excluding, the garage, open spaces in the front and rear sides.

Application was filed by landlady alleging that tenant is occupying the premises on a monthly rent of Rs. 900/-. It is further alleged that landlady

is living in a rented building and she is not owning or occupying any other building in Madras and she bona fide requires the building for her own

occupation. She also alleged that the building is old and the same requires demolition and reconstruction. It is also alleged that tenant has

unauthorisedly sub-let the building and notice was issued asking tenant to vacate the building. Landlord further alleged that tenant has committed

active waste in the premises which has affected the utility of the building. A registered reply was received denying the allegations and refusing to

surrender vacant possession.

In the counter statement filed by tenant he admitted that he is the tenant of the building and he is using the building both for residential and for

non-residential purposes. According to him, the portion in his occupation four rooms, lavatory, bathroom and open space and the remaining

portion in the premises are under the occupation of landlady. She also denied the allegation of landlady that she is not in possession of any other

building in Madras. The other grounds of eviction is also denied.

During trial, landlady did not pursue the ground for eviction that the building requires immediate demolition and reconstruction. Rent Controller

found that the claim of landlady for bona fide own occupation is proved. A contention was taken before Rent Controller that the application ought

to have been one for eviction for additional accommodation and not u/s 10(3)(a)(i) of the Act. The said contention was not accepted by Rent

Controller on the ground that the remaining portion of the building are not used by landlady since one is garage which cannot be used as

accommodation for the purpose of residence. It is also found that one more room is used for storing useless articles and that too having plinth area

of 4'' x 5'' only. Rent Controller held that even for taking food, landlady had to visit her mother''s house and therefore the garage and lumber room

cannot be said to be in physical possession of landlady. In that view of the matter, Rent Controller held that the claim for eviction is maintainable

and the application need not be u/s 10(3)(c) of the Act. Claim for eviction on the ground of sub-lease was found against landlady. Eviction was

ordered.

Against the said decision, tenant preferred R.C.A.178 of 1996 on the file of Appellate Authority / VII Judge, Court of Small Causes, Madras.

Appellate Authority also did not disturb the finding of the Rent Controller that the claim of landlady is bona fide. But, the Appellate Authority held

that the application ought to have been filed u/s 10(3)(c) of the Act. Only for that reason, application was dismissed. The legality of the said order

is under challenge in this revision petition.

Before going into the merits of the case, the scope of the relevant provisions of the Act is to be considered. Section 10(3)(a)(i) says,

Sec. 10(3)(a). A landlord may, subject to the provisions of clauses (d) apply to the Controller for an order directing the tenant to put the landlord

in possession of the building.

(i) in case it is residential building, if the landlord requires it for his own occupation or for the occupation of (any member of his family) and if he or

(any member of his family) is not occupying a residential building of his own in the city, town or village concerned.

Section 10(3)(c) reads thus,

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.

I have already extracted the description of property, which is the subject matter of the eviction petition. PW1 is the brother of landlady. When

he was examined, he said thus,

In cross-examination of RW1 he has said thus,

He further said that Further down ,he has stated,

It has come out in evidence that landlady is occupying rented premises in K.K. Nagar and she is paying rent. She is married and she has her

own family is also proved in this case. As stated earlier, Rent Controller found that the claim of landlady is bona fide. That finding is not disturbed

by Appellate Authority but dismissed the petition on the ground that petitioner ought to have filed petition for additional accommodation.

There is one thing, common in both Section 10(3)(a)(i) and Section 10(3)(c), i.e., landlady wants to occupy building for her own occupation.

But, in an application u/s 10(3)(c), even if the claim of bona fide is proved, landlord is not entitled to get possession immediately without taking into

consideration the comparative hardship.

It is true that there is difference between Section 10(3)(a)(i) and Section 10(3)(c). If the case of landlord is that he is residing in part of the

building and requires another part of the building in the occupation of tenant, so as to have additional accommodation and not to transplant himself

from the portion he is residing to the new portion, then the case squarely comes u/s 10(3)(c) of the Act. If on the other hand landlord is occupying

portion of the building and another portion of the building is in the possession of tenant and landlord wants that portion as he prefers to occupy that

portion and not the one he is occupying so far. It will be a claim u/s 10(3)(a)(i) only. The reason is the portion which landlord requires to surrender

is not required by him as ''additional accommodation'' but only as an ''accommodation''. There may be many reasons for the landlord to contend

that the portion occupied by him cannot be used as an accommodation and only if it is used as accommodation, the question of additional

accommodation will arise. If the portion occupied by landlord is only garrage or lumber room and it cannot be used for residence, it cannot be said

that the requirement is an additional accommodation for the purpose of residence. For the purpose of Section 10(3)(c), not only landlord must be

in occupation of the portion of building but landlord must use it as accommodation which is not sufficient for his requirement and requires the

portion occupied by tenant as additional accommodation. If that portion of the building cannot be used for useful purpose, either as residential or

non-residential, it cannot be said that the requirement is for additional accommodation. In this case, the claim of tenant is landlady is in possession

of garrage. Landlady wants to occupy the portion of building for her residential purpose. Naturally, landlady can only claim that she requires that

portion of the building for her ''accommodation. In this case, it is further found that garrage is also not in the physical possession of landlady. PW1

has admitted that it is in his possession and landlady is in possession of only lumber room having plinth area of 4'' x 5'', where useless household

articles are stored. This fact is also admitted by tenant. If landlady can say that the portion occupied by her cannot be used for residence, can it be

said that the portion occupied by tenant is required for additional accommodation. Requirement of landlady also must be for additional

accommodation for residential purposes or for the purpose of business. That means, that landlady must make use of that portion in her occupation

for residential purposes and that is insufficient.

Question of additional accommodation arises only if the present accommodation is insufficient. The question of sufficiency or insufficiency will

not arise where portion occupied by landlady cannot be said as accommodation used for residence or that landlady explains that she cannot make

use of it for her requirement. In such cases, landlady cannot be found fault with in filing application u/s 10(3)(a)(i) and the application is not liable to

be thrown out.

Similar case came up for consideration before the Kerala High Court in the decision reported in 1981 KLT 167 (Lakshmana Naikan v.

Gopalakrishna Pillai) rendered by Justice Subramonian Poti (as his Lordship then was). Section 11(3) and 11(8) of Kerala Buildings (Lease and

Rent Control) Act are similar to Section 10(3)(a)(i) and 10(3)(c) of our Act, which reads thus,

Section 11(3): A landlord may apply to the Kent Control Court for an order directing the tenant to put the landlord in possession of the building if

he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.

Section 11(8): A landlord who is occupying only a part of a building, may apply to the Rent Control Court 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 his personal use.

Commenting on the above provisions, learned Judge in para 2 of the Judgment held thus,

If the case of the landlord is that he is residing in a part of a building and he requires another part of the building in the occupation of the tenant for

his occupation so as to have additional accommodation and not to transplant himself from the portion he is residing to the new portion then the

case squarely falls within S. 11(8). If on the other hand a person is occupying a portion of a building, another portion of the building is in the

possession of the tenant and he wants that portion as he prefers to occupy that portion of the building and not the one he had been occupying so

far it will be a claim that falls under S.11(3). That is because in that case the portion, surrender of which is sought is not required as any additional

accommodation but as accommodation. There may be many reasons why he may not want to live in that part of the building where he had been

living. He may think that it is better to live in the portion in which the tenant is living and if the circumstances are such that it can be said that he bona

fide needs that portion occupied by the tenant for his occupation in place of the portion which he has been occupying so far, the claim will fall

squarely under S.11(3). To put it in brief where what is sought to be recovered from the tenant is a portion of a building another portion of which is

occupied by the landlord S.11(8) would operate only when - hut always when - the portion occupied by the tenant is sought for the purpose of

additional accommodation for the landlord.

(emphasis supplied).

Counsel for petitioner also brought to my notice the decision reported in (1974) I S.C.C.661 (Phiroze Bamanji Desai v. Chandrakanth N.

Patel) wherein the last portion of para 8, it is held thus,

....It was nobody''s case that this garage was in the exclusive possession of the appellant. Moreover, it was only a garage and not a room and it

could not be availed by the appellant for his occupation. It will, therefore, be seen that the evidence on record was sufficient to show that the

requirement of the ground floor premises by the appellant was reasonable and bona fide......

Learned counsel for respondent brought to my notice the Judgment reported in 1991-2-L.W.277 (Bengal Trading Co. v. G.M. Natarajan &

others), rendered by Justice K. Venkateswami (as his Lordship then was). It is true that in that case learned Judge held that landlord is in

possession of portion of the building and the application can be filed only u/s 10(3)(c). The question whether the portion occupied by landlord was

used as accommodation and whether landlord wanted to transplant himself in the portion occupied by tenant was not considered. In that case, their

Lordships relied on the decision of the Honourable Supreme Court reported in Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and

Others, . In that case, the Supreme Court only held that when landlord was in possession of the portion of building, application for eviction u/s

10(3)(c) is maintainable.

When tenant himself has admitted that the room in the possession of landlady is used as lumber room and even for taking food landlady had to

depend on her mother residing elsewhere, it is clear that same cannot be used for residential or non-residential purpose. Landlord wants to make

use of residential portion of the building and that portion is in the possession of tenant. According to me the application could be filed u/s 10(3)(a)

(1) of the Act. Regarding the garage, it is proved that it is also not in the possession of landlady. Regarding the bona fide nature of claim, there is

no serious arguments and Rent Controller found in favour of landlady, which finding is not disturbed by the appellate authority also.

In the result, the judgment of Appellate Authority is set aside and that of the Rent Controller is restored. There will be an order of eviction as

prayed for. The revision petition is allowed. No costs.