M. Sheriff vs Kathija Beevi and another

Abdul Hadi, J.—The tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ''the Act''),

against whom eviction order has been passed concurrently by both the Authorities below under S.10(3)(c) of the Act, has preferred this revision:

The only contention of the learned Counsel for the petitioner is that there is no plea by the landlords regarding the relative hardship spoken to under

S.10(3)(c) Proviso of the Act and that yet, the Court below has erroneously passed the eviction order. The said provision, S. 10(3)(c) Proviso

runs as follows:-

Provided that, in the case of an application under clause (c) the Controller shall reject the application if he is satisfied that the hardship which may

be caused to the tenant by granting it will out weight the advantage to the landlord.

According to the said counsel, when there is no such plea, no amount of evidence can be looked into relating to the said aspect and in a petition

under S.10(3)(c) of the Act unless the Court could go into that aspect and come to a decision regarding the same in favour of the landlord, no

eviction order could be passed. In this connection he also relies on Radhakrishnan v. Seethalakshmi, (1988-1- L.W.67). But, in this connection

first of all I must point out that it cannot be said that there is no plea at all regarding the said aspect. There is a definite plea regarding the same,

raised by the petitioner tenant in his counter statement to the rent control original petition, paragraph 6 of the said counter. After narrating his own

handful, the tenant says. ""The hardship which may be caused to the tenant by granting ejection will out weight the advantage to the landlord.

Based on this plea, admittedly evidence has been let in and finding also has been given by the Authorities below. Just to illustrate, this aspect has

been considered by the lower appellate court in paragraph 8 of its order in detail Therefore, it is clear that at the time when the enquiry of the rent

control original petition went on, this aspect relating to relative hardship was in fact in the contemplation of the parties. While so, there is no bar for

looking into the evidence on that aspect. Only in that way, the Supreme Court also in (sic) V.N. Dhana Rao (AIR 1956 S.C.593) has explained

the dictum which was laid down by the Privy Council in AIR 1930 57 (Privy Council) viz. ""No amount of evidence can be looked into on a plea

which was never put forward."" It is significant to point out here the following observation of the Supreme Court in the said decision while dealing

with the abovesaid dictum or rule:

But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue....

So, simply because there is no explicit plea in the rent control original petition of the landlords themselves, it cannot be contended that the evidence

which is admittedly there regarding the above aspect in the present case, should not be looked into and that eviction order should not be passed.

1A. Further, even in the rent control Original Petition, the landlords in paragraph 4, have narrated in detail how there would be hardship on their

side if the eviction order is not given. The said paragraph concludes thus:-

The petitioner and the members of his family are being put to very great hardship and inconveniences on account of insufficiently of

accommodation.

If really the relative hardship was not in contemplation of the landlords they need not have stated about their hardship. So, it can also be held that

by implication even the petitioners have pleaded about abovesaid relative hardship.

On reading the abovesaid judgment reported in the abovesaid 1988-1-L.W.67, it could be gathered that there was no plea at all by either party

regarding the abovesaid relative hardship. Only in such a situation, the learned Judge observed that without such a plea, eviction could not be

ordered under S.10(3)(c) of the Act. Therefore, the said decision in distinguishable and would not apply to the present facts that apart, in the other

judgment in Annakilli Ammal v. Husain and Hussain (1984) I M.LJ.340) relied on in Radhakrishnan v. Seethalakshmi (1988-1-L.W.67) what is

observed in relation to the abovesaid Section 10(3) (e) proviso is only as follows:-

....in order to enable the Rent Controller to give effect to this proviso, it would be necessary for the parties to plead that and place necessary

materials in support thereof, as otherwise, the question of relative hardship cannot be satisfactorily decided.

(emphasis supplied).

Thus, this also gives an indication that it is enough if there is a plea relating to the abovesaid aspect and that the said plea may be either from the

petitioner or the respondent or both.

Hence, the Civil Revision Petition is not admitted, but dismissed.

Abdul Hadi, J.: After the abovesaid order is pronounced, learned counsel for the petitioner requests time for vacating the premises. Three months

time is granted for vacating the premises, provided the petitioner files an affidavit of undertaking within one week to vacate the premises within the

aforesaid time allowed.