Sikkander Tulkarnai vs P. Syed Abdul Kader alias Thaikka

Pratap Singh, J.—This civil revision petition is directed against the judgment in R.C.A. No. 25 of 1991 on the file of the appellate authority

(Principal Subordinate Judge), Madurai by which the learned appellate authority had allowed the appeal, reversing the judgment in R.C.A. No.

410 of 1084 on the file of the Rent Controller, Madurai.

Short facts are : The respondent has filed a petition against the petitioner u/s 10(3)(a) of the Tamil Nadti Buildings (Lease and Rent Control)

Act, 1960 (hereinafter referred to as ''the Rent Cohtror Act'') for an order of eviction on the ground that the house, mentioned in the petition, was

let out to the tenant, that the tenant is in occupation of the same, and that he requires it bona fide for his family''s own occupation. His claim was

resisted by the tenant on the ground that there was an oral agreement, that he could continue to occupy the building, as long as he desires, that the

requirement of the petitioner is riot bona fide, that theresp6ndent is residingin thequarters allotted to his wife, who is working as5 a Medical Officer

in the Employees'' State Insurance Government Hospital at Thallakulam, that he had iiled this petition, only with an intention to evict the petitioner

and to rent the building for a higher rent and to get huge advance. After elaborate enquiry, learned District Munsif has dismissed the petition.

Aggrieved by the same, the petitioner before the trial court filed an appeal in R.C.A. No. 25 of 1991 before the Appellate authority who, after

hearing the parties, has allowed the petition. Aggrieved by the same, the respondent before the lower appellate court, has come forward with this

revision.

Ms. V. Sumathi, learned Counsel appearing for the revision petitioner, would submit that it has come to light during the course of trial that a

house has been allotted to the landlord''s wife by the Housing Board and in as much as that house $as available, it cannot be stated that the peti-

tionerorhis family members do not own anyother houseof their own, which would be entitled them to claim the house in question, for their own use

and hence the claim of the landlord will have to be rejected. Learned Counsel would further submit that subsequent events can be taken into

account and the above is a subsequent event, which is very relevant and it has to be taken into account while deciding the question of requirement

for own use by the petitioner. Learned Counsel also submitted that the appellate authority had brought in materials, which were not pleaded and

brought in materials which were not available in evidence, in his judgment and thus extraneous matters had influenced his decision and hence, it is

liable to be set aside. I have also heard learned Counsel for the respondent Mr. N. Sankaravadivelu, eventhough this is at the stage of admission.

I have carefully considered the submissions made by learned Counsel for the petitioner. For the purpose of convenience, I shall refer to the

parties, as they are arrayed in the trial court. In thatpetition, it is stated that the petitioner needed the demised for.his own use and the respondent

kad to be evicted from the demised premises; It is also stated that the petitioner''s requirements of the demised premises for his family''s occupation

is bonafide and that the petitioner has no other ihouse property except the demised property, within the limits of Madurai City. It is further stated

that the petitioner has got a large family, that his jjehildren are studying in various schools that the petitioner is residing in the rented quarters at

present and that he is put to great difficulties. Thus, he would make it clear that he requires the house for his own occupation and his requirement is

bonafide. In the statement of objections filed by the respondenl/tenant in paragraph 4, he has stated that the requirement of the premises by the

landlord for his own occupation is false and he is residing in a quarters which is alloted to his wife, a Medical Officer. It is not in dispute that the

petitioner is not owning any other house of his own.

As P.W. 1, the petitioner has stated that he requires the house for his own use, that he is living in a rented house, at Ellis Nagar for the past three

months and that he does not own any house apart from the demised house. In cross-examination, he haddeniedthesuggestion that the house,

inwhich he is living now belongs to his wife. The respondent, who was examined as R.W. 1, has stated that the petitioner is residing in his own

house. A Junior Assistant of the Tamil Nadu Housing Board was examined on the side of the respondent. He had brought the file regarding the

house bearing No. D-123 in Ellis Nagar. He has stated that the house was allotted to oneNeelayadakshi, that she had paid a sum of Rs. 1,90,000

for the said house and that the petitioner is the husband of the said Neelayadakshi. In cross-examination, he has stated that the said house was

allotted to her on 26.4.1988 and that the title to the house was not given to her and that the house is still being maintained by the Housing Board,

that the Housing Board has got the right to cancel the allotment for valid reasons, that in the agreement entered into by her with the Housing Board,

she has been designated as lessee/purchaser that if the sale was not completed, they would deduct the amount due to them, as rent and pay back

the balance and that as on date, the Housing Board is the owner of that house. In re-examination, he hasstated that till today the allotment was also

cancelled.

On the evidence tendered by R.W. 2, the Junior Assistant of the Housing Board, Ms. Sumathi, learned Counsel for the petitioner would submit

that this house belongs to the petitioner''s wife and so, the petitioner is not entitled to claim the petition mentioned house for his own use. This

submission cannot be accepted for the reason, that there is no evidence that all the instalments were paid and the petitioner''s wife had become the

owner of the house. Possibility of getting the house is there and at the same time, possibility of cancelling the allotment is also there. While so, it

cannot be stated that the petitioner''s wife is having a house of her own and in view of that, the petitioner cannot claim the petition mentioned house

for his own use.

Learned Counsel for the petitioner would submit that u/s 10(3)(a)(i) of the Rent Control Act, in case it is a residential building, if the landlord

requires it for his own occupation or for the occupation of any memeber 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, the landlord may apply to the Controller for an order, directing the tenant to

put the landlord in possession, of the building and that in the instant case, since the petitioner''s wife is owning a building, the petitioner is not eligible

to apply u/s 10(3)(a)(i) of the Rent Control Act. In the first place, on facts, it is not shown that the petitioner''s wife is owning any building of her

own. By no stretch of imagination, can it be contended that since the petitioner''s wife is paying instalments to the house, which was allotted to her

by the Housing Board and in which the petitioner and his family is residing, is allotted to her. The petitioner''s wife cannot be characterised as the

owner of the house. The risk of cancellation of the allotment always looms large.

In the second place, I shall not accept the submission, because the wife is owning a house, the husband is precluded from claiming the house for

his own occupation. To consider this aspect, Section 10(3)(a)(i) of the Act needs extraction:

A landlord may, subject to the provisions of Clause (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 a 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;

Learned Counsel for the petitioner relied on certain decisions to substantiate her case. In Indian Plywood Manufacturing Company Vs.

Balaramiah Chetty, , Chandurkar, C.J. had an occasion to consider a similar situation. In that case, the requirement was u/s 10(3)(a)(iii) of the

Rent Control Act which relates to the claim made for a non-residential building. Sections 10(3)(a)(i) and 10(3)(a)(ii) are similar. The contention put

forth was that the father of the petitioner was owning a premises and the sons were utilising the said premises belonging to the father and hence a

claim could not be made u/s 10(3)(a)(iii) of the Act and consequent eviction of the non-residential building in the occupation of the tenant. Learned

Judge has observed as follows:

Learned Counsel for the tenant has contended that when Section 10(3)(a)(iii) of the Act provided that a member of the family of the landlord

should not have a non-residential building of his own and if the landlord requires the non-residential building for the use of any member of his

family, then the words ""his own"" must be read as meaning in the present case, the building belonging to the father also. If the section is thus

construed, according to the learned Counsel, then since it is amply proved that the premises No. 2/30, Nainappa Maistry Street, Madras, was in

occupation of the partnership firm, the landlord was not entitled to claim the premises in question for the business of the partnership firm consisting

of the wife of the landlord and his sons.

Relying upon the decision of this Court in Annamalai and Company Vs. Sital Achi, , the learned Judge has further held as follows:

Now this decision has taken the considered view, on a construction of Section 10(3)(a)(iii) of the Act if a landlord is to be disentitled from claiming

non-residential premises on the ground that members of his family require the said premises for their own use, then this can be done only if the

members of the family are also inoccupation of a non-residential building of their own. Strictly speaking this decision would conclude the

controversy in the present case.

Holding so, the learned Judge has not accepted the contention put forth by the learned Counsel for the petitioner/tenant. The ratio of this ruling is

applicable to this case and hence, I am unable to accept the submission made by learned Counsel for the petitioner. Even assuming that the

petitioner''s wife is owning another building, for the requirement of the petitioner, he can always claim his own building u/s 10(3)(a)(i) of the Rent

Control Act.

Ms. Sumathi, learned Counsel for the petitioner would rely upon the decision in Bapjee v. Minor Parsonchand (1983) 1 M.L.J. 165, in which

Singaravelu, J. has observed as follows:

Under Section 10(3)(a)(i) the landlord is bound to prove that he is not occupying any building of his own or that of the members of his family in the

town or city as the case may be.

But in that case, this aspect, viz., whether the landlord can claim his building for his own occupation, even in a case when his family members are

owning some other house, is not focussed.

12 Learned Counsel for the petitioner would submit that learned appellate authority has stated that the petition mentioned premises would be

convenient for the petitioner, since his wife is a Doctor and for the purpose of practice, it will be more convenient for her to occupy that house and

that there is no pleading in the petition that the house is required for commanding a better practice for the petitioner''s wife and that the appellate

authority is wrong in stating it as a ground for coming to the conclusion that the petitioner''s requirement is bona fide.

In Hasmat Rai and Another Vs. Raghunath Prasad, , the Apex Court had held that before an allegation of fact to obtain the relief required is

permitted to be proved, the law of pleadings require that such facts have to be alleged and must be put in issue. In the case before me, so far a the

requirement of the petitioner is concerned, he has made it in very clear terms, which does not admit of any doubt, that he requires this premises for

his family''s own occupation and he does not own any other building of his own. That bona fide requirement has been proved by the evidence,

available in this case.

In A.N. Shanmuga Sundaram Mudaliar and four Ors. v. A.P. Mani 1992 T.L.N.J. 110, cited by the learned Counsel, there was neither a

pleading nor an evidence that the landlord or any member of his family for whose benefit premises was required, was not occupying for the

purpose of business, a non-residential building in the concerned town, which was his own. In the absence of the above, Venkataswami, J. had held

that the requirement was not satisfied. In the case before me, thereare pleadings with regard to the requirement of the petitioner and evidence is

also available to substantiate the same, and hence this ruling is not applicable to the facts of the present case.

In The Management of Antiseptic (Journal) 326, Thambu Chetty Street, Madras-1 Vs. A. Gangadharan and The Government of India, . The

Apex Court had held that in a suit for eviction on the ground of bona fide requirement of premises by the landlord, the subsequent events ought to

be taken into account for the purpose of finding out whether the landlord still require the premises in the possession of the tenant and that in

appropriate cases, the court must have regard to events, as they present themselves at the time, when it is hearing the proceeding before it and

mould the relief in the light of those events. The Apex Court had held that subsequent events have to be taken into account. Subsequent events in

this case which came to light during the trial of the case, do not entitle the petitioner, from claiming the petition mentioned premises and it does not

either detract the claim of the petitioner with regard to his bona fides.

Even de hors the reasoning inasmuch as the petitioner is not owning any building of his own and in as much as I am able to see bona fides, in

his requirement, since his requirement is substantiated by his evidence, it has to be accepted. Thus, even accepting the submission of learned

Counsel for the petitioner that subsequent events can be taken into account, still the petitioner''s claim cannot be rejected? I do not find any ground

to interfere with the finding of the appellate authority.

In the result, this revision does not deserve admission and accordingly, it is dismissed. No costs. The petitioner is given three months time from

today, for vacating the premises.