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SHANMUGA SUNDARAM versus A.S.KAMALAM

High Court of Madras

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Shanmuga Sundaram v. A.S.Kamalam - CIVIL REVISION PETITION No.1342 OF 2002 [2003] RD-TN 1116 (19 December 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 19/12/2003

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CIVIL REVISION PETITION No.1342 OF 2002

Shanmuga Sundaram ... Petitioner -Vs-

A.S.Kamalam ... Respondent Civil Revision Petition filed under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 for the relief as stated therein. For Petitioner : Mr.Karunakaran for

M/s.G.Mani Associates

For Respondent : Mr.T.R.Rajaraman for

Mr.Syed Mustafa

:O R D E R



This Civil Revision Petition has been filed against the judgment and decree dated 8.7.2002 rendered in R.C.A.No.46 of 1999 by the Rent Control Appellate Authority and the III Additional District Judge, Pondicherry thereby confirming the fair and decretal order dated 12.8.1 999 made in H.R.C.O.P.No.74 of 1998 by the Rent Controller, Pondicherry.

2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that the landlady/respondent herein has filed a petition for eviction on the ground of personal occupation for her business purposes stating that the tenant/petitioner herein came into possession in the year 1979 for non-residential purpose on a monthly rent of Rs.300/= and the same having come to be raised, at the time of filing the petition, it was Rs.75 0/= p.m.; that the landlady was in possession of another building on rental basis and was carrying on business; that she was asked to vacate the said premises by her landlord; that she wanted her own building for doing her business; that there were civil litigations between the parties in O.S.No.628 of 1997; that since the tenant did not vacate the premises, she has filed the present petition for eviction of the tenant on the ground of personal occupation.

3. The tenant contested the petition alleging that the tenancy period was renewed for a later period up to 1999 and as such, the petition for eviction is pre-mature; that the landlady's husband has been carrying on business and she is only a house-wife and therefore, her claim for eviction of the tenant for the purpose of her own business is not bonafide; that the landlady and her husband are permanently residing at Madras and doing business under the name and style of 'Hotel Nayagara Private Limited' at Kodambakkam; that the tenant has also obtained permanent injunction in O.S.No.628 of 1997 to safeguard his possession and therefore, this petition is not maintainable and the same is liable to be dismissed.

4. The Rent controller, after analysing the materials placed on record and upon hearing both sides, allowed the petition and ordered eviction of the tenant. Aggrieved by the same, the tenant has preferred R.C.A.No.46 of 1999 and the learned Rent Control Appellate Authority also concurring with the Rent Controller, has dismissed the Appeal against which, the above civil revision has been filed on certain grounds as brought forth in the grounds of revision.

5. During arguments, the learned counsel for both, besides reiterating what has already been traced factually, would also cite each one judgment in their favour. The learned counsel for the petitioner would cite the judgment of the Honourable Apex Court delivered in S.J. EBENEZER vs. VELAYUDHAN AND OTHERS reported in (1998) II MLJ (SC) 50 wherein it has been held:

"While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business."

6. On the contrary, the learned counsel for the respondent would cite the judgment delivered by a learned single Judge of this Court in K.PANCHAVARNAMMAL (DIED) AND OTHERS vs. E.SARASWATHIAMMAL AND THREE OTHERS reported in 1996-II-CTC 98 wherein, when a tenant made use of the premises for the purpose different from the one for which it was let out and the landlord accepted the rent from the tenant without protest, the learned Judge has held that 'after knowing that the building is used for different purpose, acquiescence on the part of landlord cannot be presumed by acceptance of rent but a written consent is necessary and such consent cannot be inferred by conduct or silence on the part of the landlord and mere acceptance of rent will not amount to consent for different purpose'. The learned Judge has further held that 'the Court can take into consideration subsequent events and tenant is guilty of making use of building for purpose different from the one for which it was let out and hence liable to be evicted.'

7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what is given to understand is that the landlady/respondent herein has initiated the HRCOP for eviction of the tenant/petitioner herein under Section 10(3)(a)(iii) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 requiring the premises for her personal occupation. The premises is a commercial building regarding which the petitioner/tenant has entered into an agreement for leasing of the same for the purpose of running a hotel, initially for a monthly rent of Rs.300/=, which, after enhancement, is now Rs.750/= and that the petitioner/tenant is in occupation of the building till date. These are the facts accepted by both parties regarding which there is no controversy and there is no allegation from the side of the landlady regarding any default committed on the part of the tenant in the payment of the monthly rent. The only ground under which the landlady requires the premises is for her personal occupation as aforeseen with which the eviction petition filed by the petitioner under Section 10(3)(a)( iii) had to be decided by the Rent Controller.

8. A careful perusal of the materials placed on record would reveal that an enquiry has been held on the part of the Rent Controller framing the sole point for determination of the petition 'whether the petitioner is entitled to get the respondent evicted from the premises' and evidence of parties was recorded besides permitting them to mark their documents, during which on the part of the landlady, her husband, one Srinivasan, has been examined as P.W.1 besides examining yet another witness Rajakulaselvam, the Sub Inspector of Police as P.W.2. On the part of the tenant, one witness viz. Balakrishnan, the sonin-law of the tenant, would be examined as R.W.1.

9. So far as the evidence of P.W.1 is concerned, he would only consolidate the case of the landlady who is none other than his wife and the evidence of P.W.2, the Sub Inspector of Police is nothing but a hoax which is irrelevant for any consideration since it is the evidence of R.W.1 that he was kept inside the police station and extracted Ex.A.12 letter from him to the effect that he would vacate the premises within six months, under coercion and threat that only if he give such a letter he would be sent out of the police station and therefore not only for his evidence but anything that has come out in the police station has no value unless it has been legally done. This Court is able to understand that what has been extracted from the police station by P.W.2 has been eschewed in evidence by both the Courts below and Ex.A.11 the GD entry of the Grand Bazar Police Station dated 27.2.1997 would also have only little value and they are irrelevant for consideration so far as deciding the rope between the landlady and the tenant is concerned.

10. On the part of R.W.1, he would depose to the effect that the landlady and her husband were not at all living there and three years ago, they shifted their residence to Madras where they are running a hotel under the name and style of Nayagara at Kodambakkam and it is not true that the landlady is genuinely requiring the premises for her personal use and occupation as it has been claimed in the petition. The evidence of R.W.1 is quite natural and believable on which reliance could be placed since there is no improbability or unbelievable material mixed in his evidence.

11. On the contrary, the evidence adduced on the part of P.Ws.1 and 2 are somewhat artificial and pointed to their claim of evicting the tenant.

12. It is relevant at this juncture to have a look at the documents marked on the part of the petitioner/landlord which are 12 in number. Ex.A.1 is the power of attorney of the landlord given in favour of her husband, Ex.A.2 is the copy of the plaint in O.S.No.628 of 1997, Ex.A.3 is the copy of the lawyer's notice, Ex.A.4 is the returned postal cover addressed to the respondent, Ex.A.5 is the copy of the ration card of P.W.1, Ex.A.6 is the telephone demand bill, Exs.A.7 to A.10 are the voters identity cards of landlord's husband, herself, one Tamizhselvan and Sivakumar and Exs.A.11 and A.12 have already been spoken about supra.

13. On the contrary, on the part of the tenant, he would only mark Ex.B1 as the sole exhibit i.e. the general power of attorney dated 23 .6.1997 given in favour of R.W.1.

14. The Rent Controller, having regard to these oral and documentary evidence, would assess the facts and circumstances of the case in his own way and would also go into the question of the transferable rights of the tenancy by the tenant in favour of anyone which is unnecessary and unwarranted in the context of the specific case put up by the landlord seeking the eviction of the tenant for her personal occupation of the premises nor has it got any bearing, on which the trial Court has dwelled too much in its judgment, which is of absolutely no value or relevance to the context of the case put up by the landlady only seeking the premises for her personal occupation under the specific provision of Section 10(3)(a)(iii) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969.

15. From this approach of the Rent Controller, the only conclusion that could be arrived at by this Court is that the Rent Controller has misdirected himself deviating from the scope of the case which is not permitted in law and therefore, needless to mention that the Rent Controller has not focussed his attention on the point for consideration and the purpose of eviction sought for by the landlady. Since the purpose other than under which the eviction is sought for has also been gone into and assessed by the Rent Controller, with application of mind on the subject was not proper nor focussed towards the only ground under which the eviction is sought for is scattered. Therefore, this Court has every reason to arrive at the conclusion that a serious error has been committed on the part of the Rent Controller so as to arrive at an erroneous conclusion without proper application of his mind resulting in serious miscarriage of justice. Even the documents placed on record on the part of the landlady as against the oral evidence of R.W.1 and the admitted case of the parties are neither sufficient nor establishing the case of the landlord in a reliable manner so as to arrive at the conclusion that the petitioner/landlady has specified the requirements of law in proof of the case put up for eviction of the tenant on ground of personal occupation with preponderance of probability.

16. It is further relevant to point out that only following the Rent Controller, the appellate authority also has dealt with the subject framing its own points and appreciating the evidence in its own manner so as to end up stating that the appellate authority was able to find no irregularity in the order of the lower Court and as such does not require any intervention by it. The said finding of the appellate authority is nothing but an erroneous conclusion arrived at by the appellate authority without properly appreciating the manner in which the trial Court has deviated itself from the norms and misdirecting itself from the scope of the petition.

17. Last but not the least, it should be spelt out that not a single reliable oral or documentary proof has been submitted on the part of the landlady for the genuine requirement of the premises for her personal occupation and therefore, there is no point in loitering much about on other aspects which have no direct application to the point in issue. Therefore, this Court is not able to find any justification in both the lower Courts arriving at the conclusion to evict the tenant, which, unless for the strong and genuine reasons the landlord is not entitled to and therefore on a overall consideration of all the facts and the evidence placed on record and the manner in which the lower Courts have appreciated the evidence placed on record, which have little or no value to the requirements of law so far as the ground under which the landlady has sought to evict the tenant is concerned, the only irresistible conclusion that this Court could arrive at, both on facts and in law, is that serious errors have been committed on the part of the lower Courts in arriving at their concurrent findings, which instead of being called as the concurrent findings, it could very well be branded as concurrent errors committed by them and hence the following order: In result,

(i)the above civil revision petition succeeds and the same is allowed. (ii)The judgment and decree dated 8.7.2002 rendered in RCA.No.46 of 1 999 by the III Additional District Judge, Pondicherry and the fair and decretal order dated 12.8.1999 made in HRCOP No.74 of 1998 by the Rent Controller, Pondicherry are set aside.

(iii)The HRCOP No.74 of 1998 on the file of the Rent Controller, Pondicherry stands dismissed.

However, in the circumstances of the case, there shall be no order as to costs.

Index: Yes

Internet: Yes

ra/Rao

To

1.The III Additional District Judge,

Pondicherry.

2.The Rent Controller,

Pondicherry.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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