T M A ABDUL AZIZ Vs. VENKATACHALAM PILLAI

JUDGEMENT

(1.) The tenant is the petitioner in this civil revision petition. He is seeking to revise the order of the learned District Judge which has held that the wooden bunk which the respondent is using for the purpose of his business is not a "building" or "hut" within the meaning of the definition of "building" given in the Madras Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act). In that Act, Section 2 (1) defines a building as "any building or hut or part of a building or hut let or to be let' separately for residential or non-residential purposes" and includes various other items referred to in sub-clauses (a) and (b) of Section 2(1).

(2.) The petitioner is in occupation as tenant under the respondent of a small building measuring about 14' by 31/2' and is paying a rent of Rs. 6-8-0 per mensem. The respondent, on the other hand, is in possession of a bunk constructed completely of timber measuring about 5' by 41/2'. This bunk is placed upon cement blocks on the site belonging to Kumbe-swaraswami temple in Kumbakonam. The respondent sought to evict the petitioner on the ground that he had no place for carrying on his business. In the petition filed by him, he admitted that he was in occupation of a building by which he meant a wooden structure which he had constructed on the temple site and which structure happens to be removed every time, when the deity is taken in procession for 10 days in the year. The Rent Controller, on the admission of the respondent, dismissed the petition. Thereupon an appeal, was preferred against that order by the respondent before the learned Subordinate Judge and the learned Subordinate Judge confirmed that order. After sometime, the respondent again took out another application before the Rent Controller. The Rent Controller held that in' view of the previous application and the orders thereon the second application was not tenable. On appeal, the learned Subordinate Judge reversed the order of the Rent Controller and remanded the petition for enquiry and investigation. On remand, the Rent Controller held that the superstructure was a building and that the respondent was not entitled to an order for eviction. On appeal, the learned Subordinate Judge held that the superstructure which the respondent was possessed of was not a building. A further appeal was preferred before the learned District Judge who concurred with the learned Subordinate Judge. This revision is now preferred against the decision of the learned District Judge.

(3.) The contention raised by the learned counsel for the petitioner is that except on new facts there can be no second application by the landlord for evicting the tenant when once he took out an application on the plea that the building was required for his own use and when he got an adverse order which was confirmed on appeal. The learned counsel for the petitioner relies upon the decision of a Bench of this Court in -- 'Raghavalu Chetti v. Ramamurthi', 1951-1 Mad LJ (SN) 46 (A) where it has been held that Section 10 of the Act would not be a bar to a new application if there are new materials on which the application could be made. In this case the learned counsel's point is that no new materials have been placed before the court for entertaining a fresh application for the simple reason that even in the very first application taken out by the landlord he had stated that what he was in possession of was a building and that has not ceased to be a building and therefore no new circumstances or new materials had been available in order to justify a fresh application being filed. The correctness of this contention would depend upon the fact as to whether the superstructure which is in the possession of the landlord is really a building and comes within the scope of the definition of the word "building"' given in Section 2 of the Act or whether it is not a building. If the superstructure of the description given above which the landlord respondent is in occupation and where he is carrying on his business were to be taken as a building then certainly a second application would not lie. If it is not a building or even a hut, then certainly the application of the respondent would lie. Then the whole question will turn upon the point as to whether the structure which the respondent is occupying and where he is carrying on his business is a building within the meaning of Section 2 of the Act, or not.