T.N. Narayanasamy vs N. Govindaraj

S.S. Subramani, J.—Tenant in R.C.O.P.14 of 1995 on the file of Rent Controller/III Additional District Munsif, Coimbatore is the revision

petitioner herein. Landlord claimed eviction on the ground that tenant has committed active waste in the property and also on the ground that the

building is required for own occupation of his son who has been married and who has no building of his own.

It is the case of landlord that tenant has constructed a water tank in front of the house and is also making use the front portion as bathroom and

consequently water gets stagnated and the same has affected the wall and floor of the building. This, according to landlord, is active waste which

has affected the utility and strength of the building permanently. It is also alleged by landlord that one of his sons got married in 1993 and he is not

having building of his own and he along with his wife is now residing in a rented building. He wants to occupy the scheduled building.

In the counter statement filed by tenant/revision petitioner, he denied both these allegations. According to him, contention of landlord that there

are eight members in his family and all of them are residing in the house is not correct. His son whose marriage has been conducted in 1993 is

occupying Government quarters and there is no necessity for him to occupy the scheduled building. He also contended that he has not committed

any active waste and strength of the building is not affected in any way. He also said that he cannot make use of front portion as bathroom and it is

too much to assume that female members will take bath openly. According to him, the allegation is only a pretext for eviction and the same has no

bona fides.

On the above pleadings, Rent Controller took oral and documentary evidence. Exs.A1 to A16 were marked on the side of landlord and PWs.1

to 4 were examined on the side of landlord. On the side of tenant, DWs.1 and 2 were examined and no documentary evidence was produced.

On the above evidence, Rent Controller held that landlord has proved both the grounds for eviction and an order of eviction was passed

granting two months time to surrender vacant possession.

Before further going into the merits of the case, it is seen that landlord filed an application for fixation of fair rent as R.C.O.P.198 of 1994. For

the said purpose a Commissioner was deputed to assess the value of the building. While assessing the market value, Commissioner seems to have

reported that in front portion of the scheduled building water gets stagnated since there is water tank in front of the house. It is also seem to have

reported that since the front portion is used as bathroom, the wall and the floor of the front portion of the building have become wet. Ex.A13 is the

Commissioner''s report in the case.

Both the Rent Controller as well as Appellate Authority relying on Ex.A.13 held that tenant has committed active waste in the property and he is

liable to be evicted.

Learned Counsel for revision petitioner submitted that the said finding of Rent Controller is based on no evidence and the Appellate Authority

also acted illegally in confirming the same.

After hearing counsel on both sides, I find that the said submission of learned counsel is only to be accepted. Ex.A13 is Commissioner''s report

filed in application for fixation of fair rent. Commissioner was also deputed to assess the cost of construction and the amenities provided in the

building. Therefore there is no necessity for Commissioner to assess the damages or how far the user of the building has affected the stability of the

building. The Commissioner has gone beyond the scope of his warrant and when he has no authority to assess the damage, it should not have been

relied on. In fact, learned counsel for petitioner submitted that he has filed serious objections to that report. Ex.A13 also do not show any damage

which has affected the utility or stability of the building for claiming eviction on the ground that tenant has committed active waste, landlord also will

have to prove that the acts of waste committed by tenant are likely to impair the value or utility of the building.

This question came up for consideration before the Honourable Supreme Court in the decision reported in 1998 AIR SCW 3802 = (1999) I

S.C.C. 133 (Rafat Ali v. Sugni Bai). In that case, their Lordships were considering similar provision under Andhra Pradesh Buildings (Lease, Rent

and Eviction) Control Act and in paragraphs 18 and 19, their Lordships have held thus,

The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its

proportion must be as delineated in clause (iii) of Section 10(2) of the Act:

Thai the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building.

All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the

building or its utility. The word ""likely"" in the above clause must be understood as a condition which is reasonably probable that such acts would

cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value

of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are

likely to impair the value or utility of the building ""materially"".

In Om Pal Vs. Anand Swarup (Dead) by Lrs., the Court, while considering a similarly worded clause in another Rent Control enactment, has

observed thus:

In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such

impairment must be of a material nature i.e., of a substantial and significant nature. When a construction is alleged to materially impair the value or

utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and

monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord.

It is clear therefrom that the damages which are only trivial and have not affected the value or utility is not a ground for eviction. Reliance on

Ex.A13 by Rent Controller as well as Appellate Authority to order eviction on the ground of act of waste is based on no evidence.

Commissioner''s report also do not say how far the value or utility of the building is affected materially. As I have stated earlier, Commissioner was

not deputed to assess the damages. If the report of Commissioner cannot be accepted, we have no other evidence in this case and the order of

eviction should not have been allowed on that ground.

The decision of authorities below is based on no evidence and also goes against the settled legal principles pronounced by Honourable

Supreme Court and by this Court. The said finding is not in accordance with law and this Court is entitled to interfere u/s 25 of the Rent Control

Act. I hold that landlord is not entitled to get eviction on the ground that tenant has committed act of waste.

But that by itself is not going to help tenant in any way since I have to confirm the order of eviction on the ground that landlord requires the

building on the ground of own occupation of building by his son.

Landlord''s son for whose requirement the building is sought is not in possession of any other building of his own. In view of the decision

reported in V. Radhakrishnan Vs. S.N. Loganatha Mudaliar, landlord''s son will be entitled to get eviction if the claim that his son requires the

building for own occupation found to be bona fide. In para 12 of the Judgment, their Lordships held thus,

On a plain reading of Section 10(3)(a)(iii) of the Act, it appears to us that the legislature intended that a landlord seeking eviction of the tenant

could be disentitled from claiming possession of the non-residential premises where he requires those premises for his own use. if he occupying a

non-residential building of his own. Similarly, the landlord would also be disentitled from claiming possession of non-residential premises for the

benefit of a member of his family, if that member of the family was in occupation of a non-residential building of his own. Any other interpretation of

this Section would not only be doing violence to the plain language of the section but would result in absurdity in as much as the benefit of the

provision would stand denied to the family members of the landlord, who do not occupy any premises of their own and for whose benefit eviction

is sought, if the landlord himself is in occupation of a non-residential premises of his own. The fact that the landlord, who seeks eviction for the

benefit of a member of his family, is himself occupying a building of his own, cannot operate as a bar to the landlord seeking eviction for the benefit

of a member of his family who does not occupy any premises of his own. Thus, it follows and we hold that the law laid down in Jagannatha

Chettiar case is not the correct law. The learned Single Judge in Chettiar case did not notice, let alone consider the three earlier judgments in Indian

Plywood; K. Chettiar and Annamalai and Co. In our opinion, the judgments in Kantian Case, Indian Plywood Manufacturing Co. case, K.

Chettiar case and Annamalai and Co. case lay down the correct law, which we hereby approve.

(Emphasis supplied)

It has come out in evidence that the building where landlord resides, there are eight members. It is true that tenant disputes the same. Finding of

the authorities below is that there are eight members in landlords family. It is spoken by one of the sons of landlord that his mother is an Asthuma

Patient and she requires landlord more open air. The congestion in their house will not permit some more members to occupy the building. It has

also come out in evidence that one of the daughters in the family who was married was divorced and she also returned to her parental house. One

more daughter is also residing with them. PW1 has said that lack of space in father''s house do not permit the married son to come and reside with

them. Evidence of landlord was believed by Rent Controller as well as Appellate Authority.

PW4 is the wife of newly married son. She has spoken that only because of lack of space they cannot reside with their in-laws and they want

the scheduled building if it is made available. She has also spoken that they have taken building on rent and every one have to pay Rs. 750/- per

month. Rent receipt is also produced to substantiate the same. According to her, scheduled building will be convenient to their occupation.

Learned counsel for petitioner submitted that the son for whose requirement building is sought, was not examined and that is fatal to the case.

That argument was rejected by authorities below rightly. Evidence of PW4 is more than sufficient to prove the bona fide requirement. She has

spoken about the requirement of her husband and family. She is a competent witness to speak on behalf of the family is not disputed. PW1, one of

the sons of landlord also spoken about the requirement.

The contention of tenant that the newly married son is occupying the Government quarters is specifically denied by PW4. It is the case of

tenant that the wife was given government quarters and not the son. That is also denied by her. When tenant was asked about it, he said that he did

not have any direct information whether PW4 is occupying the Government quarters or not, and he has only heard from others. PW4 has

convincingly proved that she is occupying the rented building and she is paying Rs. 750/- every months towards rent.

When the son and daughter-in-law expect the landlord to provide them with a shelter and landlord also feels that it is his duty to provide shelter

for his son. there is nothing to doubt about the bona fides. Landlord is not in a position to provide him with accommodation only because of lack of

space and when there are eight members already residing with him. When his wife is ailing and requires treatment as well as more space so that she

may get pollution free air, he can only plead helplessness to his son that he cannot accommodate him. In that helplessness if he feels that his son can

be provided with another building, that claim can only be said as bona fide.

Statute recognises that landlord can seek eviction for the requirement of members of his family. Merely because the members of family have

got their own income, that does not debate the members of family also in expecting landlord to provide them with accommodation. It is not

financial dependency that is considered. But dependency for the purpose of accommodation. That dependency will have to be viewed with

broader and humane angle. Technical arguments that without this accommodation, married son can live separately or that all the members of family

can adjust themselves in the very same building, cannot be countenanced. It is for landlord to decide in what way his children are to be provide

with and whether the present accommodation is convenient or not? In that discretion exercised by landlord, tenant has no say. The only

requirement is that the claim must be bona fide.

Under our Act, if the requirement is for the member''s own occupation that member should not have a building of his own. That also pre-

supposes that the dependency is in regard to accommodation and not financial dependency. In one of the earlier decisions of Kerala High Court,

reported in 1971 K.L.T. 119 (Anthony Kochuvariathu v. Chakkalinga Nadar), learned Judge held thus,

.... The argument that the sons are not dependent on the father as they have their own sources of income and are financially in a sound position to

maintain their family, I do not think is open to the revision petitioner. Dependency contemplated in sub-section (3) of S. 11 has to be viewed from

a broader and humane angle. What is contemplated in the sub-section is not mere financial dependency, as was held by the Punjab High Court in

Davar v. Kapur (ILR 1962-2 Punjab 484). The learned Chief Justice. observed:-

the word ''dependent'' cannot be construed as meaning nothing but wholly dependant in the sense of not earning anything at all and being entirely

dependent on the father for board, lodging and food. The term must be construed as meaning somebody not wholly independent or self-supporting

and in a position to set up a separate residence. Dependence may not in all circumstances be entirely a matter of finance.

The above decision was followed by Justice Balagangadharan Nair in the decision reported in 1977 K.L.T.795 (Muhammed v. Sinnamalu

Amma).

Justice Subramanian Poti (as he then was) has also considered this question in the decision reported in 1980 K.L.T.871 (Narayana Pillai v.

Ponnappan Achari), wherein its held thus,

Though in strict legal parlance dependence may mean looking up for support or maintenance, in the context in which that term appears in S. 11 of

the Kerala Buildings (Lease and Rent Control) Act is connotes a wider concept and covers a larger field. It takes in a person who is not financially

dependent upon the landlord but who would in the normal course look up to the landlord to provide him with the facility of a building possessed by

the landlord. Whether the landlord would do so or not to such a dependant would depend on various facts and circumstances including the

financial situation in which the landlord is placed, the degree of closeness or intimacy with the dependent who seeks the provision of such building

and other similar matters of relevance.

The same principle was applied in the decision reported in 1991 (2) ILR (Kerala Series) 415 [Kumaran v. Kunjunni Pillai Krishnan Kutty

Nair), wherein it is held thus,

Dependency is not merely a matter of physical or pecuniary need. Like many words, it conveys many nuances of varying hues. The same word

may mean different things in different contexts and is understood differently in different ages. In the words of Justice Oliver Mendell Holmes, a

word is not a crystal transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the

circumstances and time in which it is used. It will be myopic to cabin, confine and crib the meaning of the word. Many words for that matter, are

indefinable and a situation of computerised precision is not always available. Dependency could be economic, emotional or otherwise. One may be

dependent even on intangible elements. One may depend on his faith in a crisis. A physically handicapped person or a blind person could be

''dependent'' on another, to run his trade, for purposes of Section 11(3). A Kaleidoscopic variety of facts situations could exist. I see no

justification to read the word down to mean economic dependence.

From the above decisions it is clear that the landlord is entitled to consider the requirement of his family members and claim eviction. Even if

the sons and daughters in taw are not economically dependant and they do not depend on landlord for their maintenance that is not the matter to

be considered in regard to eviction of a residential or non-residential building when the requirement is for member''s of family. The only

disqualification so far as members are concerned that the members should not have a building of his own. When the members of family expect that

landlord will provide for them and landlord also feels that it is his duty to make his members of family happy and to have a peaceful family life, the

said requirement can only be termed as bona fide.

The concurrent findings of authorities below that the claim of landlord is bona fide is only to be confirmed in view of the above said decisions.

It is not the case of tenant that authorities below have not considered material evidence placed before it or the authorities below have taken

into consideration irrelevant or inadmissible evidence. The jurisdiction u/s 25 of the Rent Control Act is only supervisory in nature. In the decision

in Rafat Ali v. Sugni Bai (cited supra), the scope of revisional jurisdiction is considered. In para 7 of the Judgment, their Lordships have held thus,

The application given to the Section makes it unmistakably clear that the power conferred thereunder is revisional which means, it is a power of

supervision. It is well neigh settled that a revisional jurisdiction cannot be equated with appeal powers in all its parameters. The power to call for

and examine the records is for the purpose of the High Court to satisfy itself as to the ""legality, regularity or propriety"" of the order of the lower

authority. Even such a widely worded frame of the Section may at best indicate that the revisional powers are not so restricted as in the enactments

wherein the words are not so widely framed. Nonetheless, they remain in the realm of supervisory jurisdiction. In a recent decision, we had

occasion to consider the scope of revisional jurisdiction under certain Rent Control enactments vide Sarla Ahuja v. United India Insurance

Company Limited. 1998 (7) JT (SC) 297: (1998) AIR SCW 3451). Reference was then made to a decision wherein similar words used u/s 25 of

the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 were considered (vide Sri. Raja Lakshmi Dyeing Works and Others Vs.

Rangaswamy Chettiar, . A two Judge Bench has observed therein that ""despite wide language employed in the Section, the High Court quite

obviously should not interfere with the findings of fact merely because it does not agree with to the finding of the subordinate authority."" After

adverting to it, we have stated in Sarla Ahuja:

The High Court, in the present case, has reassessed and re-appreciated the evidence afresh to reach the different finding as though it was

exercising appellate jurisdiction. No doubt, even while exercising revisional jurisdiction, a re-appraisal of evidence can be made, but that should be

for the limited purpose to ascertain whether the conclusion arrived at by the fact finding Court is wholly unreasonable.

(emphasis supplied)

Finding of the authorities below that landlord requires building to provide accommodation to his son is, therefore, confirmed.

In the result, the order of eviction passed by authorities below are confirmed, I hold that landlord is entitled to get eviction on the ground that

the claim for bona fide own occupation is genuine. Landlord is not entitled to gel possession on the ground that tenant has committed active waste

in the property.

With the above modification the revision petition is dismissed. No costs. Consequently, C.M.P. No. 21846 of 1999 is also dismissed. At the

fag end of the argument, learned counsel for tenant submitted that sufficient time may be given to surrender vacant possession. Counsel for tenant

wanted a year time to surrender vacant possession. I do not find any justification to grant such a long time. From 1993 onwards, the litigation is

pending. It is nearly 7 years since landlord seeking possession and that too for his own occupation. Taking into consideration the facts and

circumstances, I grant 45 days time from today to tenant for surrendering vacant possession on tenant filing an undertaking before this Court within

ten days from today, undertaking that he will surrender vacant possession within a period granted and that he will handover possession on or

before the period expires. Rent arrears, if any, also will have to be paid within ten days from today. If undertaking is not filed incorporating the

above terms, landlord is entitled to get possession as if no time is granted.