Smt. Mahadevi vs Goutham Chand Jain

M.N. Chandurkar, C.J.—This is a revision petition by the landlady challenging the orders of the Rent Controller and the Appellate Authority

rejecting her claim for eviction of the respondent who is a tenant of the premises in question at Rs. 80 per month.

The premises in question are shop premises. The landlady became the owner of the shop in question as a result of a settlement made by her

mother with effect from 10.1.1977. She filed a petition for eviction expressly stating that her husband was having a hair dressing saloon in a rented

shop for which he was paying a rent of Rs. 175 per month, and she required the premises for the purpose of setting up of her husband''s business

in her own place and, therefore, for her own use and occupation. According to her, she did not possess any other building of her own within the

City of Madras. By way of abundant caution, she also pleaded in her petition that she was residing in a hut in the same premises which bore the

same Corporation door number, and, therefore, she was also making a claim by way of additional accommodation to avoid any technical pleas

that may be raised by the respondent.

The tenant denied that the landlady required the shop premises for business of her husband. According to him, he had entered into a. fresh

agreement of lease with the landlady under which the shop was let out for a period of five years and a sum of Rs. 1,000 was paid by him to the

landlady by way of advance rent which was to be adjusted at the rate of Rs. 30 per month for a period of 33 months. Thus, the actual rent payable

every month would be Rs. 30 per month. He also pleaded that he had a right of renewal of the lease and under the renewed lease a sum of Rs.

1,000 was payable by him and the monthly rent was to be Rs. 90. During the period of the renewed lease, the amount of Rs. 1,000 was to be

adjusted at the rate of Rs. 40 per month and the tenant was to pay rent at the rate of Rs. 50 per month. The substantial case of the tenant was that

the petition itself was premature, and, in any case, it was only a device to oust the tenant, so that the premises could be let out at a higher rent.

Admittedly, the respondent was carrying on business as Pawnbroker and according to him, his monthly business turnover was Rs. 75,000.

The only two witnesses examined at the trial of the petition were the husband of the landlady and the tenant. The Rent Controller found that the

document of lease, Ex. A7 was an unregistered document and the tenant could not, therefore, contend that a lease for five years was granted to

him. He also found that it was open to the landlady to ask for eviction of the tenant for the purpose of the business of her husband provided of

course that her claim was bona fide. On the question of bona fides, the Rent Controller, however, took the view that the petition filed by the

landlady did not mention the fact that the rent of the premises in the occupation of her husband was enhanced from Rs. 65 to Rs. 175 per month

and that the landlady had not come to court with clean hands. This conclusion he reached, because, in Ex. P5 which was a notice given on behalf

of the landlady, it was only stated that the landlady required the shop portion for her own use and occupation but that it was not stated for whose

occupation, the demised portion was required. He also referred to the fact that the husband had totally denied the execution of the lease agreement

in favour of the tenant and that the husband was unwilling to answer questions as to the correspondence - (Exs. R2 to R6) which took place

between the landlady and the tenant. Relying on these facts, the Rent Controller took the view that P.W. 1 was purposely suppressing certain

material facts in order to succeed in the petition. Thus he held that the claim of the landlady was not bona fide. With regard to the case u/s 10(3)(c)

of the Act, he held that the landlady did not seek any relief under that provision. Accordingly, he dismissed the petition.

In the appeal filed by the landlady, the Appellate Authority took the view that Ex. A2 series consisted of two receipts, one for Rs. 65 and the

other for Rs. 110 of the same date and they were of a suspicious character because they were in respect of the same premises occupied by the

husband of the landlady while Ex. P1 was a receipt for Rs. 65. He rejected the argument on behalf of the landlady that the rent of the shop was

enhanced to Rs. 175 per month, and he declined to accept this case on the ground that the husband of the petitioner had not taken any action to

protest against this increase of rent. Accordingly, he did not accept the argument that because the husband had to pay higher rent, she was

required to ask for possession of the premises in the occupation of the tenant. The Appellate Authority then found fault with the landlady for not

having entered the witness box because according to the Appellate Authority, it was necessary for her to enter the witness box in order to enable

the respondent to cross-examine her ''for the purpose of establishing the truthfulness of the allegations made by the respondent in the counter

statement. Thus her absence from the witness box was styled as deliberate and designed ''so as to avoid being caught up in an embarrassing

situation''. He also found fault with her for not having mentioned in the petition that rent at Rs. 175 per month was being paid by her husband. The

Appellate Authority also relied on Ex. R5 which was referred by the Rent Controller and observed that the landlady had not mentioned in that

notice as to for whose business the premises were required. The Appellate Authority further observed that even if we assume that she required it

herself, the failure to mention the purpose for which she required it cannot go unnoticed or unquestioned. The circumstances that P.W. 1 had stated

that he had no knowledge about Exs. R2 to R6, was also used against the landlady and the Appellate Authority took the view that it was not quite

safe or prudent to act upon the case pleaded by the landlady and spoken to by her husband. It also held that the claim made was merely a ruse,

and a device to evict the tenant from it by reason of his refusal to pay enhanced rent demanded by the landlady. Accordingly, the appeal was

dismissed.

In this revision filed by the landlady, it is contended that both the Rent Control Authorities have taken into account factors extraneous to the

question of bona fide requirement or the need of the husband of the landlady and therefore the findings recorded by the Rent Control Authorities

must be set aside. It is pointed out that the husband of the landlady is carrying on business in rented premises and that in the absence of anything to

show that the husband did not in fact want to shift to the premises owned by the wife his statement that he needed the premises in question for his

own business was sufficient to establish bona fides. It is also contended that the amount of rent, whether it was Rs. 65 or Rs. 175, paid for the

premises which is now in the occupation of the husband of the land lord was wholly irrelevant in so far as the requirement of the husband was

concerned.

On behalf of the tenant, it is vehemently contended that both the Rent Control authorities have recorded a concurrent finding against the landlady

on the question of bona fides and this finding should not be interfered with. On merits, it is contended that the claim in question is not bona fide,

because, twice on previous occasions, a similar claim was made and notices were served on the tenant but no proceedings had been taken. In

support of the contention that the concurrent finding on the question of bond fides should not be interfered with in revisional jurisdiction, the learned

Counsel for the tenant has merely quoted the following decisions - Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, ; R.

Narasimhachari Vs. Kanakasabapathi, ; P. Thanneermalai Chettiar Vs. S.J. Dhanraj, . He however, did not think it worthwhile to quote any

particular passages from the decisions. He obviously considered it enough to read out citations from his notes. This, to say the least, is a highly

undesirable practice. The effect is that the Court is left with the task of finding which paragraph from the decisions to which merely a reference is

made, is relevant for the case. If a lawyer wants to refer to any decisions in Court, it is necessary that he has those reports with him at the time of

arguments.

In the case of Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , the Supreme Court has observed that concurrent

finding based on evidence that the landlord did not bona fide require the premises for his own use and occupation is not a finding which can be

touched by the High Court exercising jurisdiction u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and that in such a case,

merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. In the case of P.

Thanneermalai Chettiar Vs. S.J. Dhanraj, , K.M. Natarajan, J., has held, on the facts of that case, that the concurrent findings of the authorities

below do not suffer from any manifest illegality or irregularity so as to warrant an interference in revision. In R. Narasimhachari Vs.

Kanakasabapathi, , Venkatadri, J., held that where the Courts below have found as a fact that the landlord does not require the building for his

own use, the High Court in revision cannot interfere with the same.

There cannot be any dispute that where a finding of fact is based on evidence recorded in the course of rent control proceedings, the High

Court will not be entitled to interfere with that finding in the exercise of its revisional jurisdiction. However, it is also well established that where a

finding is based on extraneous factors and it is the result of an erroneous approach not permissible under the statute, such a finding will not be

binding on the High Court. In the instant case, admittedly the premises in question are needed for a shop which was run by the husband of the

landlady. The proper person, who would therefore be in a position to depose to the requirement, would be the husband himself. It is well-known n

that normally where evidence of the husband could be sufficient to establish certain facts, it would not be necessary for the wife to enter the witness

box unless of course there are certain facts which have to be established on her own evidence-In a case where the wife''s property in the

occupation of a tenant is sought possession of on the ground that it is necessary for the business of the husband, the requirement could be

sufficiently proved by the evidence of the husband himself. One of the circumstances which has weighed with the Appellate Authority while

rejecting the claim of the landlady is that the landlady herself has not been examined. According to the Appellate Authority, it was necessary for the

landlady to examine herself in order to enable the tenant to cross-examine her for the purpose of establishing the truthfulness of the allegations

made by the tenant in the counter statement. Now, firstly it is difficult to see how the landlady can be blamed for not examining herself. Even

according to the Appellate Authority, the examination of the landlady was necessary for the purpose of establishing the truthfulness of the case of

the tenant. It is true that if a party examines itself a� a witness, the opposite party can have his case proved by cross-examining the party. But

that is not the same thing as saying that a party is bound to examine itself for establishing the case of the opponent. It is for a party to decide

whether he will examine himself as a witness. If he does not, then in a given case, adverse inference with regard to certain facts can be drawn. But,

at the same time, it is permissible for a party to prove his case by examining other witnesses.

In the statement in reply to the petition, the substantial case, as already pointed out, is that the tenant had paid an advance of Rs. 1,000 and

unless that amount was adjusted fully, the landlady was not entitled to apply for eviction. The tenant has undoubtedly filed a document and,

assuming that the averment in that document styled as ''agreement of lease'' that a sum of Rs. 1,000 was paid by the tenant, is true, the question as

to whether a petition for eviction would lie before that amount was adjusted, was a pure question of law. It is obvious that the mere fact that a sum

of Rs. 1,000 was paid by the tenant to the landlady as advance would not deprive the landlady of the right given to her under the statute.

So far as that fact is concerned, the only effect of the petitioner not examining herself would be that it could be held that Rs. 1,000 was paid by

the tenant to the landlady. That however, does not prevent the landlady from making a petition for eviction before the said amount is adjusted. It is

also well known that proceedings under the Rent Control Act take a long time. That amount of Rs. 1,000 was to be wiped out within a period of

33 months. By the time the application was filed for eviction, 25 or 26 months had already gone and we cannot lose sight of the fact that today it is

almost six years that the application has been pending. There was therefore no question of prejudice caused to the tenant by filing the petition for

eviction or any adverse inference being drawn against the landlady.

The cutting off of electricity in 1980 has also nothing to do with the question of bona fides of the need of the husband of the landlady.

The further ground taken in the written statement is that the landlady had been demanding frequently increase in the rent notwithstanding the

fact that there is an agreement for five years. Admittedly, that lease is not a registered document. But the main grievance appears to be that there

has been a consistent demand for increase of rent. With regard to the alleged demand for increase of rent the only statement which appears in the

examination-in-chief of the tenant is that originally the rent was Rs. 70 and it was increased to Rs. 80. Firstly, the averment that enhanced rent was

being demanded several times is an extremely vague averment without any details and in the examination-in-chief, beyond this increase of rent of

Rs. 70 no further reference to any demand for increase of rent is made. Then, there is a vague statement at the end of the examination that the

petitioner demanded enhanced rent before the filing of the petition and though the tenant was willing to increase it to some extent, the landlady did

not agree and he refused to pay enhanced rent the petition has been filed. It is different to see how any case of demand for enhanced rent can be

sought to be established by such vague and general statement. It is therefore impossible to agree with the Rent Control authorities that in order to

prove this averment of demand for enhanced rent it was necessary for the landlady to offer herself for examination. As a matter of fact, in Ex. P5

which is a reply to the landlady''s notice terminating the tenancy, also there were no details as to when and how much enhanced rent was

demanded.

It is not in dispute that the husband of the landlady has been running his business in rental premises. Whether the rent for those premises was

Rs. 65 or Rs. 175 is by itself not very relevant. The trend of cross-examination of the husband shows that even according to the tenant, it was the

husband who had demanded the enhanced rent Rs. 175. If this is the case of the tenant himself, that it was the husband who demanded enhanced

rent, it is difficult to see how the tenant can now make a grievance that the landlady should have been examined. The husband has denied that he

had demanded any enhanced rent. The alleged demand for enhanced rent of Rs. 175 is not stated either in the reply notice Ex. R5 or in the written

statement itself. Once we reject the case of the tenant that the petition for eviction is the result of the refusal of the tenant to pay enhanced rent, then

the only defence which was put forth by the tenant ceases to be of any force.

Some argument was advanced that some shops had fallen vacant and that the husband did not occupy those shops. The only question which

was put to the husband was that a shop which had fallen vacant was let out to a tailor six months back, which was denied. It has however been

stated in re-examination that the said shop which was occupied for the last four years, was only 4'' x 12'' and the husband could not therefore do

any business in that shop. There is however not a whisper in the evidence of the tenant that any shop which had fallen vacant would have been

sufficient for the business of the husband.

The learned Counsel appearing on behalf of the tenant has referred to the decision of the Supreme Court in M.M. Quasim Vs. Manohar Lal

Sharma and others, , that the landlord does not have unfettered right to re-enter the premises of his choice and that he must prove that the available

vacant premises were not suitable for his purpose. In that case, the Supreme Court was dealing with a case of personal requirement and the

following observations in paragraph 18 may be profitably quoted-

When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently

occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose

the premises is to negative the very raison d''etre of the Rent Act. Undoubtedly if it is shown by the tenant that the landlord has some other vacant

premises in his possession, that by itself may not be sufficient to negative the landlord''s claim but in such a situation the Court would expect the

landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the

premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say

that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant

premises in possession which he would not occupy and try to seek to remove the tenant.

It has to be pointed out that even the observations of the Supreme Court emphasise the fact that the premises which are vacant must be convenient

premises and it is obvious that if there are certain premises which are vacant but which are inconvenient for occupation-this inconvenience has to

be established by the landlord-the petition filed by the landlord cannot be rejected on the mere ground that there are some vacant premises. In the

instant case, firstly, it cannot be said that there were any vacant premises belonging to the landlady, and, in any case, the statement in the re-

examination of the husband that the tailoring shop was only 4'' x 12'' would be enough to reject the contention that there were other premises

available to the landlady.

Similarly, the fact that twice earlier the premises were asked for is also not relevant. It is true that by two notices, one dated 24.1.1978 (Ex.

R5) and the other dated 18.4.1980 (Ex. R4) the landlady called upon the tenant to vacate the premises. The last notice dated 6i6.1980 (Ex. P6) is

in fact a reiteration of the notice dated 18.4.1980 Ex. P4, and is in fact a reply to the reply which the tenant sent in 6.6.1980 (Ex. P6) to the earlier

notice dated 30.4.1980 sent on behalf of the landlady. Thus, the present proceedings are substantially in pursuance of the notice dated 18.4.1980.

Now, merely because no proceedings were taken after the notice dated 18.4.1980 the bona fides of the landlady do not automatically become

doubtful. If the bona fides of the need of the husband of the landlady are proved, the petition by the landlady cannot be dismissed only because she

has not proceeded against the tenant earlier.

The orders of the Rent Control Authorities clearly indicate that the rejection of the claim of the landlady for the eviction of the tenant from the

premises for the benefit of her husband has been based on wholly irrelevant and extraneous consideration. Such a finding cannot be binding on the

High Court and It is clearly liable to be interfered with by this Court in the exercise of revisional jurisdiction.

Accordingly, the orders of both the Courts below rejecting the claim of the landlady are set aside and the petition filed by the landlady is

allowed. No order as to costs.