ORDER
R. Banumathi, J.
1. Aggrieved by the concurrent findings of Order of eviction of Rent Control Authorities, Tenant has preferred these Revision Petitions.
2. Tenanted premises is D.No.5, Jayaram Chetty Street, Thiruvanmiyur, Chennai-41. Respondent became Tenant in 1980. Alleging that he has committed default from August 1993 to August 1994, landlord filed Eviction Petition to evict the Tenant on the ground of wilful default. The Petitioner/ landlord also sought for eviction, under Section 10(3)(a)(i) – owner’s occupation and Section 14(1)(a) – for carrying out repairs, of the Tamil Nadu Buildings [Lease and Rent Control] Act, 1960 [for short, ‘the Act’].
3. According to the Tenant, landlord has an advance of Rs. 1,500/- and the Tenant has spent Rs. 11,000/- for putting up platform around the well and flooring and other repairs in the Petition premises. Tenant has further alleged that there is no bonafide requirement and the landlord has brought 5 to 10 persons for showing the building to them and landlord has proposed to sell the property, and only for that purpose, Eviction Petition is filed. Tenant has further alleged that he has suffered paralytic attack and he has retired from service and his wife is a heart patient and needs periodical medical care and relative hardship weighs only in favour of the Respondent.
4. In consideration of evidence, Rent Controller found bonafide requirement of landlord and ordered eviction on the ground of owner’s occupation, observing that the landlord has no other building excepting the demised premises. Eviction on the ground of wilful default was negatived by the Rent Controller. Both landlord and Tenant have preferred appeal before the Appellate Authority. Appellate Authority has confirmed the Order of eviction on both grounds – for own use and occupation and for repairing. Finding that there is wilful default and that Tenant had not taken steps under Section 8(5) of the Act to deposit the rent, Appellate Authority reversed the finding of Rent Controller and ordered eviction also on the ground of wilful default.
5. Assailing the concurrent findings of Courts below, the learned Senior Counsel Mr.T.R.Rajagopalan, appearing for the Revision Petitioner/Tenant has submitted that the bonafide requirement was not properly considered by the authorities. It was further submitted that from September, 1994, rent was sent by money order and landlord has received the same and there is no wilful default. Arguing further, the learned Senior Counsel has submitted that landlord has already shifted his residence and hence, ground on which Petition was filed no longer subsist and in view of subsequent event, Order of eviction is to be reversed. In support of his contention, the learned Senior Counsel has placed reliance upon the following decisions Narasimharao v. Nasimuddin Ahmed 2001(4)CTC 371 Janakiraman v. Radhakrishnan Sethuraman v. Nagalakshmi and Anr. Sree Balaji Krishna Hardware Stores v. Srinivasaiah.
6. Submitting that bonafide requirement has been upheld by concurrent findings of Courts below, the learned Counsel for the landlord submitted that the concurrent findings recorded by the Courts below cannot be interfered with.
7. I have examined the records and considered the submissions.
8. Owner’s Occupation:
Respondent/landlord was residing in a rented premises at D.No.6, South Mada Street, Tiruvanmiyur on the monthly rent of Rs. 650/- under one George Balu. Landlord/PW-1 has stated that his landlord has sold out the premises, which was in occupation of the Petitioner and landlord of Petitioner has been insisting upon the Petitioner to vacate the premises. Stating that he owns no other building, the Petitioner filed Petition under Section 10(3)(a)(i) of the Act seeking eviction on the ground of owner’s occupation.
9. There is no denying that the landlord was residing in a rented premises. Exs.P-8 and P-9 are rental receipts paid by the Respondent, who is the landlord. Ex.P-3 is the letter [dated 15.11.1994] issued by the landlord to vacate the premises. Evidence of PW-1 is strengthened by the documents and landlord’s requirement was found to be bonafide by the authorities.
10. Under Section 10(3)(a)(i) of the Act, landlord is bound to prove that he is not occupying any building of his own or that of members of his family in the city. Condition required under Section 10(3)(a)(i) of the Act is satisfied, as the landlord is not occupying a building of his own. The learned Counsel for the Tenant has drawn the attention of the Court to the counter affidavit, wherein it is alleged that the landlord is residing at No. 12, Subramania Avenue, Tiruvanmiyur, Madras and not in the erstwhile premises – tenanted premises of one George Balu. It was contended that the Petitioner having shifted his residence, his need no longer survives and hence no bonafide requirement exists as on date. Under Section 10(3)(a)(i) of the Act, condition imposed is “not occupying residential building of his own”. The expression “of his own” means that there should be a building independently of his own and landlord should have full ownership. Only in those circumstances, it can be called “residential building of his own”. Mere possession or occupation by the landlord of another rented premises cannot deprive him of his right to claim an Order of eviction under Section 10(3)(a)(i) of the Act.
11. One of the contention urged by the Tenant is that the landlord belongs to a economically high class and he cannot go and live in the Petition premises because the Petition premises is situated in a slum area. It was further submitted that Eviction Petition is filed only for the purpose of evicting the Tenant and for selling away the tenanted premises. There is absolutely no evidence showing that the premises is in a slum area. In any event, it is for the landlord to decide how and in what manner he would live. It is not necessary for the Courts to make an endeavour as to how the landlord would live in slum area and adjust himself. It is not for the Tenant to dictate terms to the landlord stating that he cannot live in slum area.
12. In 1997 (1) LW 335 C.Kevalchand and Anr. v. Karuppanna Mudaliar and Ors., the Court has held “the landlord was residing in a multi-storeyed building. The Petition premises is a single room tenement. The authorities below erred in holding, that the landlord cannot make use of single tenement building. If the claim is bonafide the Court is not concerned the way in which the landlord will use the premises. Law does not prohibit a person who is residing in a multi-storeyed building from living in a house of his own though small in nature”.
13. Plea of Tenant that the landlord is economically higher in status and he may not go and occupy the tenament after obtaining eviction is not relevant material for considering the bonafides. When bonafide requirement is made out by the landlord, Courts below have rightly ordered eviction on the ground of owner’s occupation.
14. Repairing:
Landlord sought eviction on the ground of repairing the building. In his evidence, PW-1 has stated that the building needs to be repaired. Admittedly, the Tenant is in occupation of the premises from 1978. Having regard to the fact that Tenant has been residing in the premises for quite long years, extensive repairs are needed. Satisfying that repairs cannot be carried out without the building being vacated by the Tenant in occupation, Courts have ordered eviction on the ground under Section 14(1)(a) of the Act. Tenant has contended that he has spent Rs. 11,000/- for repairing and for rising the platform around the well and has produced Exs.R-4 to R-7. The fact that Tenant himself has repaired the premises shows that the building needs to be repaired and that they cannot be carried out if the Tenant remains in possession. There is no reason to differ from the Order of eviction ordered under Section 14(1)(a) of the Act.
15. Wilful default:
Landlord has pleaded default from August, 1993 to August, 1994. Ex.P-4-Notice [dated 24.11.1994] was sent to the Tenant calling upon him to pay the rent of Rs. 3,900/- for 13 months. Thereafter, Tenant has sent the rent for September, 1994 by Money Order. Though Tenant has pleaded that there was no arrears of rent, from August, 1993 to August, 1994, Tenant has not produced any document showing payments of rent for the said period.
16. According to the Tenant, he has paid advance of Rs. 1,500/-. Placing reliance upon [Narasimharao v. Nasimuddin Ahmed], it was contended that landlord is not entitled to claim eviction on the ground of wilful default when he was having excess amount of advance and landlord is bound to adjust the excess amount of advance towards rent from the Tenant. In the said decision, Supreme Court has held Tenant has requested to refund or adjust excess advance amount towards the rent due. In this case, Revision Petitioner/Tenant has not made any request for adjusting the excess advance amount towards the rent due. In any event, the advance amount with the landlord was only Rs. 1,500/- whereas arrears of rent from August, 1993 to August, 1994 was around Rs. 3,900/- and hence, Tenant is not right in contending that landlord was having excess advance amount and landlord ought to have adjusted the advance towards the rent.
17. When landlord has proved his case of wilful default, burden is on the Tenant to disprove the same. Tenant has raised two fold contentions that he has paid advance of Rs. 1,500/- and hence, there was no default. As discussed earlier, when the Tenant has not asked the landlord to adjust the advance towards rent, the Tenant must be deemed to have committed default and cannot escape the consequences of wilful default in payment. For those propositions, some of the Judgments are 1980(I) MLJ 116 Balachandran v. Champalal Jain 1981 (I) MLJ 516 Venkataramani v. Aravamuthan and Ors. 1990(I) MLJ 508 Syndicate bank v. Muthian – Nandlal Agarwal v. Ganesh Prasad Sah and Ors.
18. Coming to the next contention of Tenant that he has repaired the tenanted building by spending Rs. 11,000/-, it is to be noted that Tenant has not obtained any consent of the landlord for carrying out the repairs. It is the duty of the Tenant to tender rent regularly every month. If any repairs are done without the consent of the landlord, Tenant cannot seek adjustment of the same towards the rent payable.
19. Revision Petitioner/Tenant has raised the plea that he is paralytic and immobilised and his wife is a heart patient and that Tenants have no place to go and that relative hardship of the Tenants would be greater than the advantage of the landlord. Contending that there should be categoric finding by the authorities regarding the relative hardship, the learned Counsel for the Tenant has placed reliance upon 1997 (3)CTC 339 [cited supra]. Relative hardship is a relevant factor to be determined upon facts of each case.
20. When landlord files Petition for eviction on the ground of owner’s occupation, just because a Tenant will have to be ousted from the tenanted premises, is not the ground to reject the landlord’s claim. Though the Tenant may be put to some hardship, it cannot be the ground for rejecting the bonafide requirement of the landlord in seeking eviction on the ground of owner’s occupation.
21. Courts below have recorded concurrent findings and ordered eviction. Exercising revisional jurisdiction, under Section 25 of the Act, the High Court would not interfere with and reverse the conclusions concurrently reached by the Courts below [1995 Supp.(4) SCC 438 Gurbachan Singh v. Saliabi @ Bibijan]. Landlord has established bonafide requirement of the premises for his own use and occupation. Order of eviction passed by the Courts below is to be confirmed. This revision is bound to fail.
22. In the result, the Order Order made in RCA Nos. 20 & 811 of 2000 dated 23.2.2004 on the file of VIII Small causes Judge, Chennai, is confirmed. The Revision Petitions are dismissed. No costs. Consequently, CMP No. 12671/2004 is also dismissed. Two months time is granted for vacating and handing over vacant possession.