S. Balamani vs V. Periaswami

A.R. Lakshmanan, J.—The landlady has preferred the above revision against the order of the Appellate Authority reversing the order of the

Rent Controller ordering eviction. The landlady originally filed the petition for eviction for owner''s occupation under S. 10(3)(a)(i) of the Tamil

Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) since she was residing in a rental premises. She purchased

the property in question on 11-1-1983 from her aunt. When she purchased the same, the property was under the occupation of three tenants

including the respondent herein. She filed three R.C.O.Ps., against the three tenants for eviction on the ground of owner''s occupation. The petition

filed against the respondent herein is R.C.O.P. No. 46 of 1985. The Rent Controller ordered eviction on 23-1-1987. In the meanwhile, two

tenants by name Ramachandra and Mahalingam have vacated the portions in their occupation. Thereupon, the landlady occupied the portions

vacated by the two tenants.

Against the order of eviction passed by the Rent Controller, the tenant/respondent herein filed R.C.A. No. 43 of 1987 before the Appellate

Authority/Subordinate Judge, Madurai. The tenant has also filed a petition for appointment of a Commissioner before the Appellate Authority to

find out as to whether the landlady was occupying her own house or residing in a rental premises. The Commissioner filed a report stating that the

landlady has been in occupation of a portion of her own premises which was vacated by the tenants Ramachandran and Mahalingam. On this

subsequent event, the Appellate Authority has reversed the order of eviction passed by the Rent Controller on the ground that the landlady is

occupying a portion of her own premises and that the portion under her occupation is more than sufficient for her family. Aggrieved against the

order of the Appellate Authority, the landlady has filed the present revision.

I have heard Mr. V. Natarajan for the landlady/revision petitioner and Mr. K. R. Thiagarajan for the tenant/respondent.

According to Mr. V. Natarajan, the finding of the Appellate Authority that the landlady is not residing in a rented premises, in the absence of any

legal proof contrary to the findings of the Rent Controller is against law and not sustainable, and that the Appellate Authority has erred in reversing

the well reasoned order of the Rent Controller. It is also further contended that filing of earlier application by the vendor of the landlady cannot at

all be a bar for the present application being filed. Therefore, Mr. V. Natarajan contended that the entire approach of the Appellate Authority is

patently wrong and that the further finding of the Appellate Authority that the portion in the occupation of the landlady is more than sufficient for her

is beyond the scope of the Appellate Authority and, therefore, the same is liable to be set aside.

Mr. K. R. Thiagarajan, on the other hand, contended that the order of the Appellate Authority is a well reasoned one and that the same is not

liable to be interfered with by this Court. He would also submit that the landlady has not placed before Court any proof in regard to her occupation

of the rental premises.

I have carefully gone through the entire pleadings and the documents filed by both parties and of the evidence tendered. It is seen from the

eviction petition filed by the land-lady that she was in occupation of Door No. 7, Bharathiar Road, Madurai-10. Admittedly, she filed three

eviction petitions against the respondent herein and two other tenants. The petitions were filed under S. 10(3)(a)(i) of the Act for owner''s

occupation of the entire premises under the occupation of the three tenants in Door No. 8-A, Bharathiar Road, Madurai-10. The landlady has

specifically stated that she purchased the house bearing Door No. 8-A, Bharathiar Road under the occupation of the tenants for her own use and

that she and her children are living in a rented house and that, therefore, the building in question is absolutely necessary for the purpose of their own

occupation and, therefore, the respondent/tenant is liable to be evicted.

The tenant filed a statement of objection denying the allegations contained in the eviction petition. Though it is contended by Mr. K. R.

Thiagarajan that there is no proof to show that the landlady is occupying Door No. 7, Bharathiar Road, Madurai-10, the same has not been

specifically denied by the tenant in his statement of objections. The tenant has also denied the purchase of the property in question by the landlady

for her own use. The tenant has further stated that the landlady is having her own house and is living there.

The landlady examined herself as P.W. 1. In the chief-examination, she has specifically stated that she is living in a rented house by paying a sum

of Rs. 200/- by way of rent. Even though the tenant has denied the landlady''s occupation of a rented premises, nothing has been elicited from the

landlady in cross-examination to discredit her specific evidence in chief-examination. Even in cross-examination the landlady has specifically stated

that she does not own any other house and that she is not occupying her own house. She was recalled on 1-12-1986 and in the re-examination she

deposed that Ramachandran and Mahalingam have vacated the portions in their occupation during the pendency of the proceedings in Court and

that she filed the eviction petition for her own occupation. The tenant examined himself as R.W. 1. According to him, the claim of the landlady for

her own occupation is not bona fide, that he has no knowledge about the landlady living in a rented house and that the landlady, her mother and

brother are not living in a rented house,

As stated above, the tenant filed the appeal before the Appellate Authority and contended that the landlady is residing only in a rented house

and that the finding of the Rent Controller, in the absence of any document or proof of her occupation of a rental premises is absolutely wrong. It is

also contended that no sale deed or any other document has been produced by the landlady and that the non-production of the same is fatal to her

case. It is further alleged that the landlady is already in occupation of two portions, which were vacated by the other two tenants and, therefore,

her claim for occupation of the portion under the occupation of the tenant cannot at all be considered as bona fide.

During the pendency of the revision, the landlady filed C.M.P. No. 4489 of 1995 to raise additional grounds. The same was served on the

counsel for the tenant on 16-3-1995. The tenant has not filed any counter to the same. However, the learned counsel for the tenant very strongly

objects to the petition being entertained at this belated stage.

It is well settled that any subsequent event can be taken into account before the final adjudication of the matter by this Court. As already

stated, the landlady was not in possession of any premises of her own when she filed the eviction petition. According to her, she was occupying a

rental premises. Thereupon, she purchased the entire house on 11-1-1983 for her occupation. At that time, there were three tenants occupying

three different portions. Therefore, the landlady filed three petitions for eviction of the tenants for her own occupation. During the pendency of the

proceedings, two of the tenants have admittedly vacated the premises. Since two of the tenants have vacated, the order of eviction was passed

against the present respondent alone by the Rent Controller. The landlady occupied the portions vacated by the two other tenants. Since she

intends to occupy the portion now in the possession of the respondent herein also, she filed the present application C.M.P. No. 4489 of 1995 for

raising additional grounds in view of the subsequent event of her occupation of the two portions vacated by the two tenants in the very same

premises. In similar matters, this Court has entertained and allowed such requests. I shall deal with the authority on this point later.

When the landlady filed the petition for owner''s occupation under S. 10(3)(a)(i) of the Act, the Rent Controller has ordered eviction on the

established facts. The subsequent event, therefore, in my opinion, would not disentitle the landlady to get the relief against the present respondent

for seeking relief under S. 10(3)(c) of the Act. As already seen, the landlady filed three eviction petitions for her own occupation of the entire

premises bearing Door No. 8-A, Bharathiar Street, Madurai-10. Now that the two tenants have vacated the premises under their occupation, the

landlady has occupied those portions. In my opinion, the landlady is entitled to maintain this application in view of the changed subsequent

circumstances. Therefore, I allow C.M.P. No. 4489 of 1995 for the reasons to be stated infra.

In fact, the Appellate Authority has taken the subsequent event of the landlady occupying a part of the building into consideration and reversed

the finding of the Rent Controller ordering eviction. Of course, as pointed out by Mr. K. R. Thiagarajan, the landlady would have filed this

application even before the Appellate Authority or at least in this Court immediately after the filing of the revision. However, the non-filing of the

petition before the Appellate Authority or before this Court earlier will not, in my opinion, disentitle the landlady from moving such petition at this

stage. I, therefore, reject the objection raised by the learned counsel for the tenant.

The Appellate Authority, as pointed out by Mr. V. Natarajan, has considered the ground of additional accommodation and held that the part

of the building in her occupation is sufficient. In my opinion, it is not for the Court or for the tenant to say which portion should be occupied by the

landlord or the portion available or already occupied by the landlord is sufficient or not. As such the present application filed by the landlady by

raising additional ground viz., requiring the premises in question for additional accommodation, in my view, would not cause any prejudice to the

tenant.

The following are the additional grounds raised by the landlady:

(a) The landlady requires the part of the premises under the occupation of the tenant for additional, accommodation for residential purpose under

S. 10(3)(c) of the Act-

(b) The findings of the Appellate Authority that the part of the premises under the occupation of the landlady is sufficient are against law and not

sustainable.

(c) The Appellate Authority has failed to consider the mandatory requirement of finding out the comparative hardship and advantages to the tenant

and the landlady. As such, the order of the Appellate Authority is to be set aside.

As pointed out by Mr. V. Natarajan, the Appellate Authority has totally failed to consider the mandatory requirement of finding out the

comparative hardship and advantages to the tenant and the landlady. As such, the order of the Appellate Authority is liable to be set aside.

Likewise, the finding of the Appellate Authority that the part of the premises under the occupation of the landlady is sufficient is also not

sustainable. In an identical matter, M. N. Chandurkar, C.J., in K. Ganesan v. K, Padmavathi Amma, 1987 100 Mad LW 381 : (AIR 1989 NOC

137) has considered the Court''s power in taking into account the subsequent events. That was also a case of the landlady coming into possession

of some accommodation during the pendency of her eviction petition. The Court held that that cannot be a ground for disentitling her the relief of

eviction on the ground of requirement for owner''s occupation. I am also of the view that it would not be proper for the tenant to say that merely

because the landlady has secured some accommodation during the pendency of the litigation before the Appellate Authority, her claim which was

originally determined with reference to the provisions of Section 10(3)(a)(i) of the Act must be thrown out at this stage. M. N. Chandurkar, C.J.,

has also pointed out that the provision of law mentioned in the petition does not determine, either the nature of the proceedings or the nature of the

relief to be granted to a party and that it is the duty of the Court to find out whether on facts established a party is entitled to any relief or not.

Therefore, even though originally the petition for eviction was made under Sec. 10(3)(a)(i) of the Act on the ground that the landlady did not have

any accommodation of her own and that she was living in a tented premises, the order of eviction cannot be interfered with merely on the ground

that subsequently the landlady has come into possession of some accommodation even though that accommodation does not fully meet the need of

the landlady. Here also, there is no doubt that the petition as framed originally when it was made was clearly maintainable because at that time the

landlady was not in occupation of any premises of her own, and according to her, she was in occupation of a rented premises bearing Door No. 7,

Bharathiar Road, Madurai-10. Therefore, I am of the view, that the present application is maintainable.

The subsequent event pointed out by me above will certainly entitle the landlady to maintain the application and also ask for relief under Sec.

10(3)(c) of the Act viz., additional accommodation. Allowing the said application would, in my opinion, only meet the ends of justice. The tenant is

not prejudiced in any manner if the landlady is allowed to occupy the portion under his occupation. This-apart, such petition in my view can be

entertained even at the revisional stage in order 10 avoid multiplicity of proceedings between parties and for avoidance of unnecessary litigation

expenses. For all the aforesaid reasons, I am of the view, that the order of the Appellate Authority is liable to be set aside.

In the result, the Civil Revision Petition and C.M.P. No. 4489 of 1994 are allowed and the order of the Appellate Authority is set aside.

However, there will be no order as to costs.

After the pronouncement of the order, Mr. K. R. Thiagarajan, learned counsel for the tenant wanted some time to vacate the premises. His

request for grant of time will be considered on his filing an affidavit of undertaking from the tenant within three weeks from today.

Order accordingly.