Ramalingam Pillai (died) and 7 others vs Murugesan and another

Venkataswami, J.—This Revision Petition is preferred by the tenants in rent control proceedings, aggrieved by the order of eviction passed

by the Rent Controller and confirmed by the Appellate Authority. The respondents herein as landlords filed R.C.O. No. 1 of 1985, on the file of

the Rent Controller (District Munsif), Perambulur, for eviction of one Ramlingam Pillai and one Nagarajan, respectively father and son, on the

grounds that the premises in their occupation was required for their own use and occupation, and that the said Ramali Pillai has unauthorized sub-

let the premises in favor of Nagarajan.

In view of the fact that the ground of sub-letting was not accepted by both the authorities below, we are now concerned only with the case of

bona flied requirement of the premises by the landlords for their own use and occupation.

While dismissing the case of the landlords for eviction on the ground of sub-letting, both the Authorities below have allowed the eviction petition

on the ground of requirement for own use and occupation.

The said Ramalingam Pillai died pending disposal of this Revision Petition and the second petitioner herein has been recorded as legal

representative of the said Ramalingam Pillai, and petitioners 3 to 8 have been brought on record as other legal representatives of the deceased

Ramalinga Pillai as per the Order in C.M.P. Nos. 1398 and 1399 of 1991.

The point that was urged before me by the learned counsel appearing for the petitioners was that the necessary pleadings for invoking S. 10(3)

(a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ''the Act'') are not there, and that there is also

no evidence to substantiate the requirement of the landlords under S. 10(3)(a) (iii) of the Act. In other words, one of the requirements for invoking

S. 10(3)(a) (iii) of the Act is conspicuously absent in the petition for eviction.

It is not disputed by the learned counsel for the respondents/landlords that in the petition for eviction, there is no averment to the effect that the

son of the first respondent herein does not own any non-residential premises of his own to enable the landlords to invoke S. 10(3)(a)(iii) of the

Act. In the evidence also, the first respondent''s son, as P.W. 1 has merely stated that he has no other place and he has no other shop except the

suit shop. The learned counsel for the petitioners submitted that in the absence of any necessary pleading, the order of eviction under S. 10(3) (a)

(iii) of the Act cannot be sustained. Assuming that the first respondent''s son as P.W. 1 has said something in the evidence that will not help him in

the absence of any pleading. In support of his contention, he placed reliance on a judgment of the Supreme Court in Hasmat Rai and Another Vs.

Raghunath Prasad, and also two decisions of this court in A.N. Shanmuga Sundaram Mudaliar and 4 others v. A.P. Mani 1992 TLN J 110 and

Yusuf Sait & Sons V.A. Shafeed Ahmed. 100 L.W 278.

The learned counsel appearing for the respondents/landlords, however, submitted that though there is no pleading, in as much as the son of the

first respondent herein as P.W. 1 has stated that he does not own any other premises of his own and that the demised premises was required for

his use, it must be taken that the requirement of S. 10 (3)(a)(iii) of the Act is satisfied. In support of this contention, he placed reliance on the

following decisions:- Kewal Singh Vs. Smt. Lajwanti, Masilamani Vs. V. Baliah,

I have considered the rival submissions.

It is common ground that there was no Pleading to the effect that P.W.1 for whose benefit the suit premises was bona fide required, has no

other non-residential building of his own in the same city. Of course, he has vaguely stated in the evidence that he does not own any other shop.

In Hasmat Rai and Another Vs. Raghunath Prasad, , the Supreme Court has stated, under similar circumstances, as follows:-

S. 12 starts with a non-obstante clause thereby curtailing the right of the landlord to seek eviction of the tenant which he might have under any

other law and the right of eviction is made subject to the overriding provision of S. 12. It is thus an enabling section In order to avail the benefit

confirmed by S. 12 to seek eviction of the tenant the landlord must sa (sic)fy the essential ingredients of the section. The landlord in (sic)s case

seeks eviction of the tenant under S. 12 (1) (f). He must, therefore, establish (i) that he requires bona fide possession of a building let for non-

residential purpose for continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his

own in his occupation in the city or town concerned. The burden to establish both the requirements of S. 12 (1) (f) is squarely on the landlord. And

before an allegation or fact to obtain the relief required is permitted to be proved, the law of leadings requires that such facts have to be alleged

and must be put in issue. Ordinarily, therefore. when a landlord seeks eviction under S. 12(l)(f) the court after satisfying itself that there are proper

pleadings must frame two issues namely (i) whether the plaintiff-landlord proves that he bona fide requires possession of a building let to the tenant

for non-residential purpose for continuing or starting his business, and (ii) whether he proves that he has no other reasonably suitable non-

residential accommodation of his own in the city or town concerned. Without elaborating, we must notice a well-established proposition that any

amount of proof offered without pleadings is generally of no relevance.

In 1992 TLNJ 110 (supra), while considering a case under S. 10(3) (a) (iii) of the Act, I have observed as follows:-

It is seen from the above extract that the landlord has deposed that he does not own any other building except the petition mentioned premises.

Such evidence is lacking in this case as noticed earlier. Therefore, this case also does, not help the petitioner. In the absence of any pleading and

evidence, I have to hold that the requirement of S. 10(3)(a)(iii) of the Act has not been complied with in this case. Therefore, the learned counsel

for the respondent was right in pointing out that defect.

In 100 L.W.278 (supra), M.N. Chandurkar, C.J., has held as follows;

There can be no doubt that if the owner of an accommodation is able to establish that the accommodation available for his occupation is

insufficient, he could bona fide claim accommodation in the possess. on of his tenant by way of additional accommodation. But if this has to be

done, the landlord should come out with a clear case that the accommodation available to him is insufficient for his use and for the purpose of

proper adjudication of the claim of the landlord, the landlord must set out as to why the accommodation is found to be insufficient, xx

On the vague allegation like the one made in the instant case, the landlord cannot succeed by stating for the first time in evidence that he has to

make arrangements for the visiting customers and relatives. The averment in the original petition is merely that the landlord is in possession of the

first floor and hence be requires the ground floor as additional accommodation, so that he could occupy the entire premises for his residential use.

The above extract will clearly support the contention put forward by the learned counsel For the petitioner. On the other hand, the cases

Relied on by the learned counsel for the respondents are not directly on point.

In 1989-1-L.W. 123 (supra), Srinivasan, J. has held that the burden of proving that the landlord owns another building in the city is on the

tenant, and the landlord cannot be expected to prove a negative. But the point is clear that there must be pleading first, and then only the question

of proof arises, in the absence of any pleading, the question of proof does not arise.

In 1977 T.L.N.J. 490 (supra), Ismail, J. is he then was, has considered what is meant by ""a business he is carrying on"". We are not

immediately concerned with that question for deciding the controversy now raised before me.

In Kewal Singh Vs. Smt. Lajwanti, , the Supreme Court has made the following general observation regarding the scope of the provisions of

the Act:-

Before discussing the relevant provisions of the Act it may be necessary to observe that the Rent Control Act is a piece of social legislation and is

meant mainly to protect the tenants from frivolous evictions. At the same time, in order to do justice to the landlords and to avoid placing such

restrictions on their right to evict the tenant as to destroy their legal right to property certain salutary provisions have been made by the legislature

which give relief to the landlord. In the absence of such legislation, a landlord has a common law right to evict the tenant either on the determination

of the tenancy by efflux of time or for default in payment of rent or other grounds after giving notice under the Transfer of Property Act. This broad

right has been curtailed by the rent control legislation with a view to give protection to the tenants having regard to their genuine and dire needs.

While the rent control legislation has given a number of facilities to the tenants, it should not be construed so as to destroy the limited relief which it

seeks to give to the landlord also. For instance one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country

is the question of landlord''s bona flied requirement personal necessity. The concept of bona fide necessity should be meaningfully construed so as

to make the relief granted to the landlord real and practical.

As the petitioners herein (tenants) have to succeed on the question of absence of necessary pleading, the question of bona fides need not be gone

into in this case and, therefore, the decision of the Supreme Court in the above case is also of no relevance.

After reserving and preparing the order, but pronouncing the same in this Revision M. Nemichand Jain Vs. P. Ethirajan, petition, learned

counsel appearing for the respondents sought permission to circulate a judgment of this Court in M. Nemichand Jain v. P. Ethirajan to support his

contention that even though there was no specific averment to the effect that the person for whom the premises was inquired for carrying on

business had no nonresidential premises of his own in the same town, that will not disentitle the landlord to get the relief, provided the same is

established by way of evidence. It is true, Srinivasan, J. in the sand decision M. Nemichand Jain Vs. P. Ethirajan, has held that though there is no

specific averment, if is from the petition that the respondent is seeking eviction of the petitioner herein on the footing that he requires the premises

for the purpose of his son''s business which is being carried on in a rented premises at No. 224, Thambu Chetty Street Madras-1. Taking into

consideration all the aver mentis made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of bona fide

requirement. The Courts have to consider only the evidence on record and decide whether the bona fide requirement has been made out. The

absence of an express sentence in the pleading does not vitiate the proceedings before the Courts below''. It is seen from the above that in the

petition there was material together necessary inference. Further, the judgment of the Supreme Court mentioned in this Older, namely, (1981) 1

S.C.C. 103 (supra) was not brought to the notice of the learned Judge (Srinivasan, J.) Even otherwise, on facts, in this case, apart from the fact

that there was no specific averment, the oral evidence was also not so clear Therefore, I do not think that the decision cited by the learned counsel

for the respondents, namely. M. Nemichand Jain Vs. P. Ethirajan, will come to his rescue. As I am of the view that the absence of necessary

pleadings and clear evidence is fatal to the petition for eviction filed by the landlords She petitioners/tenants are entitled to succeed on that ground.

Accordingly, the Civil Revision Petition is allowed. However, there will be no order as to costs.