S. Arunachalam Pillai and Another vs Muthiah

Fakkir Mohammed, J.—Both the revision Petitioners are chants, The landlord purchased the denied building bearing Door Nos. 10-A and 10-B by means of a registered sale deed dated 11th February 1979, Door No. 10 was purchased in the name to the landlord''s mother under another sale deed of the same date Alter his purchase, the landlord sent notice dated 28th April 1979 to the two revision Petitioners requiring them to vacate the demised building staring that the tenants did not pay the rents in spite of repealed demands and that the buildings were required for the personal occupation of the landlord. The rents for the demised buildings, according to the landlord, were Rs. 70 and Rs. 50, per mensem for the premises 10A and 10B respectively. The tenants refuted the allegations made by the landlord by stating that the rent for 10A premises is only Rs. 35 p.m. and for that of 10B it is only Rs. 20 p.m., that the tenants tendered the said amount of rents to the landlord Who refused to accept the same, that thereafter the tenant sent the rents by Money Orders to the landlord, which were refused by the landlord, that there was no wilful default on the part of the tenants, that because the tenants refused to pay the rent at the enhanced rate of Rs. 70 and Rs. 50 respectively p.m., the landlord has come forward with the eviction petition on false grounds, that the father of the landlord has not purchased Door Nos. 10A and 10B in the name of the landlord No. 10A and 10B in the name of landlord .and Door No. 10 in the name of the landlord''s mother, that and Doss that landlord and his parents also were living only as tenant in Door No. 10 before the purchase on 11th February 1979 from the original owner of Door Nos. 10A, 10B, and 10 on an monthly rental of Rs. 45 and that the landlord being a bachelor his requirement of Door Nos. 10A and 10B for personal occupation is not bona fide.

The learned Rent Controller accepted the defence raised by the tenants and dismissed the eviction petitions filed against both the tenants. The landlord went on appeal in Civil Miscellaneous Appeal Nos. 31 and 32 of 1981 and the contentions of the landlord found favour with the appellate authority who has allowed the eviction petitions filed by the landlord. The correctness and legality of the orders of the appellate authority are challenged in revision in these two civil revision petitions. Since the contentions and defence are similar and the points that arise for consideration also are. similar, a common order is passed in both the civil revision petitions.

Now we will take up the first ground relating to wilful default in the payment of arrears of rent. In exhibit notice, the landlord has stated that the two tenants were paying a monthly rental of Rs. 70 for Door No. 10A and Rs. 50 for Door No. 10B per mensem, respectively and that even though the tenants are fully aware of the purchase by the landlord they did not pay the rents in spite of repeated requests and demands. The tenants have sent exhibit A-2 reply notice stating that the rent for Door No, 10A was Rs. 35 p.m., and not Rs. 70 a.m. and for Door No. 10B the rent was only Rs. 20. p.m. and not Rs. 50 p.m. that the tenancy is as per the English Calendar month, that they had been paying the rents regularly till the date, of purchase, by the landlord from the original owner that the tenants came to know of the landlord''s purchase only from the notice sent to them and hence they had sent the rents by Money Orders, that there was no wilful default in the payment; of rent and that exhibits B-1 and B-2 are the Money Order acknowledgments for having remitted the rents at the rates mentioned by the tenants.

P.W. 1 has admitted that he had used to receive the money orders, though he would add that because the rents were sent at lesser rate, he had refused and that otherwise the tenants have paid the rent at the rate stated'' by them up to this date. So far as the rate of rent is concerned, the'' tenants have specifically stated in their reply notice that they had been paying the rents only at Rs. 35 and Rs. 20 respectively for Door Nos. 10-A and 10-B to the previous owner, that the landlord has made a demand for double the rates of the rents and that the previous owner himself had told them to pay the rents A-2 the landlord. In spite of the said defence taken by the tenants in exhibit A-2 reply notice, the landlord, has not chosen to examine the previous owner to prove that the tenants were paying rents only at the rates of Rs. 70 and Rs. 50 and not at the rates Rs. 35 and Rs. 20 respectively, P.W. 1 has deposed, in cross examination that he did not obtain anything in writing from the previous owner regarding the rate of rent and that he did not obtain anything in writing from the previous owner regarding the rate of rent and, that he did not know whether the tenants were paying at the rate of Rs. 35 and Rs. 20 respectively for door Nos. 10A and 10B. The landlord has not filed any reply statement contradicting the objections raised in the counters and has not produced any written record from the previous owner regarding the rate of rent. In the registration copy of the sale deed, there is absolutely, no reference whatsoever to the occupation of the tenants of the rates of rents paid, by them. Thus, the landlord has failed to establish that the rent for the tenanted buildings is not Rs. 35 and Rs. 20 Respondent Since the landlord ha sailed the eviction petition after refusing to receive the two money orders in two successive months, there was no opportunity for the tenants to approach the Rent Controller seeking, per mission to deposit the rents in bank. Both the Courts below have cause to the correct consul on that there was no wilful default in the payment of rent:

As regards the requirement of owner''s occupation u/s 10(3)(a)(i) of the Act, it is relevant to extract the said Section, which is as follows:

The landlord may, subject to the provisions of Clause (d), apply, to the Controller for an order directing the tenant to put the landlord in possession of the building:

(i) in case it is a residential building if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned.

Section 10(3)(d) is not applicable to the facts of this case. Section 10(3)(e) provides as follows:

The Controller shall, if he is satisfied that the claim of the landlord is bonafide; make an order direction the, tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied the shall make an order rejecting the application.

Therefore, it has to be seen whether the landlord has established his bonafide requirement as per the activators specified in Sections 10(3)(a)(i) and 10(3)(e) of the Act.

The contention of the tenants that prior to the purchase of Door No. 10, 10-A and 10-B, the landlord was residing with his parents as tenants in Door No. 10 or a monthly rental of Rs. 45, that the tenants have been occupying Door Nos. 10-A and 10B has not been disputed. Therefore, the landlord was well aware of the rights of the tenants as he himself was a tenant long with his parents under the original owner. As per clause a l0(3)(a)(i) of the Act, the landlord has to prove that he requires the dismissed buildings for his own occupation or for the occupation of any member of his family and that he or any member of his family is not occupying a residential building of his own in the city, town or village concerned. It is admitted by the landlord that the members of his family and himself were residing in Door No. 10 as tenants and continued to insides there in after the purchase of Door No. 10 in the name of the mother. Of course, the tenants would say that Door No. 10 has been purchased binami by the landlord''s father in the name of the landlord''s mother. So far as the present petitions are concerned we are not concerned whether Door No. 10 has been purchased binami in the name of the landlord''s mother with ulterior motive. The fact remains that all the three buildings which belonged to the original owner were purchased by the family members of the landlord and that the landlord''s mother is the owner of Door No. 10. Admittedly, the landlord is a bachelor and he has specifically stated in his notice and petition that because his marriage alliance is in progress required the building for his own occupation. The tenant''s contention is that Door No. 10 is a bigger building than Door Nos. 10-A and 10-B and the same is not disputed. The facts that the electric meter board and electric connections for all the three buildings are fixed only in Door No. 10 and that Door Nos. 10-A and 10-B are separate portions in the same building are not disputed by the landlord. Therefore, the landlord could not have lived separately from the parents and it is only after his marriage it can be understood that the landlord would require the building for his separate residence. The landlord has not filed any reply counter stating that he had separated himself from his parents. It can very well be inferred from the facts and circumstances of the case that the father of the landlord, who was a tenant in Door No. 10 before the purchase, has intended to purchase the entire buildings bearing Door No. 10, 10-A and 10-B for a lesser price as the original owner could not get ''possession of the building in view of Act XVIII of 1960. Under the circumstances, the landlord''s occupation of the building along with members of his family, which includes his parents, will be in legal obstruction for his requirement of the demised portion for his own occupation or for the occupation of any member of his family.

u/s 2(6)(A) of the Act, member of his family is defined as follows:

member of his family, in relation to a landlord means his spouse, son, daughter, grand-child or dependant parent.

If the father of the landlord had purchased the property in his name and applied for eviction on the ground of requirement for himself and for the members of his family, he would be confronted with the definition of members of his family u/s 2(6)(A) of the Act. The present landlord being a bachelor has not spoken to the wherewithal for the purchase of the demised building. It is in evidence that the landlord and his father are doing business residing in the same demised building. Therefore, the father and mother of the landlord also become members of his family as defined in Section 2(6)(d) of the Act. That is why, the tenants have pleaded that the requirement of the and lord is not true and bona fide, since he is residing along with his parents in Door No. 10 Of course, Door No. 10 is mentioned in the counter and, according to the landlord, the correct Door No. is only 10, Thus, the first condition prescribed u/s 10(3)(a)(i) of the Act for bona fide requirement has not been satisfied.

In order to obviate the above difficulty, P.W. 1 has chosen to depose that there is some misunderstanding between himself and his father and that therefore he is taking his meals in hotels and sleeping either in the shop or in the house of a Christian lady. No such plea was taken either in the noticed or in the petition. The landlord has become wise only at the time of enquiry to give the above explanation. It is obvious, therefore, that because the landlord felt that his requirement for own occupation cannot be true and bone fide u/s 10(3)(a)(i) of the Act, he has thought of inventing new facts to conform to the prescriptions contained in Section 10(3)(a)(i) of the Act. In order to disprove the newly invented story at the time of giving evidence, the tenants have examined R.W. 2, who is a neighboring owner and whose occupation is not disputed in cross examination. R.W. 2 has categorically stated that the landlord is relating along with his parents only in Door No. 10 and that he is not at all living separately. Normally, the bachelor son (Landlord), who was residing alone with the parents till the date of purchase and who has been doing business, alone with the father, would not go separate, unless there was strong ill-feelings or misunderstandings between the father surd the son. There is absolutely no mention of such thing in the notice or in the petition. Therefore, the requirement of the bachelor landlord, who is residing along with his parents cannot be true and bona fide.

The finding of the learned Rent Controller is quite correct and the finding of the learned appellate authority reversing the said finding is not legally sound and correct. Therefore, the finding of the Appellate authority is not set aside and the finding of the learned Rent Controller is confirmed and stands restored.

In the result, therefore, the revision petitions are allowed with costs and the decision of the appellate authority is set aside.