KUTHALINGAM Vs. JAHIRHUSSAIN

JUDGEMENT

(1.) THE tenant is the petitioner in this revision. THE respondent is the landlord. He is the owner of the premises Door Nos.29,30,31,40-A and 40-B of Servaikaran Pudhu Street, Ward No.2, Street No.11, Shengottah. THE petitioner tenant is the lessee of Door No.30 of the same building. THE respondent filed the petition in R.C.O.P. No.2 of 1994 on the file of the Rent Controller, Shengottah for evicting the petitioner from the said premises on two grounds namely, wilful default in payment of rent and bona fide requirement for additional accommodation. THE rent controller rejected the petition for eviction filed by the respondent herein on both the grounds and dismissed the petition on 22.9.1995. As against this order, the landlord preferred R.C.A. No.8 of 1995. Before the Appellate Authority, the grounds of wilful default of payment of rent was not proved. THE lower Appellate Authority accepted the case of the respondent landlord on the ground of bona fide requirement for additional accommodation and allowed the appeal. THE order of the lower appellate court was passed on 29.11.1996. THE correctness of the order of the appellate authority ordering eviction on the ground of bona fide requirement for additional accommodation is challenged in this revision. Notice of motion was ordered on 10.1.1987. Interim stay was granted in the meanwhile. THE respondent, on service of notice, has now entered appearance and by "consent" of both the parties, the main revision itself is taken up for final hearing. THE only point that arise for consideration in this case is whether the requirement of the landlord for the portion occupied by the tenant in Door No.30 is bona fide or not and that the tenant is liable to be evicted on this ground. Before the Rent Controller, Exs. A-1 and A-2 were marked on the side of the landlord and Exs.R-1 to R-5 were marked on the side of the tenant. THE landlord Jahir Hussain was examined as P.W.1 and the tenant Kuthalingam was examined as P.W.1. THE report and the sketch prepared by the Advocate Commissioner was marked as Exs.C-1 and C-2.

(2.) MR. Sankara Subramaniam, learned counsel for the tenant, the writ petitioner herein, contended that the finding of the appellate authority that the petition schedule premises required by the landlord by way of additional accommodation is wrong and that the appellate authority should have held that the alleged requirement by the landlord is not bona fide. It is further contended that Sec.10(3)(c) of the Act cannot be interfered by the landlord in view of the fact that the petition schedule premises is not a portion of the premises alleged to be in the occupation of the landlord. Therefore, he contends that the appellate authorities should have held that both the premises were of separate door numbers and have separate ingress and egress and therefore the landlord cannot invoke Sec.10(3)(c) of the Act. It is also contended that the appellate authority has failed to consider the hardship that will be caused to the tenants. It is also submitted that even assuming that the requirement of the portion in Door No.30 is bona fide, the same may not be adequate for the landlord either to live there or to carry on any business in the premises. In support of his contention, MR.Sankara Subramaniam placed very strong reliance on the Judgment of the Supreme Court Gangaram v. Shankar Reddy, (1988)4 S.C.C. 648. Per contra, MR.C. Selvaraj, learned counsel appearing for the landlord, while reiterating the contentions raised before the appellate authority, by reply, contended that the finding of the appellate authority is purely based on the evidence let in by the landlord and therefore, such a finding is not liable to be interfered with and that the Judgment cited by the learned counsel for the tenant reported in Gangaram v. Shankar Reddy, (1988)4 S.C.C. 648 is not at all applicable to the facts and circumstances of the case and that the same is distinguishable on facts and also on law. He also contended that the tenant cannot dictate terms and it is not the concern of the tenant that the building now required by the landlord is inadequate for his occupation. I have factually gone through the affidavit, pleadings and also the evidence let in, both oral and documentary, and also the orders impugned in this civil revision petition. In my opinion, the lower appellate authority has rightly accepted the case of the landlord on the question of bona fide requirement of the premises by way of additional accommodation. It is not in dispute that the landlord is occupying Door No.31 in the very same premises. The appellate authority, on the basis of the evidence let in, both oral and documentary, came to the conclusion that the requirement by the landlord for additional accommodation is bona fide. The finding rendered by the appellate authority, in my opinion, is purely based on facts and also on the basis of the evidence tendered and therefore the said finding is not liable to be interfered with. I shall now deal with the argument of the learned counsel for the petitioner that the landlord cannot invoke Sec.10(3 )(c) of the Act in this case in view of the fact that the petition schedule premises is not a part of the premises alleged to be in his occupation since both the premises are given separate door numbers and separate ingress and egress. In the Judgment cited and reported in Gangaram v. Shankar Reddy, (1988)4 S.C.C 648, the facts are entirely different. That was a case filed by the tenant before the Supreme Court against the verdict of the audiorities below under the provisions of the Andhra Pradesh Rent Control Act. In mat case, the landlord filed a petition under Sec. 10(3) of the Act for eviction of the tenant from the premises bearing No.1-1-250, Chikkadpalli, Hyderabad. The landlord, apart from Door No. 1-1-250, was also owning the adjoining building bearing No.1-1-249. In the said building, the landlord was running a grocery shop in the ground floor and residing in the second and third floors subsequently constructed by him. On the ground of requirement of additional space for the grocery shop, the landlord sought the eviction of the tenant appellant before the Supreme Court. The Rent Controller rejected me petition holding that me leased premises was a separate building and did not form part of the building in which the respondent was carrying on his business. In the appeal preferred by the landlord, the Chief Judge, City Small Cause Court, Hyderabad, took a different view of the matter and held that even though the leased premises had a separate, municipal door number, it can be treated as forming part of the building in me respondent's occupation because both the buildings are owned by the second respondent therein and besides the two buildings are separated only by a single wall. The appellate authority allowed the appeal and ordered eviction of the tenant. The civil revision was filed by the tenant to the High Court did not meet with success and hence he filed an appeal before the Supreme Court. In this case, originally, a row of buildings comprised of Door Nos.1-1 -248 to 1-1-251 were owned by one B.Kistiyah and after him by one Rambai. The said Rambai sold the buildings in the row to two dif- ferent persons. The landlord and his brother were the two of such purchasers and they purchased the premises from 1-1-248 and 1-1-249. Subsequently, in a partition between them, premises No.1-1-249 was allotted to the landlord and premises 1-1-248 was allotted to his brother. After the partition was effected, the landlord constructed two storeys over his building by erecting concrete pillars on both sides of his building. At that time, the premises bearing Door No.1-1-250 was owned by an Advocate who objected the construction for erection of concrete pillars by the respondent. He complained of encroachment by the landlord and eventually the dispute was resolved by the landlord himself purchasing the house from the said advocate namely Door No.1-1-250. After constructing the two floors, the landlord shifted his residence to these floors and utilised the entire ground floor for his business. Therefore, me fact remains that before the building was purchased by the landlord, it was owned by one MR.Sitaram Rao, Advocate, and the landlord was owning only Door No.1-1-249. Such being the case, merely because the landlord had acquired title to Door No. 1-1-250 also, it can never be stated that the building in the tenancy of me appellant tenant became part and parcel of the landlord'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 does not alter the situation in any manner because the identify of the 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 walls intervening space in between them. As pointed out by the Supreme Court, What Sec.l0(3)(c) envisages is the oneness of the building and oneness of the ownership of two different buildings one occupied by the landlord and me other by the tenant. In the instant case Door Nos.29, 30,31,40,41, etc. are all owned by the landlord himself. The landlord is admittedly in occupation of Door No.31. The additional accommodation is now sought for Door No.30 which is in the occupation of the tenant. Merely because me two portions Door Nos.30 and 31 are separated only by a single wall, it would not alter the situation in any manner because the identify of the two portions is not to be judged on the basis of the buildings being separated by a single wall or two separate walls with intervening space in between them. No one can say that the two adjoining buildings bearing different door numbers, one occupied by the landlord and other by the tenant will make them one and the same building if they are owned by one person and separate buildings if they are owned by two different persons. Here it is not the case of two adjoining buildings bearing different door numbers. In this case, there is only one building owned by the landlord himself separated only by a single wall. There is no difficulty with regard to the identity of the two portions. Therefore, the judgment cited by the learned counsel for the petitioner reported in Gangaram v. N.Shankar Reddy, (1988)4 S.C.C. 648, in my view, is not applicable to the facts and circumstances of the case and it is distinguished on facts. When the two portions bearing door No.30 and 31 are admittedly in one building and the requirement of the landlord is also bona fide, there can be no impediment on the part of the landlord from asking for additional accommodation in the same building. I have already held that the finding of the appellate authority holding that the requirement of the building is bona fide and does not warrant any interference by this Court. As pointed out by the learned counsel for the respondent, it is not for the tenant to dictate terms and to say that the portion now asked for, additional accommodation is inadequate or insufficient for the purpose of carrying on business or for living purpose. It may be true that because of the order of eviction, the tenant may be put to some hardship. But that cannot be a ground for rejecting the bona fide requirement of the landlord in asking for additional accommodation in the same building.

(3.) AT this stage, Mr.Sankara Subramaniam, the learned counsel for the tenant requests six months" time for vacating the premises and hand over peaceful vacant possession of the same to the landlord. Mr.Selvaraj, the learned counsel for the petitioner has no objection for the same provided the tenant files an affidavit of undertaking to the said effect. The tenant shall file an affidavit of undertaking before 29.4.1997. Call on 29.4.1997 for considering the request for grant of time.