T.M.A. Abdul Aziz vs Venkatachalam Pillai

Basheer Ahmed Sayeed, J.—The tenant is the petitioner in this civil revision petition. He is seeking to revise the order of the learned District

Judge which has held that the wooden bunk which the respondent is using for the purpose of his business is not a ""building"" or ""hut"" within the

meaning of the definition of ""building"" given in the Madras Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). In that Act,

Section 2 (1) defines a building as ""any building or hut or part of a building or hut let or to be let'' separately for residential or non-residential

purposes"" and includes various other items referred to in sub-clauses (a) and (b) of Section 2(1).

The petitioner is in occupation as tenant under the respondent of a small building measuring about 14'' by 31/2'' and is paying a rent of Rs. 6-8-0

per mensem. The respondent, on the other hand, is in possession of a bunk constructed completely of timber measuring about 5'' by 41/2''. This

bunk is placed upon cement blocks on the site belonging to Kumbe-swaraswami temple in Kumbakonam. The respondent sought to evict the

petitioner on the ground that he had no place for carrying on his business. In the petition filed by him, he admitted that he was in occupation of a

building by which he meant a wooden structure which he had constructed on the temple site and which structure happens to be removed every

time, when the deity is taken in procession for 10 days in the year.

The Rent Controller, on the admission of the respondent, dismissed the petition. Thereupon an appeal, was preferred against that order by the

respondent before the learned Subordinate Judge and the learned Subordinate Judge confirmed that order. After sometime, the respondent again

took out another application before the Rent Controller. The Rent Controller held that in'' view of the previous application and the orders thereon

the second application was not tenable.

On appeal, the learned Subordinate Judge reversed the order of the Rent Controller and remanded the petition for enquiry and investigation. On

remand, the Rent Controller held that the superstructure was a building and that the respondent was not entitled to an order for eviction. On

appeal, the learned Subordinate Judge held that the superstructure which the respondent was possessed of was not a building. A further appeal

was preferred before the learned District Judge who concurred with the learned Subordinate Judge. This revision is now preferred against the

decision of the learned District Judge.

The contention raised by the learned counsel for the petitioner is that except on new facts there can be no second application by the landlord for

evicting the tenant when once he took out an application on the plea that the building was required for his own use and when he got an adverse

order which was confirmed on appeal. The learned counsel for the petitioner relies upon the decision of a Bench of this Court in -- ''Raghavalu

Chetti v. Ramamurthi'', 1951 Mad LJ (SN) 46 (A) where it has been held that Section 10 of the Act would not be a bar to a new application if

there are new materials on which the application could be made. In this case the learned counsel''s point is that no new materials have been placed

before the court for entertaining a fresh application for the simple reason that even in the very first application taken out by the landlord he had

stated that what he was in possession of was a building and that has not ceased to be a building and therefore no new circumstances or new

materials had been available in order to justify a fresh application being filed.

The correctness of this contention would depend upon the fact as to whether the superstructure which is in the possession of the landlord is really a

building and comes within the scope of the definition of the word ""building""'' given in Section 2 of the Act or whether it is not a building. If the

superstructure of the description given above which the landlord respondent is in occupation and where he is carrying on his business were to be

taken as a building then certainly a second application would not lie. If it is not a building or even a hut, then certainly the application of the

respondent would lie. Then the whole question will turn upon the point as to whether the structure which the respondent is occupying and where he

is carrying on his business is a building within the meaning of Section 2 of the Act, or not.

The definition given in Section 2 of the Act includes not merely any building or hut or part of a building or hut but it also goes on further to say

that such a building or part of a building or hut should be one capable of being let separately for residential or non-residential purposes. So far as

the structure in question is concerned, it cannot be disputed that the superstructure which is in the possession of the respondent is one that can be

let out on rent to any person who may carry on business similar to the one that respondent is carrying on. That being the case, the question that

arises next is whether the superstructure of the kind in question is a building within the meaning of the definition contained in Section 2 of the Act.

The learned counsel for the petitioner after inviting my attention to several decisions wherein wooden structures have been held to be buildings,

has urged that even if this superstructure could not be considered as a building within the ordinary meaning of the term, still it will come perfectly

within the scope of the definition of hut. The definition of hut is given in Webster''s dictionary as ""temporary wooden structure"". There is no

limitation as to the length, breadth or height of any such wooden structure which can be called a hut, so that, when Section 2 of the Act includes

also a hut, this building even if it is to be considered a hut will fall within the scope of that section. Even though there may be considerable difficulty

in arriving at the conclusion that the superstructure in question which is of small size measuring about 5'' by 41/2 can be called a building,

nevertheless, in my view, this superstructure which the respondent has in his occupation and where lie is carrying on business and wnich he has

constructed on the site belonging to he temple authorities is certainly a hut. Therefore, when he is in occupation of a hut of his own he cannot

certainly seek to evict the tenant who is in occupation of another building belonging to him and has been paying rent regularly.

Even though it may not be necessary to go further into the question as to whether the superstructure in question could be brought within the

scope of the definition of building in view of what I have stated above still since the learned counsel for the petitioner has urged that it could be

taken as a building and has referred me to a number of authorities, I would like to refer to them and examine the position.

The first of the series of authorities referred to by the learned Counsel for the petitioner is -- ''Stevens v. Gourley'', (I860) 1 LT 33 (B). In that

case, a wooden superstructure which was 16'' by 13.8'' was held to bo a building. In -- ''Nandumal v. Municipal Committee, Simla'', AIR 1925

Lah 252 (C) a wooden structure on wheels which was 10 by 8'' was again held to be a building. In --''Hanrahan v. Leigh on Sea Urban Council'',

(1909) 2 KB 257 (D) an old railway carriage which stood upon a plot of land and was converted into a dwelling house was held to have become

a new building within the meaning of Section 159 of the Public Health Act, 1875 (of England) and that since it did not comply with the

requirements of the bye-laws for the purpose of erection, the urban council had power to pull down the whole building and not merely to remove

and alter the work by which it was so converted. To similar effect is the decision in -- ''Richardson v. Brown'', (1885) 49 JP 661 (E) reported in

''Mews Digest Vol. 9, page 392. It appears from a consideration of ail these decisions referred to by the learned counsel that even though a

superstructure may be one of wooden substance and Wen though, it may not be fixed to the ground and even if it is not of an everlasting character

like masonry or stone building, it has been held to be a building for the purpose of municipal laws. In this case it should be remembered that the

definition of the word building is intended for the purpose of affording it relief to tenants and it is the purpose of the Act to relieve congestion and

the unnecessary hardship that is caused by landlords evicting the tenants without any just case. When the relationship of the landlord and tenant is

kept in view in regard to the hut, then the definition given in Section 2 of the Act with regard to the hut assumes considerable significance and

importance.

It cannot therefore be argued with any force that huts of the kind involved in this petition have been sought to be excluded from the scope of the

Act. It that were a proper construction of the scope of the Act, then it would amount to saying that as between the poor landlords and poor

tenants, the Act provides no remedy. That will be defeating the very purpose of the Act.

The learned counsel for the respondent however has urged that the question as to whether any superstructure, be it of wood or of any other

material, is a building, is a question of fact and when two courts have held that the superstructure now involved in this petition is not a building, this

court ought not to interfere with the findings of the courts below as there is no question of law involved for decision. It is difficult for me to agree

with this contention of the learned counsel for the respondent. The whole case turns upon not merely on the applicability of Section 10 of the Act

which has been raised by the learned counsel for the petitioner, but also on the question as to whether a superstructure of the kind described in this

petition is or is not a building. It involves the construction of the definition of the words ""building"" and ""hut"" given in Section 2 of the Act, so that it

cannot be argued that this is purely a question bf fact involving no question of law. In so far as the definition has to be interpreted, I think there is

justification for this court to interfere in revision in this petition.

The next point urged by the learned counsel for the respondent is that Section 12(4) 01 the Act does not give room for revision when already

the matter has been decided by two courts, possessing appellate authority. I do not think that I can agree with the learned counsel for the

respondent on this question. In so far as the District Judge is concerned, he is subordinate to the High Court and any decision of his is subject to

revision by this court. I think there is scope for the decision of the learned District Judge being interfered with in revision.

The further point taken by the learned counsel for the respondent is that in the case cited by the learned counsel for the petitioner the size of the

wooden structures which formed the subject-matter of those decisions was considerable and that the superstructure involved in this petition being

of very small size it ought not to be brought within the scope of the definition given in Section 2 of the Act. I do not think this argument can be

accepted. Even though the wooden structure in question in this petition is about 5'' by 41/2 nevertheless it serves a good purpose.'' It enables the

respondent to carry on his business and the photographs which have been produced in this peti-tion would convince any observer that the

superstructure is a reasonably well proportioned hut where business is being carried, on and can be carried on by any person if it is let on rent.

No doubt, some of the decisions, particularly the one reported in -- ''(1860) 1 LT 33 (B)'', have stated that any superstructure of considerable size

and which would last for a considerable time should be construed as a building but what that considerable size and what that considerable time for

which such superstructure should last in order to be considered a building within the scope of the section, of the Acts which the courts were called

upon to construe, has not been defined anywhere. In the absence of such a definition, the contention of the learned counsel that since it is stated

that they should be of considerable size and that they should last for a considerable time, this wooden superstructure involved in the suit cannot be

a building or hut has not much force. I do not think that it will be right to say that the superstructure of the kind in question cannot be brought within

the scope of the definition of a hut. On the other hand, this superstructure could last as long as any other building for the matter of that; though it

may be of timber, it cannot be said that timber lasts for lesser time than buildings of any other material.

The learned counsel has invited my attention to the decision in -- AIR 1949 143 (Privy Council) and has contended that in so far as the

question now raised in this petition was not raised or was not in issue at an earlier stage, there may be no res judicata. I do not think we are now

considering the question of res judicata as such. The learned counsel for the petitioner has only relied upon Section 10 of the Act and I think the

principles of this section are not exactly the same as those that are contained in Section 11, C. P. C. The ruling and the observations of that case

do not apply to the facts of this case. The learned counsel for the respondent has also relied upon the decision in -- ''Moir v. Williams'', (1892) 1

Q B 264 (G). The observations and the ruling in that case also, in my view, do not apply to the facts of the present case. Even so, the decision in -

- ''Mohabir Das v. Gaya Municipality'', AIR 1915 Cal 806 (1) (H), does not render any assistance to the learned counsel for the respondent, for in

that decision a masonry wall which had the effect of extending certain building was held to be re-erection of the building. I do not think that in view

of the objects of the Act and the definition given in Section 2 of the word ""building"" which includes a hut and in view of my finding that the

superstructure involved in this petition comes well within the definition of a hut, in the light of the decisions that have been referred to, I think that

the decision of the learned District Judge has to be set aside. This petition is therefore allowed and the petitioner will have his costs in this court.