@JUDGMENTTAG-ORDER
V. Ramasubramanian, J.@mdashThese Civil Revision Petitions arise out of the concurrent orders of dismissal of a petition for eviction filed by the landlord.
2. I have heard Mr. T.V. Ramanujun, learned Senior Counsel for the Petitioner in both the revisions and Mr. P. Gopalan, Learned Counsel for the Respondents in both the revisions.
3. The Petitioner herein filed RCOP Nos. 1508 and 1509 of 2001 against the Respondents in these revisions, seeking their eviction from non-residential buildings (shops), on the ground that he required the premises for own use and occupation. By a common order dated 18.7.2003, the Rent Controller dismissed the eviction petitions. The appeals filed by the Petitioner in R.C.A. Nos. 1213 and 1214 of 2003 were also dismissed by the Appellate Authority by an order dated 5.12.2008, forcing the Petitioner-landlord to come up with the above revisions.
4. Before getting into the rival contentions on merits, it is necessary to deal with a preliminary objection raised by the Learned Counsel for the Respondents with regard to the maintainability of the revisions.
MAINTAINABILITY:
5. The Appellate Authority dismissed RCA Nos. 1213 and 1214 of 2003 on 5.12.2008. The Petitioner-landlord applied for certified copies of the fair and decretal orders of the Appellate Authority, on 10.12.2008 and they were made ready on 13.7.2009. The revision petitions were filed on 6.8.2009. Therefore, they were in time and there is no doubt with regard to this fact.
6. However, the revision petitions were accompanied only by the certified copies of the fair and decretal orders of the Appellate Authority and not the fair and decretal orders of the Rent Controller. Therefore, the Registry returned the papers on 10.8.2009 for filing the certified copies of the fair and decretal orders of the Rent Controller. The revision papers are claimed to have been re-presented on 31.8.2009 along with the certified copies of the fair and decretal orders. But the date seal of the High Court in CRP(NPD) No. 2929 of 2009 shows that the papers in that revision were re-presented on 31.8.2009. The papers in CRP (NPD) No. 2930 of 2009 bear the date seal 10.9.2009 only.
7. On the basis of the above dates, it is contended by Mr. P. Gopalan, Learned Counsel for the Respondents that since the revision petitions, as originally filed on 6.8.2009, were not accompanied by the fair and decretal orders of the Rent Controller, as per the requirement of Order IV, Rule 21 of the High Court Appellate Side Rules, there was no proper presentation of the revision petitions. According to the Learned Counsel for the Respondents, it is only the date on which the papers were re-presented along with the certified copies of the fair and decretal orders of the Rent Controller, that could be taken to be the date of actual presentation of the revision petitions. If this date is taken to be the date of presentation, the revisions were barred by time. The revision petitions were not even accompanied by any application for condonation of delay. Therefore, the Learned Counsel for the Respondents contends that the revision petitions are not maintainable.
8. In support of his contention that the requirements of Order IV, Rule 21 of the High Court Appellate Side Rules are mandatory and that the non-compliance of the same would make the revisions not maintainable, the Learned Counsel for the Respondents relied upon three decisions, one of the Division Bench and the other two of the learned Single Judges of this Court. They are (i) M.A. Rajarathinam v. J. Rajammal 1982 (1) MLJ 294, (ii)
9. In response, Mr. T.V. Ramanujun, learned Senior Counsel for the Petitioner contended that since the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is a self contained Code and the mandate of Section 25, is not strictly similar to the mandate of Order IV, Rule 21 of the High Court Appellate Side Rules, the rigidity of the same may not be applicable to a revision under the Act. The learned Senior Counsel also contended that in any case, it was only a matter of procedure and that therefore, the non filing of the certified copies of the fair and decretal orders of the Rent Controller, would not make the presentation, improper. In support of his contention, the learned Senior Counsel relied upon two decisions of the Apex Court viz., (i)
10. In order to test the contention with regard to maintainability, it is necessary to have a look at Order IV, Rule 21 of the High Court Appellate Side Rules and it reads as follows:
The Civil Revision Petition u/s 115 of the Code or any other enactment, shall be accompanied by
(1) a certified copy of the decree or order which is to be revised.
(2) a certified copy of the judgment, if any, on which decree is based.
(3) a certified copy of the judgment or order, if any, of the Court or Tribunal of the first instance.
(4) one set of additional type written copies of the judgments and orders referred to above.
(5) as many clear authenticated copies on plain papers of the memorandum of grounds on the revision petition as there are Respondents to be served, together with another such copy for the Court record.
(6) the particulars for service of notices on the Respondents set out in Form No. 2 of the Schedule to these rules and
(7) the views prescribed for service of notices on the Respondents.
11. Since Rule 21 makes it applicable not only to the revision petitions filed u/s 115 of the Code, but also to revision petitions filed under any other enactment, there can be no doubt that the provisions of the Rule would apply to any revision petitions.
12. In M.A. Rajarathinam, on which heavy reliance is placed by the Learned Counsel for the Respondents, a Division Bench of this Court held that a revision to the High Court would not be regarded as having been properly presented unless the revision petition is accompanied by a certified copy of the order sought to be revised. The Division Bench also held that the Rules issued under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, do not expressly prescribe the procedure to be followed in the case of petitions for revision u/s 25 of the Act. Therefore, the Appellate Side Rules of the High Court, will necessarily have to be applied. Consequently, the Division Bench held that to this extent, the Rent Control Act and the Rules, are not a self contained Code.
13. Following the decision of the Division Bench, R. Balasubramanian, J., as he then was, held in K. Alagappan Padayatchi, that the requirements of Order IV, Rule 21 of the Appellate Side Rules, are mandatory and that the filing of the decree copy can never be dispensed with. Ultimately, the learned Judge held in para-8 of the judgment that a revision petition filed without the certified copies of the order and decretal order, cannot be taken to have been validly presented. The learned Judge went on to hold that the date on which the certified copies of the proceedings were filed alone can be taken to be the date of valid presentation. Consequently, the learned Judge granted liberty to the revision Petitioner in that case to file an appropriate affidavit explaining the delay in filing the revision.
14. In P. Palani, S. Manikumar, J., held that a memorandum of appeal is not valid unless it is accompanied by the certified copies of the decree and judgment. The learned Judge further held that even after the appeal is admitted, without a certified copy accompanying it, it can still be rejected on the ground that the certified copies were not filed.
15. Therefore, the above three decisions relied on by the Learned Counsel for the Respondents seem to support his contention that the date on which the requirements of Order IV, Rule 21 of the Appellate Side Rules are fulfilled, alone can be taken to be the date of presentation of the civil revision petition. They also seem to suggest that if the period of limitation had expired, by the time the certified copies of the orders of Court below are filed, the revision petitions cannot be entertained without an application for condonation of delay. Keeping the ratio laid down in the above decisions, let me now turn on to the decisions relied upon by the learned Senior Counsel for the Petitioner.
16. In Mahant Bikram Dass Chela, a writ petition was dismissed on 27.11.1970. A Letters Patent Appeal was filed on 23.12.1970, within 30 days from the date of the judgment. Notice was ordered in the Letters patent Appeal and after completion of service, the Respondents raised an objection that the appeal was not filed within 30 days. This objection was on the basis that on the date on which the appeal was filed, it was not accompanied by three sets of documents, which are required to be filed under the Rules of the High Court. In the face of the said objection, an application for condonation of delay was also filed. But the matter was referred to the Full Bench. One of the questions referred to the Full Bench, was as to whether the appeal filed under Clause 10 of the Letters patent, was no appeal in the eye of law or whether it was only an incomplete appeal. The Full Bench held that an appeal under Clause 10 of the Letters Patent, which did not comply with the mandatory provisions of Rule 3 of Chapter 2C of the Rules, is no appeal in the eye of law. After the Full Bench held so, the application for condonation of delay was dismissed and the matter was taken to the Supreme Court.
17. After referring to the provisions of order 41, Rule 1(1) of the Code, under which every appeal is required to be preferred in the form of a memorandum, accompanied by a copy of the decree appealed from and also after referring to the Rules and orders of the Punjab and Haryana High Court, the Supreme Court held that the assumption that the appeal was presented beyond the period of limitation was fallacious. The Court further held that Rule 3, Chapter 2C, is only directory in nature and not mandatory and that if there was substantial compliance with the Rule, it was only a case of irregularity in presenting the appeal.
18. In Bharat Khandasari Udyog, the Supreme Court held that the non filing of an attested copy of the order along with the memorandum of appeal, does not compel the Appellate Authority to dismiss the appeal, as if it had no other option. The appropriate thing in such cases was to call upon the Appellant to make good the defect within the time specified. If the cause for non compliance is not shown and the defect not made good, then alone the appeal should be dismissed. While holding so, the Supreme Court invited a reference to the observations made in
19. I have carefully considered the rival contentions and the decisions relied upon by the Learned Counsel appearing on both sides. As rightly pointed out by the Division Bench in M.A. Rajarathinam, neither the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 nor the Rules issued in terms of Section 34 thereof, prescribe the procedure for filing a revision u/s 25 of the Act. As a matter of fact, Section 34(1) of the Act which empowers the Government to make Rules, does not include within the purview of Sub-section (2), the procedure to be followed by this Court in the performance of its functions u/s 25. Sub-section (2) of Section 34 which lists out the matters in relation to which the Government may frame rules, specifically includes the procedure to be followed by the Controllers and the Appellate Authorities in the performance of their functions under the Act. But there is no reference in Sub-section (2) to the procedure to be followed by this Court in a revision u/s 25. Therefore, the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 also do not contain any prescription with regard to the procedure to be followed for filing of revisions or for the disposal of the revisions. Consequently, the procedure for filing revision petitions and the manner in which those revision petitions are to be disposed of, are to be traced only to the Appellate Side Rules of this Court.
20. As seen from Order IV, Rule 21, extracted supra, it enlists at least 7 items that should accompany a civil revision petition. While items (1) to (3) of Rule 21 relate to the certified copies of the judgment and decree (or judgment and order) of not only the Court of first instance, but also the Court of appellate jurisdiction, item (4) relates to a requirement that is intended to make the job of the Judge easy. Items (5), (6) & (7) are intended to make the opposite party know the grounds on which the order of the court below is challenged and to facilitate the Registry to effect service of notice on the Respondents, in the form filled up by the Petitioner himself, with the fees paid by the Petitioner, without causing the exchequer to spend any money. In other words, the requirement of one set of additional type written copies of the judgments and decrees/orders of both the Courts below, prescribed under item (4) is to enable a Judge dealing with the revision to read them without any difficulty. The requirement of additional authenticated copies of the memorandum of grounds is to put the opposite party on notice of the grounds on which the order impugned is challenged.
21. Keeping in mind the basis on which Rule 21 prescribes about 7 requirements, if we look at the contention that these requirements are mandatory, we would realise that certain unintended consequences may flow out of such a rigid view. I do not think that the requirements of Order IV, Rule 21 are divisible. If they are not divisible, as it appears from a plain reading of the Rule, then the failure to fulfill anyone of those requirements, should also be held to have resulted in an invalid presentation of the papers. To put it differently, the failure of a revision Petitioner to file one set of additional type written copies of the judgment and orders of the Courts below or the failure of a person to fill up Form No. 2 for service of notice on the Respondent or even the failure to pay the prescribed fees for service of notice on the Respondents, would make the presentation of the revision petition, an invalid one. If the papers so presented defectively, are returned by the Registry with a direction to re-present them within a stipulated time (say 10 days) and the time allowed by the Registry for compliance with the returns, falls beyond the period of limitation prescribed for filing a revision, then such re-presentation after rectifying the defects, would be of no consequence, if I accept the argument that the date of such re-presentation would be the date of actual presentation. As a matter of fact, the Registry cannot even prescribe a time limit for rectifying the defects and re-presenting the papers, if the date on which the papers were originally filed, cannot be taken to be the date of valid presentation of the papers. This will lead to another anomaly viz., that the rule enabling the Deputy Registrar to condone the delay in re-presentation would become redundant. In other words, if I accept the contention of the Learned Counsel for the Respondents, I have to direct the Registry to make a distinction henceforth, between cases where the defect in presentation is traceable to Order IV, Rule 21 and cases where the defect in presentation does not arise under Order IV, Rule 21. This will lead to another anomaly viz., that of enabling the Registry to prescribe a time limit for rectification of defects and for re-presentation, only in those cases where the defects fall outside Order IV, Rule 21. In cases which fall within the purview of Order IV, Rule 21, there cannot be a delay in re-presentation, since the date of re-presentation would be the date of proper presentation. Consequently, every delay in re-presentation would add virtually to a delay in the very presentation in such cases. Therefore, the interpretation sought to be advanced to the purport of Order IV, Rule 21, would create more problems than it would resolve. Hence, I cannot accept such a construction.
22. Let me also look at the issue from another angle. Item No. (4) of Order IV, Rule 21, prescribes the filing of additional type written copies. We have now come of age, ever since the date of framing of the above rule. Today xerox copies or laser print copies are accepted. But they do not have the sanction of Rule 21. Therefore, if one were to read the rule with magnifying glasses, the results would be disastrous.
23. Moreover, Order IV, Rule 21, merely lists out the requirements, in terms of procedure. The rule does not spell out the consequences of failure to fulfill the requirements. There may be many consequences of the failure to fulfill the requirements of the rule. One consequence that would be imminent and immediate, would be that the revision will not be taken on file and listed for hearing before a Judge, unless and until all the requirements are fulfilled. The rule need not spell out this consequence, since it is automatic, immediate and inseparable. But to say that a presentation which is not in accordance with the requirements of Order IV, Rule 21, is no presentation in the eye of law at all, lies at one extreme in the spectrum of consequences that would flow out of the non-fulfillment of the requirements of the rule. Unless such a consequence is spelt out clearly by the rule itself, it cannot be presumed to be inbuilt in the rule.
24. It is interesting to note that the decision of the Division Bench in M.A. Rajarathinam, arose out of a reference made by a single Judge. The question referred, was as to whether or not the time taken by a person to obtain certified copies of the order of the Appellate Authority should be excluded for the purpose of computing the period of limitation for filing a revision. While answering the reference in the affirmative, the Division Bench held incidentally that the memorandum of revision petition should be accompanied by a certified copy of the order sought to be revised, to make the presentation of the revision petition, a proper presentation under Order IV, Rule 21. The Division Bench did not address itself to the question whether the failure to fulfill anyone of the requirements of Order IV, Rule 21, would have the effect of postponing the date of presentation itself. Therefore, I can take the decision of the Division Bench only for what it lays down as a proposition of law and not what may consequently flow out of the decision.
25. The decision in Alagappan Padayatchi, arose out of an extreme case where a memorandum of civil revision was filed on 5.7.1996 without the certified copies of the fair and decretal orders. The papers were returned at least 3 times before the revision Petitioner filed the certified copies on 24.6.1997, almost after a year. Thereafter the papers were returned for a fourth time, directing the Petitioner to take out appropriate applications for condonation of delay. Therefore, the said case represents an extreme one, on the basis of which the requirements of Order IV, Rule 21, cannot be tested.
26. Similarly, the decision in P. Palani, also arose out of an extreme case where an application for the certified copy of the award of the Motor Accidents Claim Tribunal, had already been struck off. But the Insurance Company filed an appeal with an application to dispense with the certified copies of the award, suppressing the fact that the copy application had been struck off. Therefore, S. Manikumar, J., was constrained to review the order, allowing an application for condonation of the delay in filing the appeal. Hence, the said decision cannot also be taken to be laying down a proposition that the failure to fulfill anyone of the requirements of Order IV, Rule 21 would make the presentation of a revision non est in the eye of law.
27. On the other hand, the decision of the Supreme Court in Mahant Bikram Dass, relied upon by the learned Senior Counsel for the Petitioner, applies in all force. As I have elaborated above, it was a case where Rule 3 of Chapter 2-C of the Punjab and Haryana High Court Rules, clearly mandated that an appeal under Clause 10 of the Letters Patent, shall not be received unless it is accompanied by 3 typed copies of the memorandum of appeal, the judgment appealed from and the paper book. The non-fulfillment of the requirement of the said rule was held by the Full Bench of the Punjab and Haryana High Court to have the effect of making the presentation, no presentation in the eye of law. But the Supreme Court held that the rule was only directory in nature and that if there was substantial compliance of the rule, then it would be erroneous to treat the appeal as being barred by limitation. The Court also pointed out that when the appeal itself was preferred within the period of limitation, but there was an irregularity in presenting it, the considerations which influence the decision of Section 5 applications, are out of place.
28. Therefore, I hold that in as much as there was substantial compliance with the requirements of Order IV, Rule 21, the presentation of the revision was only an irregular presentation, capable of being cured by representation within the time stipulated by the Registry. It is only in cases where there is no substantial compliance with the Rule, such as cases where some paper not worthy of anything, is thrown into the Registry for the purpose of hood winking the Court to think that an appeal or revision was filed within time, that the presentation can be said to be no presentation at all. The question as to whether the presentation of an appeal or revision, is a valid presentation or irregular presentation or invalid presentation or no presentation at all, would depend more upon what was filed than upon what was not filed. Therefore, I hold that the present revision was filed in time and it is maintainable in law.
ON THE MERITS:
29. In so far as the merits are concerned, both the Rent Controller and the Appellate Authority have recorded a finding that even without evicting the Respondents, there is sufficient space available for the Petitioner to open a Departmental Store in the same premises. Both the authorities have also concluded that the relative hardship that the tenants would suffer, if an order of eviction was passed, was much greater than the benefit that would accrue to the landlord. Therefore Mr. P. Gopalan, Learned Counsel for the Respondents contended that the concurrent orders cannot be interfered with.
30. On the contrary, Mr. T.V. Ramanujun, learned Senior Counsel for the Petitioner contended that the findings with regard to the bona fides of the Petitioner and with regard to the relative hardship, are nothing but perverse and that therefore, they require interference in the revisions. Hence the question that falls for consideration is as to whether the findings of both the authorities are perverse.
31. According to the learned Senior Counsel for the Petitioner, the perversity of findings of both the authorities revolve around two issues viz., (i) the total number of shops available in the premises and (ii) the enhancement of rent by the landlord. On the question of relative hardship, the Respondents did not even get into the witness box so as to be entitled to a finding.
32. On the first issue, it is the contention of the learned Senior Counsel for the Petitioner, that there are only 4 shops in the entire building. Two shops are in the occupation of the Respondents in these revisions. The other two shops were vacated. But unfortunately, the Commissioner appointed by the Rent Controller, mistook a passage available in the property, which leads to the residential portion of the Petitioner in the first floor, to be a shop portion. Consequently, the Commissioner proceeded as though there were 5 shops available. On the basis of such a wrong finding, the Rent Controller as well as the Appellate Authority came to the conclusion that the available shops were enough for the Petitioner to carry on his business even without vacating the Respondents.
33. In paragraph-3 of the petition for eviction, the Petitioner clearly indicated that there were 4 shops in the ground floor of the building and that the Respondent in CRP (NPD) No. 2930 of 2009 was a tenant in respect of shop No. 1 and that he was carrying on business as a Pawn Broker in the petition building. The Respondent in CRP (NPD) No. 2930 of 2009 filed a counter before the Rent Controller. In paragraph-3 of the counter, the Respondent took a stand that the entire building consisted of ground floor, first floor and second floor. According to the Respondent, in the ground floor, there were 3 other shops let out to 3 other tenants. The Respondent was in occupation of one portion from 1985.
34. Similarly, in paragraph-3 of the eviction petition filed against the Respondent in the other revision petition CRP(NPD) No. 2929 of 2009 also, the Petitioner contended that there are 4 shops in the ground floor. In her counter to the eviction petition, the Respondent in the other civil revision petition admitted in paragraph-2 that there are 4 shops in the ground floor and that they were separately located. She claimed that she was a tenant in respect of shop No. 3 and that she was running a Pharmacy there.
35. Thus, the parties were not in issue as to the total number of shop portions in the ground floor. All the parties agreed that there were 4 shop portions. But unfortunately, the Advocate Commissioner appointed by the Rent Controller recorded a finding that the building had 5 shops. As per his report, shop No. 1 is in the occupation of Parasmal Jain and shop No. 3 is in the occupation of Kasturi, both of whom are the Respondents in the above revisions. Shop No. 2 originally occupied by one Raja Battery and shop No. 4 which is occupied by the landlord himself, were also noted down by the Advocate Commissioner. Apart from these 4 shops, the Commissioner noted the existence of shop No. 5. The findings recorded by the Commissioner in respect of shop No. 5, are as follows:
Shop No. 5 is with lock and key located in north-eastern corner and it is closed with rolling shutters. It is occupied by Petitioner/landlord. There are two wooden full size racks to accommodate note books, magazines, stationeries. There was a sump chamber in the schedule shop admeasuring height of (2.25'' x 2.25'' x 1''). There is a side entrance to this shop by which the Petitioner/landlord can enter from his residence to the shop, which has rolling shutters. Apart from that there are gas cylinders and some materials in this shop and myself along with the Petitioner/landlord, his counsel and counsel for Respondent entered this shop through landlord''s residence and took measurements, since it was locked from roadside by Petitioner/landlord.
36. Immediately upon the Commissioner filing a report into Court, the petitioner appears to have filed an objection. The objection was to the effect that there was no shop No. 5 and that the passage from the street to the petitioner''s residence has been mistaken by the Commissioner to be a shop solely on the basis that there were rolling shutters. The Petitioner also pointed out that even according to the Commissioner, the width of the passage was only 3 feet and there was a sewerage line and a sewerage pump in the passage.
37. But both the authorities have proceeded on the basis that there was a 5th shop and that shop Nos. 2, 4 and 5 were available for the Petitioner''s use to run his departmental stores.
38. Such a finding is clearly perverse on account of two reasons viz., (i) that when the admitted case of the parties was that there were only 4 shops, the Rent Controller and the Appellate Authority could not have taken a 5th shop to be in existence merely on the strength of the Commissioner''s report and (ii) that in any case, the shops that are available viz., shop Nos. 2 and 4 are alternative shops, in between which the Respondents were in occupation of shop Nos. 1 and 3. Therefore, a Provision Store cannot be certainly run by the Petitioner from shop Nos. 2 and 4 which are not located, adjoining each other, but located alternatively. Hence to this extent, the finding of both the authorities is certainly perverse and such an error can always be corrected in a revision. It is relevant to note that it has been the consistent view of the Supreme Court that the revisional jurisdiction of this Court u/s 25 of the Act, is much wider than the revisional jurisdiction u/s 115 Code of Civil Procedure.
39. It is relevant to note that even according to the Commissioner, it was only through the portion which the Commissioner described as shop No. 5 that the Petitioner had access to his residential portion. By holding that it can be used as a shop despite its width being 3-1/2 feet, both the authorities have failed to see that the access to the residential portion of the Petitioner would get completely sealed if this is accepted. Therefore, the learned Senior Counsel for the Petitioner is right in his contention that the findings in this regard are perverse.
40. The finding of both the authorities that the receipt of enhanced rent by the landlord indicated lack of bona fides, cannot be accepted. It is well settled that even the filing of a petition for fixation of fair rent, would not make the requirement of the landlord a mala fide one. The Supreme Court repeatedly held that a landlord is entitled to receive fair rent, till the date of the tenant vacating the premises. Therefore, both the authorities committed a grave error in holding that the requirement of the Petitioner was not bona fide, merely on the ground that the Petitioner was receiving enhanced rent.
41. Mr. P. Gopalan, Learned Counsel for the Respondents, wanted me to look into the conduct of the Petitioner. According to the Learned Counsel for the Petitioner, the Petitioner issued a legal notice in April 2001, filed a petition for eviction in August 2001 and the Commissioner inspected the property and filed a report in October 2002, pointing out that shop Nos. 2 and 4 were vacant and were actually in the occupation of the Petitioner. When evidence was recorded in December 2002 and February 2003, the Petitioner admitted in his deposition that at least one shop was lying vacant. Therefore, it is the contention of the Learned Counsel for the Respondents that if there was any bona fide on the part of the landlord, he would have occupied those portions and commenced his business. The very fact that he did not put the vacant portions to use, according to the Learned Counsel, would show that there was no bona fide requirement.
42. But the said contention is very hard to accept. As seen from the Commissioner''s report, the shop No. 2 was of the measurement of 16 feet in length and 7.8 feet in width. The Petitioner had stored some provisional items. In shop No. 4, the Petitioner had kept provisions as well as a refrigerator of 390 litres capacity and a weighing machine. But unfortunately, shop Nos. 2 and 4 are intercepted by shop No. 3. Therefore, one cannot expect the landlord to run his business in a full-fledged manner in the available shops in order to prove his bona fide.
43. The Learned Counsel for the Respondents next contended that the Petitioners in these revision petitions, are running a Pharmacy and a Pawn Broker shop respectively and that there are certain statutory requirements to be complied with. It is not easy for a Pawn Broker, according to the Learned Counsel for the Respondents, to shift his shop to another place, since the safety of gold and silver articles pledged with him by the borrowers had to be taken care of. He had to obtain a police license. The shifting of a Pharmacy is also not very easy since necessary license from the Controller of Drugs had to be obtained. Therefore, the Learned Counsel for the respondents contended that the relative hardship that the Respondents would suffer if an eviction is ordered, is much greater than the relative hardship that the Petitioner would suffer, if eviction is not ordered. Since two Courts below have concurrently found in favour of the Respondents on the question of relative hardship, the Learned Counsel for the Respondents submitted that these concurrent findings cannot be upset in the revision.
44. But relative hardship, as the very expression suggests is relative. The proceedings for eviction actually commenced 10 years ago exactly in August 2001. Therefore, the hardship that the Petitioner had suffered in not being able to have the Respondents vacated, has also to be considered. The fact that one has to obtain license for running a business, is of universal application. Therefore, such an argument is open to every tenant to raise. Hence, the same cannot be accepted.
45. The Learned Counsel for the Respondents relied upon the following decisions:
(i)
(ii) Sowkath Ali v. Pappu 2001 (2) CTC 200
(iii) Irene v. V.S. Venkataraman 2002 (1) CTC 631
(iv) N. Eswari v. K. Swarajya Lakshmi 2010 (2) LW 818
46. In B. Kandasamy Reddiar, the Supreme Court held that consideration of hardship is a mandatory requirement in accordance with the proviso to Section 10(3)(c) of the Act. There is no quarrel with this proposition. But the question is as to whether the hardship that the tenants would suffer if eviction is ordered, would outweigh the hardship that the landlord would suffer, if no eviction is ordered.
47. In Sowkath Ali, this Court found that there was an adjacent building of the same description available. Therefore, this Court found that the requirement was not bona fide. But in the case on hand, the availability of two shops which are alternatively located, cannot be considered to be something that would satisfy this requirement. Therefore, the said decision is of no assistance.
48. In Irene and N. Eswari, the Supreme Court pointed out that though the revisional jurisdiction u/s 25 of the Act, is slightly wider than the jurisdiction u/s 115 Code of Civil Procedure, it is not as wide as the power of the Appellate Authority.
49. It is certainly true that in a revision, I cannot act as an appellate court. But unfortunately for the Respondents, the findings of both the authorities on the question of bona fides appears to be perverse. As held by the Apex Court in Vallampati Kalavathi v. Haji Ismail 2001 (2) CTC 95, this Court can interfere with the concurrent findings, if such findings suffer from any inherent defects or if they are based on inadmissible or irrelevant materials or if they are so perverse that no reasonable person will come to such conclusion. As pointed out earlier, when the admitted case of both parties was that there were only 4 shops, the finding recorded by both the authorities as though there were 5 shop portions, on the basis of the report of the Commissioner, was nothing but perverse.
50. Similarly, in
51. In so far as the relative hardship is concerned, the Respondents/ tenants did not even go to the witness box. While the Respondent in one civil revision petition examined her son, the Respondent in the other civil revision petition examined his brother. Therefore, the finding on the question of relative hardship cannot be sustained.
52. In fine, I find that the Petitioner had made out a case for the grant of an order of eviction of the Respondents from the petition-premises for own use and occupation. The eviction proceedings were initiated in the year 2001. There is no dispute that the Respondents are in occupation of shop Nos. 1 and 3 and the Petitioner is now in occupation of shop Nos. 2 and 4. The Petitioner has established his requirement to be bona fide, by not letting out shop Nos. 2 and 4. While the Petitioner had spoken about the relative hardship that he would suffer, the Respondents failed to do so by themselves. Therefore, the petitions for eviction filed by the Petitioner deserve to be allowed.
53. Accordingly, the Civil Revision Petitions are allowed, the orders of the Rent Controller and the Appellate Authority, are set aside and the petitions for eviction filed by the Petitioner are allowed. There will be no order as to costs. Time for eviction two months.
54. After pronouncement of the orders, Learned Counsel for the Respondents requested that the Respondents may be granted six months time for vacating the property.
55. In view of the fact that both the Respondents are carrying on business in the petition building and in view of the fact that it may take time to get appropriate license and locate for another place, the Respondents are granted time upto 31.3.2012 for vacating and handing over vacant possession of the property to the Petitioner, subject to the condition that both the Respondents file affidavit of undertaking, within two weeks and also continue to pay the rent, without default.
