IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26-4-2007 Coram The Honourable Mr.Justice K. VENKATARAMAN C.R.P.(NPD)No.1460 of 2005 and C.M.P.No.12106 of 2005 Ravindra Rao .. Petitioner Vs. Raman .. Respondent Civil Revision Petition against the fair and decretal order dated 5.11.2004 made in R.C.A.No.33 of 2003 on the file of the Rent Control Appellate Authority (the Principal Subordinate Judge), Chengalpattur reversing the fair and decretal order dated 26.9.2003 passed by the Rent Controller (the District Munsif), Tambaram. For Petitioner : Mr.V.Raghavachari For Respondent : Mr.C.T.Mohan O R D E R
The tenant is the petitioner in this revision. The respondent/landlord has filed R.C.O.P.No.9 of 2002 against the petitioner herein before the learned Rent Controller (District Munsif), Tambaram for eviction under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act on the ground of owner’s occupation. By an order dated 26.9.2003, the above referred Rent Controller dismissed the said application filed by the respondent herein. Aggrieved against the same, the respondent herein preferred an appeal in R.C.A.No.33 of 2003 before the Rent Control Appellate Authority (the Principal Subordinate Judge), Chengalpattu. The learned Rent Control Appellate Authority referred to above by his order dated 5.11.2004 set aside the order passed by the Rent Controller and allowed the appeal thereby ordering the eviction of the petitioner herein. Challenging the said order, the present revision has been filed by the petitioner/tenant.
2. For the sake of convenience, the petitioner in this revision is hereinafter referred to as “the tenant” and the respondent as “the landlord”.
3. The case of the landlord as put forth by him before the Rent Controller was that the tenant was inducted in the petition premisses on a monthly rent of Rs.1,300/-. After the demise of his son, to avoid loneliness, he along with his wife joined with his daughter and son-in-law in the flat owned by his daughter at Besant Nagar, Chennai. The landlord, who was aged 77 years at the time filing the petition, is suffering from filaria. The flat of the landlord’s daughter is situated in third floor and due to frequent power shut down, he is not able to use the lift in the apartment and further, he is unable to move for emergent medical attendance as and when he requires. Further, there is no sufficient accommodation in his daughter’s flat where his son-in-law and grand children are living. Apart from discomfort and inconvenience those existed in the flat of the landlord’s daughter, the landlord wants to live and spend his last days of life in the house earned by him. He also wants to live salubriously with the gifts of nature, such as free air and light available in the petition premises. Though the tenant has agreed to vacate the premises, since he has not kept his premises, the landlord was constrained to file R.C.O.P.NO.9 of 2002 before the Rent Controller for eviction of the tenant.
4. The said application for eviction was resisted by the tenant contending that the landlord is now residing with his daughter at Besant Nagar and the petition premises is situated away from the bus stand and the railway station and it would be highly inconvenient for the landlord to fulfill his urgent necessities such as medical treatment, etc. The landlord’s son-in-law tried to evict the tenant which has necessitated the tenant to file the suit in O.S.No.153 of 2002 praying that he should not be evicted from the petition premises except by due process of law. The sum and substances of the said counter is on the footing that with a view to evict him from the petition premises, the landlord has filed the said eviction petition.
5. The learned Rent Controller found that the requirement of the landlord is not bona fide. Further, it has been held by the Rent Controller that the landlord has not averred in his application that he is not in occupation of a residential building of his own in the city, town or village concerned, which averment is very essential in an application for owner’s occupation. Further, the Rent Controller has also found that the landlord has not brought out his case within the legal framework by pleading and proving that he did not in occupation of any residential building of his own in the town where the petition premises is situated. Thus, the learned Rent Controller has finally dismissed the application filed by the landlord.
6. The learned Rent Control Appellate Authority, on appeal by the landlord, held that since the landlord has no other residential building other than the petition premises, mere non-pleading in that regard should not be put against him. Further, the Appellate Authority has held that the landlord has satisfied the relevant ingredients with regard to his claim and he is entitled for delivery of vacant possession of the petition premises. Challenging the said fair and final order, the present revision petition has been filed.
7. Mr.V.Raghavachari, the learned counsel appearing for the petitioner/tenant, contended that the landlord has not produced any oral or documentary evidence to show that he is in need of the petition premises. He has further argued that the landlord has not pleaded anywhere in his petition or during the examination that he does not own any other residential property in that area which is essential as per the proviso to Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended. Thus, the main contention of the learned counsel appearing for the tenant is that there should be a pleading or evidence that the landlord or any member of his family for whose benefit the premisses is required is not occupying any building of his own in the city, town or village concerned. Since there is no pleading or evidence to that effect, the Appellate Authority should not have entertained the plea of the landlord and should not have allowed the appeal.
8. Per contra, Mr.C.T.Mohan, the learned counsel appearing for the respondent/landlord, contended that it is the specific case of the landlord that he is residing in a flat owned by his daughter and that he requires the petition premises for his own occupation. Further, he has submitted that when the parties are aware of the main issue, the lack of pleadings cannot be given much importance.
9. I have heard the learned counsel for the petitioner and the respondent.
10. In the application for eviction, the petitioner has averred that after the death of his son, to avoid loneliness, he along with his wife had joined with his daughter and they are residing in a flat owned by his daughter and son-in-law. Now he wants to come and live in the premises owned by him. Since he is living along with his daughter in the third floor of the flat, he has to depend upon the lift for coming out of the flat. During power shut down, he has to suffer. In the counter affidavit, the tenant has admitted that the landlord is old, but he has not denied the allegation that the flat in which the landlord is residing along with his daughter and son-in-law owned by them. Section 10(3)(a)(i) of the Act prohibits the claim of the landlord or landlady only if he or she resides in a building of his or her own. In the case on hand, it is the definite case of the landlord that the premises in which he is now residing along with his daughter is owned by his daughter and son-in-law which fact has not been denied by the tenant. When that is an admitted position, there cannot be any impediment for the landlord to seek eviction of the tenant for his own use and occupation. Pleading that the landlord or any member of the family for whose benefit the premises is required is not occupying any building of his own in the city, town or village concerned, is the basic pleading which is essential if a person seeks eviction of a tenant. But, in the present case, as stated already, it is the definite case of the landlord that he requires the petition premises for his own occupation and that he has specifically pleaded that he is residing in a flat owned by his daughter and son-in-law, which fact has not been denied by the tenant.
11. It has to be seen whether, still on these pleadings, the landlord is required to state that he is not occupying the building of his own. The intention of the legislature while incorporating Section 10(3)(a)(i) or Section 10(3)(a)(iii) of the Act is that a landlord who is in occupation of a building or any member of his family in occupation of a building for whose benefit the premises is required, should not be occupying a building of his own. The reason being that, in spite of occupation, neither the landlord nor his family member for whose benefit the premises is required still seek the tenant to vacate, on the ground of own occupation. When that is the intention of the legislature while incorporating Section 10(3)(a)(i) or Section 10(3)(a)(iii) of the Act, merely because it has not been pleaded by the landlord that he is not occupying a building of his own in his application may not be necessary, since it is the definite case of the landlord that he is residing in a flat owned by his daughter and son-in-law, which fact not disputed by the tenant.
12. The learned counsel appearing for the petitioner has drawn my attention to the judgment of this Court reported in 1992 T.N.L.J.110 (A.N.SHANMUGA SUNDARAM MUDALIAR AND 4 OTHERS v. A.P.MANI). That is the case where the landlord has sought eviction of a non-residential premises for the occupation of his own for the purpose of the business of his son. In that case, the landlord has not established that his son was doing the business. In those circumstances, in the above referred decision, this Court has held that the requirement as contemplated under Section 10(3)(a)(iii) of the Act has not been satisfied. In the particular facts of that case, the learned Judge has held that there should be a pleading that neither the landlord nor any member of his family, whose benefit the premises is required, is not occupying any building of his own for the purpose of business.
13. Another decision cited by the learned counsel for the petitioner is reported in 1993 (1) L.W. 356 (RAMALINGAM PILLAI v. MURUGESAN). Even in that case, the requirement was for the son of the landlord. Hence, the learned Judge of this Court in the said decision has held there is no pleading as contemplated under Section 10(3)(a)(iii) of the Act. But, in the case on hand, it is nobody’s case that the landlord is residing in a building of his own. Furthermore, the averment in the application that the landlord is residing in a premises owned by his daughter and son-in-law has not been disputed by the tenant.
14. In this connection, the learned counsel appearing for the respondent/landlord, relied on a decision of this Court reported in 1996-2-L.W. 494 (RAGUPATHY, G.R. v. DR.K.SANKAR) wherein it has been clearly spelt out that when the parties are aware of the main issue, the lack of pleadings cannot be given much importance. Further, it has been held therein that the pleading before the Rent Controller has not to be given the same importance as pleading before the Civil Court.
15. The next decision cited by the learned counsel for the respondent is reported in 1992 M.L.J. 422 (NEMICHAND JAIN v. ETHIRAJAN) wherein Justice M. SRINIVASAN (as His Lordship then was) held in the said decision that the absence of an express sentence in the pleading does not vitiate the proceedings.
16. The other decision that has been relied on by the learned counsel for respondent is reported in 2001-1-L.W. 153 (L.PUTTALINGAM v. L.SIVALINGAM) wherein this Court has held that the purpose of pleadings is only to give notice of the case put forth by either party. When tenant has effectively made the case in spite of lack of pleadings, he cannot complain later, lack of pleadings.
17. The learned counsel cited yet another decision reported in 1999 (1)S.C.C. 141 (RAM NARAIN ARORA v. ASHA RANI) wherein the Honourable Apex Court has held that defective or vague pleadings would not be fatal if both parties understood what the case pleaded was and accordingly placed material before the court and neither party was prejudiced.
18. In the given case on hand, it is the specific case of the landlord that he is residing in the flat owned by his daughter and son-in-law and he requires the premises in occupation of the tenant for his own occupation. When the said fact that the landlord is residing in the premises owned by his daughter and son-in-law, is not disputed, then the pleading that he does not own any other building is not at all required. The reason being that only in case if he is occupying a building of his own, he is not entitled to seek eviction of the tenant in respect of other building which he owns. That should be intention of the legislature while incorporating Section 10(3)(a)(i) or 10(3)(a)(iii) of the Act. The High Court sitting in revisional jurisdiction under Section 25 of the Act, can examine the legality or propriety of the proceedings before the Rent Controller and can examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. The High Court can interfere in a revision only if the finding on fact is on a wrong premise of law. In the case on hand, the Rent Controller proceeded to analyse the matter that the failure of the landlord to state that he is not occupying a building of his own is fatal, but the Rent Control Appellate Authority has rightly held that such pleadings is not necessary in the given case on hand.
19. In these circumstances, it has become necessary for this Court to examine the matter and I am inclined to hold that such pleadings may not be necessary for the purpose of the case on hand. Thus, looking at the entire matter in issue on the pleadings raised by the landlord and the counter that has been filed by the tenant, I have no hesitation to hold that the landlord has proved that his requirement is bona fide and that non-pleading of the fact that he does not occupy any building of his own may not be necessary for the case on hand. The Rent Control Appellate Authority has considered the matter in a proper perspective and has ordered eviction. I do not find any illegality or infirmity in the said order.
20. In the result, the fair and decretal order of the learned Rent Control Appellate Authority (the Principal Subordinate Judge), Chengalpattu made in R.C.A.No.33 of 2003 dated 5.11.2004 is liable to be confirmed and accordingly, confirmed. The Civil Revision Petition stands dismissed. Consequently, C.M.P.No.12106 of 2005 is closed. No costs.
21. However, the petitioner/tenant is given six months’ time to vacate and hand over the vacant possession of the petition premises on the following terms:- (a) That the petitioner/tenant shall file an affidavit of undertaking within two weeks from this date stating that he will vacate and hand over vacant possession of the petition premises to the respondent/ landlord without driving him out to file the execution petition; and (b) That the petitioner/tenant shall continue to pay the rent regularly to the respondent/landlord.
dpp
To
1. The Rent Control Appellate Authority (the Principal
Subordinate Judge),
Chengalpattur.
2. The Rent Controller (the District Munsif),
Tambaram.