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Case Number

C.R.P No. 2679 of 1996.

Attorney(S)

Mr. V. Raghavachari for Petitioners.
Mr. G. Rangarathnam for Respondents.

Judges

K.P Sivasubramaniam, J.

Acts

Sections 10 (2) (i) and 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter called the Act),
provisions of Section 10(3) (c)
Section 10(3)(a)(iii)
Section 10(3) (c)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision is directed against the judgment of the Rent Control Appellate Authority (Subordinate Judge), Tiruppattur, in R.C.A. No. 5 of 1994 reversing the order of the Rent Controller (District Munsif), Tiruppattur, in R.C.O.P. No. 26 of 1986. The tenants are the revision petitioners before this Court.

The respondent-landlord filed an eviction petition under Sections 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (the Act), alleging wilful default in payment of rent and claiming owner's occupation. The premises were let for a watch shop (tenant’s account: originally from 1932; landlord pleaded lease since 5.10.1966) at a rent later fixed at Rs. 250 per month. The landlord alleged arrears for May–August 1986 (Rs. 750) and that his two sons were operating a watch-repair stall on a verandah which was unsafe and therefore required the tenanted space. A notice of termination dated 25.6.1986 was issued; no reply was received and the eviction petition was filed.

The tenant countered that the tenancy dated from 1932, that rent had been being paid and that the landlord refused to receive the rent for May 1986 (the tenant sent it by money order), that the tenant filed H.R.C.O.P. No. 22 of 1986 under Section 8(5) and deposited rent, and that the tenant had spent more than Rs. 25,000 on repairs. The Rent Controller rejected the landlord's grounds for eviction; the Appellate Authority reversed and held that the landlord had established both grounds. The tenants moved this revision.

Legal Issues Presented

Whether the tenant committed "wilful default" in payment of rent so as to justify eviction under the Act.
Whether the eviction petition on the ground of owner's requirement was maintainable under Section 10(3)(a)(iii) of the Act, or whether Section 10(3)(c) applied because the landlord occupied part of the same building.
What is the effect and enforceability of an order passed under Section 11(3) of the Act during the pendency of related proceedings, and whether such an order is operative if the Rent Controller or Appellate Authority has found no wilful default (including the related question concerning Section 11(4) consequences).

Arguments of the Parties

Tenant's Arguments (as advanced by Mr. V. Raghavachari)

The tenant admitted at some stage that on the date of the eviction petition there were no arrears; on that ground alone the eviction petition should be dismissed because there was in substance no default.
The order passed under Section 11(3) of the Act is inconsequential and not enforceable if the eviction petition itself is not maintainable; therefore allegations of non-compliance with that order cannot be entertained.
Because the landlord occupied a portion of the same building, the correct statutory provision for claiming personal occupation would be Section 10(3)(c) and not Section 10(3)(a)(iii); the petition under Section 10(3)(a)(iii) was therefore not maintainable.
Additional factual contentions in the tenant's counter: the landlord refused to receive the May 1986 rent (money order refused), the tenant filed Section 8(5) petition and deposited rent, the landlord had an alternative house behind the shop which could be used, the landlord's motive was to raise the rent, and the tenant had expended about Rs. 25,000 in repairs to the premises.

Landlord's Arguments

The landlord pleaded wilful default by the tenant for failure to pay rents due from 5.5.86 to 5.8.86 (arrears Rs. 750) and issued notice terminating the tenancy; the tenant did not comply.
The landlord asserted owner's occupation: his two sons were operating a watch-repair stall on a verandah in front of a ready-made garments shop, the place lacked safety, and he required the tenanted premises for their occupation/use.
The landlord sought an order that would effect eviction on the stated statutory grounds under the Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
K.S. Pandian v. Rukmani Bai and others (C.R.P. No. 1549 of 1996 dated 22.9.2000; reported 2001 1 L.W. 801)	There is no warrant to hold that the absence of arrears on the date of the eviction petition, or tendering arrears at the first hearing, must result in dismissal of the eviction petition.	The Court referred to this earlier judgment and held that it need not re‑decide the point in this petition because the earlier decision already rejected the tenant's narrow contention; consequently the Court did not permit that technical argument to be determinative here.
Gangaram v. N. Shankar Reddy (A.I.R. 1989 S.C. 302)	Explains that Section 10(3)(c) contemplates the oneness of a building and that a practical test is whether two portions can be sold and delivered independently without affecting the occupier's possession of the other; mere separation by a single wall does not make them one building.	The Court extracted and applied the passage to hold that if the two portions can be enjoyed or sold separately and a purchaser can be inducted into possession without affecting the landlord's occupation of his portion, Section 10(3)(c) does not apply and a claim under Section 10(3)(a)(iii) can be maintaineable.
Basheer Alam v. M.A. Rahim Sahib (2001 2 L.W. 210)	Affirmed that a petition under Section 11(4) of the Act is not maintainable at the revisional stage (upholding the tenant's objection in that context).	The Court relied on this outcome to justify refraining from considering the effect of the Rent Controller's order under Section 11(3), noting that the landlord did not pursue consequential orders under Section 11(4) and that the Court had dismissed a related Section 11(4) petition earlier in the same line of authority.
R. Radha v. C.R. Govindarajulu (91 L.W. 443)	Authority referenced for the principle that a petition under Section 11(4) may not be maintainable at the revisional stage (as followed in later decisions).	The Court cited this decision as a precedent followed by Basheer Alam and used it to support the decision not to examine the effects of the Section 11(3) order at revisional stage.
Shri Balaganesan Metals v. M.N. Shanmugam Chetty ((1987) 100 L.W. 1149 = A.I.R. 1987 S.C. 1668)	Authority relied upon by the tenant to contend that when the landlord occupies part of the building the correct provision is Section 10(3)(c), not Section 10(3)(a)(iii).	The Court acknowledged this authority as supporting the tenant's technical contention, but after examining the facts and other authorities the Court held that the factual test of separability of the portions made Section 10(3)(a)(iii) the appropriate provision in the present case.
Bengal Trading Co. v. G.M. Natarajan & others (1982 (1) L.W. 277)	Cited by the tenant in support of the contention that where the landlord occupies part of the building Section 10(3)(c) applies.	The Court treated this as part of the body of authority raising the same technical objection; it analyzed these authorities alongside Gangaram and other holdings and preferred the practical/separability test to determine the correct provision to be invoked.
S. Devan / V. Krishanan / K. Salim Ahmed v. N. Palaniappan (1996 (2) L.W. 555)	Held that where shops are contiguous but each has a separate door number and can be treated as separate units, a petition under Section 10(3)(a)(iii) is maintainable.	The Court cited this case as supportive authority showing that separability and independent enjoyment/sale of portions justify a claim under Section 10(3)(a)(iii); it reinforced the conclusion that the landlord's petition was maintainable under that provision.
Jothi Ammal v. Kulandai Vadivel (1998 (III) C.T.C. 457)	Example of a converse situation where a portion was capable of separate sale and therefore Section 10(3)(c) could not be maintained.	The Court used this decision to illustrate how factual separability leads to the conclusion that Section 10(3)(c) would not be the proper provision, supporting its view that 10(3)(a)(iii) applied here.

Court's Reasoning and Analysis

(Presented in the sequence the Court addressed the issues.)

On wilful default: The Court examined the landlord's evidence and noted an inconsistency: the landlord said in chief-examination there were no arrears on the date of the eviction petition, but in cross-examination and pleadings he alleged arrears. The Court considered that the chief statement could be a mistake and observed that a mere absence of arrears on the petition date would not inevitably mean there had been no default for the purposes of eviction; however, the Court was primarily concerned with whether the tenant's conduct amounted to wilful default.

The Court accepted the tenant's account as plausible: the eviction notice (dated 25.6.1986, received 8.7.1986) prominently sought vacant possession for the landlord's own requirement, which could have motivated the landlord to evade receipt of rent. The tenant attempted to deposit rent immediately upon receipt of the notice and filed a petition under Section 8(5) the same day (8.7.1986). The Rent Controller petition (R.C.O.P.) was filed on 6.8.1986, immediately after the notice period expired. Given that only one month’s rent (May 1986) was delayed and the tenant took prompt steps to deposit it, the Court concluded that the circumstances did not disclose wilful, deliberate or actionable default or supine indifference to payment.

On the order under Section 11(3) and the landlord's subsequent proceedings: The Court declined to decide the broader legal question whether an order made under Section 11(3) is operative where the Rent Controller has found no wilful default, for two practical reasons stated in the opinion: (1) no consequential order under Section 11(4) had been passed, and (2) the landlord had not pursued a consequential order either before the Rent Controller or the Appellate Authority. The Court also noted that a petition under Section 11(4) had previously been dismissed by this Court in a related matter (Basheer Alam), and that such petitions are not maintainable at the revisional stage following earlier authority (R. Radha). For these reasons the Court considered it unnecessary to examine the legal effect of the Section 11(3) order in the present revision.

On owner's occupation and appropriate statutory provision: The Court accepted the landlord's factual case that two sons were operating a watch-repair box on the verandah, that the place lacked safety and that the family had a genuine need to obtain the tenanted premises for occupation and livelihood. The Court acknowledged the tenant's technical contention (supported by authorities) that where the landlord occupies part of the same building Section 10(3)(c) is the proper provision to invoke. The Court then applied the "practical test" drawn from Gangaram (and other authorities): whether the two portions are separable so that one can be sold and a purchaser inducted into possession without affecting the landlord's enjoyment of his portion.

The Court relied on the tenant's own pleadings and oral evidence which admitted that the landlord owned a house just behind the shops and there was a road on the western side; the landlord's portion could be used separately and had a separate entrance via the street. These facts indicated the portions were divisible and independently enjoyable/sellable. The Court also observed that the tenant had not pleaded this objection as a mixed question of fact and law in the counter, and therefore the point was not earlier considered by the Rent Controller or Appellate Authority; nonetheless, on the merits the Court found the objection unsustainable and held that Section 10(3)(a)(iii) was the appropriate provision for the landlord's claim.

Net analytical outcome: The Court set aside the Appellate Authority's finding that the tenant was guilty of wilful default (finding instead that there was no such default) but upheld the landlord's claim for owner's occupation under Section 10(3)(a)(iii) because the tenanted portion was practically separable from the portion occupied by the landlord.

Holding and Implications

Holding: The Civil Revision Petition by the tenants is dismissed. The Court set aside the Appellate Authority's finding that the tenant was guilty of wilful default but upheld the landlord's claim for owner's occupation under Section 10(3)(a)(iii) of the Act. No costs were awarded.

Implications (direct effect on the parties):

The tenant's challenge (revision) fails: although the Court rejected the wilful-default ground, it accepted the owner's-occupation ground and therefore dismissed the revision petition brought by the tenants.
The landlord's claim for possession on the basis of owner's occupation under Section 10(3)(a)(iii) was held to be maintainable and has been upheld by the Court on the facts of this case (separability of the two portions).
The Court did not decide the broader legal question concerning the operative effect of a Section 11(3) order where a finding of wilful default is absent, because no consequential order under Section 11(4) had been pursued and because of earlier authority limiting Section 11(4) petitions at the revisional stage.

No broader or novel legal principle was announced by this opinion beyond its application of existing tests (separability/test for oneness of building) and previous authorities; the decision resolves the parties' dispute by dismissing the revision petition while upholding owner's occupation as the ground for eviction in the particular factual matrix described.

End of summary.

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Khusid Begum And 7 Others v. Basheer Alam

This revision is directed against the judgment of the Rent Control Appellate Authority, (Subordinate Judge), Tiruppattur, in R.C.A No. 5 of 1994 reversing the order of the Rent Controller, (District Munsif), Tiruppattur, in R.C.O.P No. 26 of 1986. The tenants are the revision petitioners before this Court.

2. The respondent herein, the landlord filed the petition for eviction on grounds of wilful default and for owner's occupation, contending that the petition premises belonging to him was leased out to the revision petitioners/tenants for running a watch shop on a monthly rent of Rs. 30/- from 5.10.1966 The rent was subsequently raised to Rs. 250/- per month and the said amount was being paid till April, 1986. Subsequently, the tenant committed wilful default and did not pay rents due from 5.5.86 to 5.8.86, thus leaving arrears of Rs. 750/-. It was further stated that his two sons Kathir Alam and Mohamed Rafi Alam were running a watch repair shop on rent in front of a verandah portion of a Readymade Garments shop. The said place was not a safe place and therefore, they require the space for conducting the repair shop. In spite of several demands, the request of the landlord was not acceded to by the tenants. A notice of termination was issued on 25.6.86 for which no reply was received from the tenants and hence the petition under Sections 10 (2) (i) and 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter called “the Act”), was filed.

3. In the counter filed by the tenant, he contended that the tenancy commenced not from the year 1966, but from 1932 itself and admitted the monthly rent to be Rs. 250/- from the year 1982. The rent was being paid regularly and there was no default and as regards the rent for the month of May 1986, the landlord refused to receive the rent. Thereupon, the amount was sent by Money Order which was also refused by him. The tenant filed H.R.C.O.P No. 22 of 1986 under Section 8 (5) of the Act and had deposited the rent duly and had continued to deposit the subsequent rent. Hence, there was no default. The sons of the petitioners were not doing any business in watch repair. The landlord was owning a house just behind the shop and there was a road on the western side also. The said house can be used as a shop and also for any business to be carried on by the sons of the landlord. The landlord has no idea of using the building, but had filed the present petition only to raise the rent. The tenant had also spent more than Rs. 25,000/- for effecting repairs which amount had not been paid by the landlord. There was also no notice of terminating the tenancy. During the pendency of the R.C.O.P, the tenant/revision petitioners, were brought on record as legal representatives of the tenant. The Rent Controller on consideration of the evidence rejected both the grounds for eviction. The Appellate Authority however, disagreed with the findings of the Rent Controller and held that the landlord had established both the grounds for eviction. Hence, the above revision petition by the tenants.

4. Mr. V. Raghavachari, learned counsel for the tenants, contends as follows: —

(a) The tenant had admitted in evidence that as on the date of the eviction petition, there was no default. On the said ground alone, the eviction petition was liable to be dismissed.

(b) Since the eviction petition itself was not maintainable, the order passed by the Court under Section 11 (3) of the Act was inconsequential and not enforceable. Therefore, any allegation of non-compliance of the said order, cannot be entertained.

(c) As regards owner's requirement, the landlord being an occupant of a portion of the same building in which the petition premises was situated, the petition for eviction under Section 10 (3) (a) (iii) of the Act was not maintainable and only a petition under Section 10 (3) (c) of the Act would be competent. Hence, the petition was liable to be dismissed on the said ground.

5. As regards wilful default, on an overall consideration of the facts and circumstances, I am inclined to hold that for the reasons stated below, the landlord had not made out a proper case of wilful default or any supine indifference on the part of the landlord which alone would result in ordering eviction.

6. It is true that the landlord in his chief-examination has stated that there were no arrears on the date of the eviction petition. But in the cross-examination, he has stated otherwise. Much importance need not be attached to his statement in the chief-examination which could be probably due to a mistake because he has pleaded otherwise and had also deposed differently in his cross-examination. Even if it was not a mistake, the mere fact that there was no arrears as on the date of the eviction petition alone need not lead to the conclusion that there was no default. On this issue, Mr. Raghavachari had relied on a few decisions in support of his contention that if on the date of the petition, there were no arrears or if on the date of the first hearing of the eviction petition or before the said date, the tenant had tendered all the arrears, then there would be no default. During the hearing of this revision petition the same point was urged in certain other revision petitions also and I had reserved orders in all the said petitions including this revision petition in order to hear a wider section of counsel representing both sides. After considering the said issue in detail, in K.S Pandian v. Rukmani Bai and others (C.R.P No. 1549 of 1996 dated 22.9.2000, since reported in 2001 1 L.W 801), I have held that there is absolutely no warrant to hold that the only circumstance that there was no arrears as on the date of the eviction petition or that arrears were tendered on the first hearing date of the petition should result in throwing out the petition for eviction. Therefore, there is no necessity to deal with the said issue in this petition.

7. In the present case, it is necessary only to consider as to whether the conduct of the tenant is such that it could be described as amounting to wilful default. Under Ex. P. 1 notice dated 25.6.86, the lessor had complaint that till then the rent for May, 1986 had not been paid. He had called upon the tenant to vacate the building on 5.8.86, A perusal of the notice shows that he had mainly projected his need to occupy the premises for his own requirement. Therefore, the motive for issuing the notice itself was for taking possession of the property. The said notice had been received by the tenant on 8.7.1986 It is quite possible that the tenant might have deliberately delayed in receiving the notice and after receipt of notice on 8.7.1986, on the same date, he had filed the petition under Section 8 (5) of the Act for depositing the rent. It is the case of the tenant that when he tendered the rent to the lessor he refused to receive the rent. Therefore, he had filed the petition for deposit of rent. The tenant's version is more plausible since the delay in the payment was only for the month of May and the rent for the month of June had to be paid on 5.7.1986 which was ready to be deposited on 8.7.1986 The tenor of the notice for eviction being mainly for the purpose of obtaining vacant possession for his personal requirement, it is possible that the landlord was not inclined to receive the rent. Even so the tenant had taken steps to deposit the rent before the Court immediately on the same day when he had received the notice. The R.C.O.P was filed on 6.8.1986, the very next date after the no-tice period was over. As stated earlier, in the notice, the lessor had required the tenant to hand over vacant possession of the terms mainly for his personal requirement. It must be borne in mind that on the date of the notice there was only delay in payment of rent for one month namely, for May, 1986 which cannot be treated as wilful default. But yet the lessor had called upon the tenant to vacate the premises. It is therefore, clear that in order to secure possession of the property, the lessor was not inclined to receive the rent, thereby driving the tenant to file a petition under Section 8(5) of the Act. In the said background, can the failure to pay the rent for the months of May and June, 1986 be described as wilful default, supine and deliberate indifference to pay the rent? In my opinion, the answer should be in the negative. The rent for the month of July was to be paid only on 5.8.1986 on which date the petition for eviction had been filed. The entire circumstances clearly suggest that the lessor was interested only in getting possession of the property at any cost because of his dire personal necessity and he had evaded receipt of rent and the tenant had also taken steps to deposit the rent on 8.7.1986 itself.

8. Therefore, I have no hesitation to hold that as on the date of the filing of the petition, the tenant cannot be accused of having committed wilful, deliberate and actionable default, even ignoring the statement of the lessor in the chief-examination that as on the date of the petition, there was no default. Therefore, the lessor's complaint of wilful default is liable to be rejected.

9. As regards the situation arising out of the order passed in the petition filed by the lessor under Section 11(3) of the Act which was filed on 12.12.1986, it is true that the petition was allowed and ordered on 20.4.1987 and on the same date, the petition filed by the tenant under Section 8(5) of the Act was also dismissed (Exs. A.3 and A.4). It is also true that notwithstanding the order under Section 11(3) of the Act, the tenant appears to have been irregular in complying with the said order. Mr. Raghavachari contends that the order under Section 11(3) was inoperative having regard to the fact that the Rent Controller found that the lessor had not made out a case of default in payment of rent. According to him, a petition under Section 11(3) of the Act was conceivable only during the pendency of a petition for eviction and the proceedings under Section 11 were not independent proceedings. Therefore, according to him in a case where the lessor fails to make out a case of wilful default, no order can be passed under Section 11(3) or 11(4) of the Act and any such order would inoperative and inexecutable.

10. I am inclined to hold that it is unnecessary for this Court to go into the said issue at this stage for two reasons. Firstly, no consequential order had been passed under Section 11(4) of the Act. Secondly, the landlord did not take any steps to have a consequential order passed under Section 11(4) of the Act either before the Rent Controller or the Appellate Authority. The landlord had also filed a petition in C.M.P No. 20320 of 1999 before this Court under Section 11(4) of the Act. The said petition was dismissed by me on 28.2.2000 (since reported in Basheer Alam v. M.A. Rahim Sahib) (2001 2 L.W 210) upholding the objection of the tenant that such a petition was not maintainable at the revisional stage, following the judgment of a Division Bench of this Court in R. Radha v. C.R Govindarajulu (91 L.W, 443). Therefore, it is not necessary to consider the effect of the order passed by the Rent Controller under Section 11(3) of the Act and the subsequent conduct of the tenant.

11. The other ground of eviction is that two sons of the lessor were running the Watch repair shop on a Box in the verandah in front of a Readymade garments shop by paying Rs. 12/- per day as rent and also that place lacks safety. Though the tenant had chosen to formally deny the contention of the lessor, the evidence of the petitioner clearly proves the claim of the lessor and the tenant was not able to seriously challenge the evidence of the landlord in this context. This is rather a pitiable instance of the welfare Legislation really causing grave inconvenience and hardship to poor people who are sought to be described as landlords. The premises was let for lease even as claimed by the tenant in the year 1932 from the mother of the petitioner and the so-called landlord's family had grown up in size in the course of all these years throwing two of his boys virtually on the streets to fend for themselves by keeping a box for repairing watches in a road side platform at the mercy of another shop owner, that too on a daily rent of Rs. 12/-. Even after 68 years, they are struggling to get possession of their property for the basic necessity of earning their daily bread. Therefore, I have no doubt in my mind about the bona fide requirement of the lessor's family.

12. But the more serious objection by the tenant is a technical plea and if sustainable, could result in negativing the relief to the poor lessor. The objection is that since the landlord is in occupation of a portion of the petition premises as his residence, the proper provision to be invoked is Section 10(3)(c) and not Section 10(3) (a) (iii) of the Act. It is no doubt, true that the lessor is in occupation of the building in which the petition premises is also situate. Learned counsel for the tenant had relied on the following judgments in support of his contention that when the landlord was in occupation of part of the premises, the application for personal occupation could be claimed only under Section 10(3) (c) and not under Section 10(3) (a) (iii) of the Act.

(i) Shri Balaganesan Metals v. M.N Shanmugam Chetty (1987) 100 L.W 1149 = A.I.R 1987 S.C, 1668.

(ii) Bengal Trading Co. v. G.M. Natarajan & 3 others (1982 (1) L.W, 277).

13. It is true that if the landlord is in occupation of a part of the building in which the tenanted premises is also situate which is sought to be recovered by the landlord for personal occupation, the appropriate provision will be Section 10(3)(c) of the Act. But Mr. G. Rangaratinam, learned counsel for the respondent points out that it is equally a settled proposition of law that even though two portions may be part of the same building, if one of the two properties can be enjoyed separately, and can be sold by the landlord and the purchaser be inducted in possession without disturbing the landlord's possession and enjoyment of the premises in his occupation, then the provisions of Section 10(3) (c) will not be attracted. It has also been held that the fact that two buildings were separated by a single wall with no intervening space between them, will not also alter the situation in any manner. The following extract from the judgment of the Supreme Court in Gangaram v. N. Shankar Reddy (A.I.R 1989 S.C, 302) would be relevant:

“7. On a consideration of the matter, we find that the contention of Mr. Nambiyar, which has found acceptance with the Appellate Court and the High Court is not all a tenable one. What S. 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in S. 10(3) (c) are “the landlord who is occupying only a part of a building” and “any tenant occupying the whole or any portion of the remaining part of the building”. Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings if they are owned two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord's possession and enjoyment of the premises in his occupation being affected. Viewed in that manner, it can at once be seen that the leased premises in the appellant's occupation can be independently sold and the purchaser delivered possession without the respondent's possession of door No. 1-1-249 being affected in any manner. As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Sri Sitaram Rao and the respondent was owning only door No. 1-1-249. Such being the case, merely because the appellant has acquired title to door No. 1-1-250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondent's building No. 1-1-249. Similarly, the fact that the two buildings are separated only by a single wall with no intervening space between them would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them.”

14. In S. Devan/V. Krishanan/K. Salim Ahmed v. N. Palaniappan (Landlord) (1996 (2) L.W, 555), S. Jagadeesan, J. dealt with a petition in which five shops were situate contiguously in a row. It was held that when each shop had the separate door number and treated as separate unit and it was open to the landlord to sell each shop as a separate unit. It was held that the petition under Section 10(3)(a)(iii) of the Act was maintainable. The judgment in Jothi Ammal v. Kulandai Vadivel (1998 (III) C.T.C, 457, K. Govindarajan, J. dealt with a petition under Section 10(3)(c) of the Act in respect of a property in which one of the two portions was capable of being sold separately without disturbing the possession of the other portion. This is a converse case and the learned Judge held that the petition under Section 10(3)(c) of the Act cannot be maintained.

15. In the background of the above statement of law the very admitted plea by the tenant himself would disclose a distinct nature of the two portions one in the occupation of the tenant and the other in the occupation of the landlord. In paragraph No. 6 of the counter in H.R.C.O.P No. 26 of 1986 the tenant had stated as follows: —

“That the petitioner is owning house just behind the shops. That there is a road on the western side of the house also. The said house can be used as shop also for any business to be carried on by the sons of the petitioner.”

16. Not being satisfied with the said pleadings, in the oral evidence also he has stated as follows:

17. Therefore, the above two extracted statements of the tenant himself bring out the distinctive and divisible nature of the property and there can be no doubt that two portions can be enjoyed and sold separately without causing hindrance to each other. The entrance to the portion in the occupation of the landlord itself is through the adjoining street. Therefore, I am inclined to hold that the petition for eviction had been rightly filed under Section 10(3)(a)(iii) of the Act.

18. I should also point out that this objection was not taken in the counter statement. Though the objection is based on a statutory provision, yet it is a mixed question of fact and law which requires to be pleaded so that the opposite party will have the liberty to let in evidence to show that the factual basis would justify the filing of the petition under Section 10(3)(a)(iii) of the Act. In the counter statement, the above extracted statement, had been raised only to the effect that the landlord has an alternative accommodation and not as an objection relating to the applicability of Section 10(3) (c) of the Act. That is the reason why the learned Rent Controller had not framed any such issue for consideration. Nor the said point was considered. Before the Appellate Authority also, the said point had not been raised or considered. Therefore, strictly speaking the tenant cannot be allowed to raise this point at the revisional stage. Even so, I have considered the objections on merits and for the reasons already stated, I am inclined to hold that the said objection is not sustainable.

19. In the result, though I am inclined to set aside the findings of the Appellate Authority, holding that the tenant was guilty of wilful default and that the finding has to be set aside, I am inclined to uphold the landlord's claim for owner's occupation under Section 10(3)(a)(iii) of the Act.

20. With the above observations, the Civil Revision Petition is dismissed. No costs.

Pr/VCS

Khusid Begum And 7 Others v. Basheer Alam

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Tenant's Arguments (as advanced by Mr. V. Raghavachari)

Landlord's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Khusid Begum And 7 Others v. Basheer Alam

Comments