Ponniah Chettiar vs S. Rajagopal

S. Ratnavel Pandian, J.—These two revision petitions are preferred by one Ponniah Chettiar who is admittedly one of the tenants under the

respondent and against whom an eviction order was sought before the Rent Controller (District Munsif) at Periakulam in H.R.C.O.P. No. 45 of

1978 on his file u/s 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) and granted by

the Rent Controller, which order was confirmed on appeal by the appellate authority (Principal Subordinate Judge, Dindigul), in C.M.A. No. 40 of

1980.

We shall first set out the facts of the case, giving rise to these revision petitions, before discussing the questions of law raised by the petitioner in

this case. It will be convenient to refer to the revision-petitioner as the tenant and the respondent herein as the landlord, in this judgment.

The landlord is the owner of a building in the municipal town of Theni, which forms one block. A plan Exhibit A-1 is filed and it gives the

topography of the building with all details necessary for the purpose of this case. There are four shops, each bearing a distinct and separate door

number, viz., Door Nos. 407, 408, 410 and 411. The main building bears Door No. 409, which lies behind the said four shops. There is a

passage from the main road viz., Madurai Road, leading to the main building. Two of the shops, bearing Door Nos. 407 and 408, are to the left of

the said passage whereas the other two shops are on the right side. These four shops have been let out to four independent tenants for non-

residential purposes, viz., for carrying on business. There is no dispute that the respondent-landlord is having his residence in the main building,

Door No. 409. The landlord has filed the petition u/s 10(3)(c) of the Act for eviction of two tenants from Door Nos. 407 and 408 on the ground

that these two demised buildings are required as and by way of additional accommodation for his occupation since the portion of the main building

under his occupation is not sufficient for his family members and also for storing fertilisers, pesticides etc., required for his agricultural operations.

The tenants have resisted the claim of the landlord contending that the building under the occupation of the landlord is provided with a number of

rooms and stores and therefore it would be more than sufficient for the use and occupation of the landlord''s family members, that they are doing

extensive business and have earned a good reputation, that the hardship that the tenants have to undergo in case of eviction would outweigh the

advantages of the landlord and that the landlord was owning several other buildings in the municipal town. After the landlord filed R.C.O.P. No. 45

of 1978 seeking eviction of the tenants, R.C.O.P. No. 7 of 1978 was filed by the tenant in occupation of the shop bearing Door No. 408 (the

revision petitioner) u/s 8(5) of the Act, for permitting him to deposit the arrears of rent payable by him for a period of 26 months, which rent had

fallen due from August, 1976 till November, 1978, also and for permitting him to deposit the future rent in Court. As per the joint memo, filed by

the parties, the evidence recorded and the documents marked in H.R.C.O.P. No. 45 of 1978 were treated as evidence in H.R.C.O.P. No. 47 of

1978 also. On the side of the landlord, Exhibits A-l to A-6 were marked and the landlord examined himself as P.W.I. The tenants did not file any

document, but examined two witnesses, of whom P, W. 1 in the present revision petitioner. The parties went in for trial before the Rent Controller

in H.R.C.O.P. No. 45 of 1978 on the single issue viz., whether the respondents are liable to be evicted from the petition-mentioned premises, for

the reasons set out in the petition, viz., that the landlord bona fide requires the buildings in question as additional accommodation, for his residential

purposes.

The Rent Controller, in H.R.C.O.P No. 45 of 1978, held that the landlord bona fide requires the premises as and by way of additional

accommodation and that sufficient reasons for evicting the tenants u/s 10(3)(c) of the Act have been made out. He accordingly ordered eviction.

On appeal by the aggrieved tenant (the revision petitioner) who is in occupation of Door No. 409, the appellate authority also agreed with the

finding of the Rent Controller and dismissed the appeal C.M.A. No. 40 of 1980.

Consequent upon the order in H.R.C.O.P. 45 of 1978, the other petition H.R.C.O.P. No. 47 of 1978 was dismissed, which order of dismissal

was also confirmed in appeal in C.M.A. No. 41 of 1980 by the appellate authority in its common judgment.

It may be noted here that the tenant in occupation of the shop bearing Door No. 407 did not prefer any appeal against the order of the Rent

Controller directing his eviction from the said building. These two revisions are filed by the tenant of the shop bearing Door No. 408 against the

common judgment rendered in C.M.A. Nos. 40 and 1 of 1980.

Mr. Peter Francis, learned Counsel appearing for the revision petitioner, raised the following two contentions challenging the validity of the

concurrent orders passed by the authorities below:

(1) A single petition for evicting two different tenants in respect of two independent shop bearing two different Door Numbers, fetching different

rates of rent. the tenancies commencing from two different dates, is not maintainable and as such the whole proceedings are vitiated.

(2) When the buildings in question are non-residential in character, the landlord cannot ask for eviction in respect of two shops out of the four, only

for residential purposes as and by way of additional accommodation

Point No. 1: In support of the first contention, Mr. Peter Francis referred to the following decisions. Relying on the observation made by a Division

Bench of this Court consisting of Rajamannar, C J., and Chandra Reddy, J. as he then was, in R. Venkatesachary and Others Vs. The Judge,

Court of Small Causes and Others, viz:

Though the definition of a building in the Act includes a portion of a building, it does not mean that the owner of a house, portions of which have

been let separately, cannot file an application for obtaining possession of the entire house as a building.

He contends that the owner can ask for eviction of only the entire building but not a part of the building, in a single petition. On going through the

above judgment it is very clear that the law laid down by the Bench therein is that a single petition seeking an order of eviction of the various

tenants occupying various portions of the same building, is well maintainable. Barring that, it cannot be said that the above ruling is to the effect that

in case the landlord asks for eviction of the tenants occupying the various portions of a building, he should file the petition for eviction of all the

tenants or that he cannot maintain a petition seeking eviction of some of the tenants in the said building. Therefore, I do not see any force in the

contention of the learned Counsel, based on the above decision, that the landlord in this case would have been justified only had he filed the

eviction petition against all the tenants occupying the four tenants. Hence, the above decision will not be of any help to the proposition put forth by

the learned Counsel for the revision petitioner. On the other hand, this decision will be of much help to the landlord as it enables him to file a single

petition for eviction of two or more tenants occupying portions of the same building.

The next decision relied upon by him is Umsalma Bibi v. Lakkia Gowder (1967)1 M.L.J.277. In that case, the landlord therein required an

entire building consisting of several door numbers or distinct tenements, for demolition and reconstruction, so that he could therein house his own

commercial undertaking. For that purpose, the landlord filed a single petition in respect of the entire structure u/s 14(1)(b) of the Act. It was urged

in that case that a single petition seeking eviction of various tenants was illegal, that there should have been distinct applications for each distinct

door number or tenant which was the subject-matter of a separate tenancy, because distinct defences might be put forward by the concerned

tenants and conceivably one such tenancy might be saved by the operation of Section 14, Sub-section (5), and not otherwise, and that it was

further conceivable that other unrelated grounds such as the ground of ''wilful default in the payment of rent'' might be included within the scope of

one such tenement but not another. The learned Chief Justice concluded saying--

I am clear that the landlord must file separate applications for each building or tenement as defined in the Act for purposes of Section 14(1)(b) of

the Act. When they relate to the composite structure or edifice, though with distinct tenements, it will be proper to treat such applications together,

and to dispose of them by means of a common judgment.

However, ultimately, the learned Chief Justice held:

I therefore hold that there is no justification for interference in revision in these cases, though I must equally make it explicit that, in my view, where

a landlord makes as application u/s 14(1)(b), in respect of a ''building'' as defined in the Act, he must make separate application in each such

instance, though all these ''buildings'' may be within one structure.

This decision also may not be much help to the case of the revision petitioner, because the eviction in the present case is not sought u/s 14(1)(6)

but u/s 10(i)(c). Secondly, in this case both the parties did not raise any objection on this point either before the Rent Controller or before of the

appellate authority, and only for the first time the learned Counsel is raising this point stating that there is no legal bar for advancing the plea of non-

maintainability of the petition at any stage of the proceeding, relying on the decision of the Supreme Court in State of Rajasthan v. Kalyan Singh 1,

wherein the Supreme Court has ruled that the plea of non-maintainability of the suit is essentially a legal plea and the fact that no specific pleas were

taken or no precise issues were framed is of little consequence. There is no dispute as regards this well-settled legal proposition that a plea could

be raised at any stage of the proceeding. But, what Mr. K V. Venkatapathi, learned Counsel for the respondent, would contend is that the present

plea of non-maintainability of the petition is bereft of any substance as there are a plethora of decisions contrary to the submission of the learned

Counsel for the petitioner. I shall refer to the decisions cited by Mr. Venkatapathi after citing the other decisions to which my attention was drawn

by Mr. Peter Francis.

10 Strong reliance was placed on yet another decision viz., State of Rajasthan Vs. Rao Raja Kalyan Singh, (Dead by his Lrs.), . The facts in the

said case were that there were three different premises of which two were non-residential in character and the other one residential in character.

The landlord filed a single petition u/s 10(3)(a)(i) of the Act seeking eviction of the tenant who was in occupation of the abovesaid three premises.

Admittedly, the tenant was paying a consolidated rent in respect of all the portions. Nainar Sundaram, J., while answering the question whether the

landlord therein could seek eviction of the tenant u/s 10(3)(a)(i) of the Act, when the said premises was non-residential in character and when he

could not make out a case for his requirement of the non-residential premises, to which the provisions u/s 10(3)(a)(ii) or (iii) alone would be

applicable, as the case may be, held that the action of the landlord seeking remedies u/s 10(3)(a)(i) of the Act in respect of a premises used for

non-residential purposes is not only a misconception but is also absolutely un-sustainable.

The above decision could be easily distinguishable on the facts of the present case. In the case which came up before Nainar Sundaram, J., the

landlord sought eviction in respect of a building, both residential and non-residential in character, by taking out an application only u/s 10(3)(a)(i),

which section could be invoked only for getting a residential building for residential purposes. If the relief of eviction is in respect of a non-

residential building, the application should be filed only u/s 10(3)(a)(ii) or u/s 10(3)(a)(iii). As the landlord in that case filed the application only u/s

10(3)(a)(i), the learnad Judge ruled that a single petition is not maintainable. As in the present case the landlord is seeking eviction of both the

tenants from the shops bearing Door Nos. 407 and 408 only by way of additional accommodation for residential purposes u/s 10(3)(c), the

principles laid down in Unnamalai Achi''s Case (1980) 93 L.W. 404 is not applicable to the facts of the present case.

Countering the argument of Mr. Peter Francis, Mr. Venkatapathi drew my attention to some of the decisions of the Supreme Court and of this

Court, in support of his contention that a single petition in respect of different tenancies is maintainable.

First, he cited Brahmayya and Co., Official Liquidators of Hanuman Bank (In liqn.) Vs. Mohammedsa Rowther (died) and Others, . I have

already referred to this decision earlier. Therefore, I feel that I need not reiterate the principle laid down in that case. Suffice it to say that the

Division Bench in that case has held that the owner of a house can file a single application for eviction in respect of the entire house"" consisting of

various portions which have been let to separate tenants.

Kailasam, J., as he then was, while disposing of C.R.P. No. 869 of 1970 of this Court, by his judgment dated 23rd October, 1970, in

Viramallu Swarajya Lakshmi Mancharamma Vs. Viramallu Satyanarayana and Another, that a single petition by a landlord for evicting the tenants

occupying various portions of the same building, is maintainable. In that case, the tenant, in support of his contention that separate petitions ought to

have been filed by the landlord for evicting the tenants, even though they occupied the same building, placed reliance on two decisions, both

rendered by Anantanarayanan, C.J., viz., Umsalma Bibi v. Dakkia Gowder (1967) 1 M.L.J. 277 and P. Govindaswami Naicker Vs. S.R. Kerwar

and Others, . It is to be noted that in Umsalma Bibi''s case (1967) 1 M.L.J. 277 the learned Chief Justice, notwithstanding his observation that the

landlord must file separate applications for each building or tenant, ultimately dismissed that revision petition, holding that no prejudice was shown

to have been caused to the tenants by the institution of a comprehensive or composite application. In the other case viz, P. Govindaswami Naicker

Vs. S.R. Kerwar and Others, the land-lord filed a petition u/s 6(1) of the Act contending that he was entitled to claim from the tenants the excess

of the amount of tax consequent upon the increase in the property tax and water tax, and he filed a single petition as against six tenants. When the

matter came up by way of revision before the learned Chief Justice, he held that there was no illegality tn the institution of a single petition, because

in all such cases the real question was whether there was any prejudice caused to the parties by the procedure. In both the cases, the decision

rendered by the Division Bench of this Court in R. Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, does not seem

to have been cited. Kailasam, J., as he then was, following the Bench decision in R. Venkatesachary and Others Vs. The Judge, Court of Small

Causes and Others, as mentioned above, held that a single petition is maintainable.

It would be appropriate to refer to the decision of the Supreme Court in S.M. Gopalakrishna Chetty Vs. Ganeshan and Others, in which their

Lordships of the Supreme Court, repelling a contention that a single petition u/s 14(1)(b) with regard to two tenancies, although in the same

premises, one for residential purpose and the other for non-residential purpose, is not maintainable, expressed their view that ""we do not find any

substance in such a contention as the tenant is one.

Sathiadev J., in T.N. Krishnamoorthy Vs. Jagat Textiles, has following P. Govindaswami Naicker Vs. S.R. Kerwar and Others, . R.

Venkatesachary and Others Vs. The Judge, Court of Small Causes and Others, and S.M. Gopalakrishna Chetty Vs. Ganeshan and Others,

observed thus:

It cannot any longer be pleaded that a landlord cannot file a single petition in respect of different tenancies, particularly when the same tenant is in

occupation of the concerned premises.

At this juncture, Mr. Peter Francies would urge what Sathiadev, J., has expressed in the above case is that a single petition is maintainable only in

case the tenancy is the same. But, I find from the judgment that the contention has no force, because in the subsequent paragraph of the judgment,

Sathiadev, J., has pointed out that--

The right of a landlord who seeks for additional accommodation to file a single petition in respect of different tenancies, having been held to be a

proper petition, the tenant can no longer claim that the proposed amendment cannot be allowed"". The proposed amendment in that case was for

the inclusion of Door No. 16. Manjanakara Street, Madurai which was not included along with Door No. 51. Mahal Street;, Madurai, due to

typographical error.

From all the decisions referred to above it is clear to my mind that the single petition filed by the landlord in the present case u/s 10(3)(c) of the

Act for evicting the tenants, on the ground that the buildings are bona fide required by the landlord as and by way of additional accommodation for

his residential purposes, in maintainable and this point is answered accordingly against the tenant and in favour of the landlord.

Point No. 2. Mr. Peter Francis has vehemently contended that inasmuch as the building in the eviction petition is characterized and described as

non-residential in nature, the landlord cannot be allowed to seek eviction of the non-residential building as and by way of additional

accommodation for his residential purposes. Before adverting to the argument advanced by the learned Counsel, it would be worthwhile to

mention here that only the properties scheduled in the petition viz., the shops bearing Door Nos. 407 and 408, are described as non-residential

buildings, but set the main building viz., Door No. 409. Section 2(2) of the Act defines the word ''building'' as meaning any building or hut or part

of a building or hut, let or to be let separately for residential and non-residential purposes and it includes the garden, grounds, outhouses etc., falling

under Clauses (a) and (b) of that sub-secticn. I think it is not necessary for me to elaborately deal with the definition of the word ''building''. As

pointed out in Umsaima Bibi''s ease (1967)1 M.L.J. 277 by Anantanarayanan, C. J., the definition gives in the Act is a technical one and includes a

part of the building. The relevant section with which I am concerned in this case is Section 10(3)(c), which enacts that a landlord, who is occupying

only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in Clause (a) of Section 10(3), 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 question is whether a landlord can ask for a portion of a building let out for non-residential purposes, by way of additional

accommodation for his residential purposes. On this aspect of the question, there are various decisions rendered by this Court; of which I shall

presently refer to some.

In A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar, the landlord sought, u/s 7(3)(c) of the 1949 Act (corresponding to Section 10(3)

(c) of the present Act), eviction of Door No. 290 let out for non-residential purposes and for the purpose of widening a staircase lying adjacent to

it in Door No. 291 under his occupation and for purposes of putting up a bath room and a lavatory, on the ground that the existing accommodation

in the building under his occupation was insufficient for a comfortable living of all the members of his family. A Division Bench of this Court, after

discussing the legal position on this aspect, found that the requirement of Door. No. 290 was a bona fide and consequently confirmed the order of

eviction. The facts of the present case are very similar to the facts in the above-cited decision and hence the said decision could be squarely

applicable to the facts of the present case.

Ismail, J., as he then was, in Rangaswamy Reddiar v. Minor Jayaraj C.R.P No. 2380 of 1977, dated 6th December 1977 T.L.N.J. 9 while

answering a question whether the landlord could seek eviction of a tenant in occupation of a non-residential building for residential purposes by

way of additional accommodation u/s 10(3)(c) held:

Therefore, I am unable to hold that the landlord cannot obtain vacant possession of a portion of the building on the ground of requirement of

additional accommodation, if that portion was being used by the tenant for non-residential purposes and the landlord requires the same for

residential purposes.

Kailasam, J., as he then was, in Saraswathi Sriraman and Another Vs. Pappi Chetty Raghaviah Chetti''s Charities and Others, held as follows:

In Section 10(3)(c), the building referred to is the entire building and not the building with the restricted meaning, i.e., in the occupation of the

tenant alone or of the landlord alone. The building in this clause would take in the entire building that is in occupation of the landlord as well as the

tenant and when the landlord wants additional accommodation, he may either need it for residential or for non-residential purposes as long as it is

in the same building. Strong reliance was placed on the words ''as the same may be'' as indicating that he can apply only for residential or non-

residential purposes as referred to in Section 10(3)(c). I am not able to accept this contention for the words are plain enough. The purpose behind

the section also appears to be obvious that in the case of additional accommodation, the landlord is given as it were little indulgence.

A Division Bench of this Court consisting of Ismail, C.J., and Ratnam, J., in M. Thirupathi Nadar and Sons v. Dr. S.L. Kantha Rao C.R.P. No.

1815 of 1978, dated 5th March, 1980 T.L.N.J. 145 while adverting to the meaning of the word ''building'' occurring in Section 10(3)(c) of the

Act, observed thus:

This decision was cited for the contention that the word ''building'' occurring in Section 10(3)(c) need not have the same meaning as given in

Section 2(2) of the Act and will take in the entirety of the building as was held by Kailasam, J., as he then was, in the judgment which we have just

dealt with Saraswathi Sriraman and Another Vs. Pappi Chetty Raghaviah Chetti''s Charities and Others, . There is no difficulty in holding that

wherever the word ''building'' occurs, it need not have the same meaning as given in Section 2(2) of the Act, because Section 2(2) itself opens by

saying ""in this Act, unless the context otherwise requires...."" Therefore, if the context in a particular provision requires that the word ''building''

should not be understood as defined in Section 2(2), certainly it is open to the Court to give the normal, natural and ordinary meaning which it is

capable of, and for that purpose, it is not necessary to rely upon any decision.

Then the Bench, considering the scope and applicability of Section 10(3)(c) of the Act, has held as follows:

In order to make Section 10(3)(c) applicable to the same (building), it is imperative that it must be made clear whether the building to a residential

one or a non-residential one, because, as we shall show later, the purpose for which additional accommodation is required is inextricably bound up

with the nature of the building.

The principle laid down in the above decision is, in my view, to the effect that the Court should, first of all, ascertain the nature of the building as a

whole and find out whether it is residential or non-residential in nature, that if it is found that it is residential in nature, the Court can allot the portion

sought to be evicted as additional accommodation for residential purposes even if it is let out for non-residential purposes, and that if the Court

comes to the conclusion that the building is non-residential in nature, additional accommodation can be sought only for non-residential purposes. In

the present case, the major portion of the main building lying behind and adjacent to the shops, (measuring 1450 sq ft. is admittedly residential in

character and also is put to residential use by the landlord. The portions now sought to be evicted, one of the dimension of 101 x 9 1 (D. No. 407)

and 101 X5 1/21 (D. No. 408). These two portions are lying adjacent to the bed room and to the hall, lying to the left side of the passage.

Therefore, in view of the judgment of the Division Bench in Tirupathi Nadar''s case (1980) T.L.N. J. 145 referred to above, I do not see any

illegality in the concurrent finding of the authorities below, in ordering eviction of the premises in question, on the ground of the landlord''s

requirement for residential purposes as and by way of additional accommodation, though it was let out for non-residential purposes. See also

S.U.S. Davey and Sons Vs. Liberty Dry Cleaners, . The facts and circumstances of this case make it clear that the landlord bona fide requires the

building as found by the authorities below and his plea cannot be characterised as a make-believe or device to put the tenant out of possession, nor

can it be said that there is any oblique motive on the part of the landlord. For the above reasons, this point is also answered in favour of the

landlord and against the tenant-revision petitioner.

Then, it is urged on behalf of the tenant that the hardship that would be caused to him by ordering eviction would be greater than the

inconvenience that would accrue to the landlord in case eviction is not ordered in this case and that this comparative hardship has not been taken

into consideration by the appellate authority. In fact, the appellate authority in para-10 of its judgment, has examined this contention and has come

to the conclusion that:

Since the third respondent (the revision petitioner herein) owns several houses at Madurai Road, it could not be said that the hardship which might

be caused to him would outweigh the advantage to the landlord.

On this point, Mr. Peter Francies drew the attention of this Court to the decision of the Supreme Court in Smt. Smriti Marthand Vs. District Judge

of Kumaun, Nainital and Others, wherein it has been pointed out by the Supreme Court that the authorities is rent control proceedings for eviction

of a tenant, should take into account the comparative hardship of the landlord and the tenant.

The argument of comparative hardship is based upon the proviso to Section 10(3)(c) which reads that in 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

advantages to the landlord. As pointed out by a Division Bench of this Court in A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar, .

It is certainly not the object of the proviso to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales, giving the

benefit of slight titling in favour, of the tenant. The substance of the provision is that the Court should take into account the possible hardship that

would ensue to the tenant if he were to be evicted, and, if the Court were to find in a proper case, that while the hardship resulting to the tenant

would be considerable, the advantage according to the landlord would be little or small, the application might be rejected.

In the present case, the appellate authority has considered the comparative hardship and ultimately confirmed the order of eviction, holding that the

hardship which may be caused to the tenant does not outweigh the advantage to the landlord and hence this contention also fails.

Finally, the learned Counsel, relying on S.K. Verma Vs. Smt. Kamla Kapur, would contend that inasmuch as the building Door No. 407

occupied by the tenant who has suffered eviction and who had not preferred fany appeal, is available for the landlord, the appellate authority has

not taken into cunsideration the changed circumstances in this case and considered whether the building bearing Door No. 408 is also bona fide

required by the landlord. There cannot be any controversy that the landlord sought eviction of both the shops bearing Door Nos. 407 and 408.

The Rent Controller has found that both the shops are bona fide required by the landlord as additional accommodation for his residential purposes.

As I have pointed out during the narration of the facts of the case, these shops bearing Nos. 407 and 408 are to the left side of the passage and

both the shops are contiguous to each other and form one block and when the Rent Controller has found that both the shops are bona fide

required by the landlord, there is no question of changed circumstances in this case. Consequently, it cannot be said that the appellate authority has

failed to take into account the changed circumstances

For all the reasons stated above C.R.P. No. 1548 of 1981 has no merit and it is dismissed. No costs. Time for vacating three months from this

date.

In view of the dismissal of C.R.P. No. 1541 of 1981 and C.R.P. No. 1549 of 1981, is also dismissed. No costs.