- (1.) THE above civil revision petition is directed against the fair and decretal order dated 10.12.1997 made in R.C.A.No.183 of 1996 by the Rent Control Appellate Authority and the VIII Judge, Small Causes Court, Madras thereby confirming the fair and decretal order dated 8.8.1995 made in R.C.O.P.No.1384 of 1992 by the Rent Controller and XIII Judge, Small Causes Court, Madras, in ordering the eviction of the revision petitioners herein from the premises concerned on an application filed by the respondent herein under Sec.10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
(2.) THE contents of the petition filed by the landlady under Sec.10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) in the R.C.O.P.No.1384 of 1992 are that, the petition mentioned properties and some other properties were originally belonging to her mother's father, one Chidambaram Pillai and the said 4 properties fell to the share of her mother Dakshayini Ammal; that her three sisters and herself had a partition of the said properties among themselves and the premises located at Vadamalai Pillai Street, Kosapet, Madras, the petition schedule property herein fell to the share of the petitioner thus, herself becoming the absolute owner of the same; that the first, second and third revision petitions are the tenants of different portions of the petitions schedule property respectively paying a rent of Rs.120, Rs.120 and Rs.210 besides having separate and common facilities and the rents are to be paid in every English calendar month. The further averments of the petition filed by the landlord/respondent herein before the Rent Controller are that, she herself is an occupant of a landed building at 45, Kandaswamy Koil Street, Perambur Barracks,Madras-12, and has taken up her residence along with her sister R.Banumathi which fell to the share of her sister in the aforementioned partition; that for herself, she does not own any other property in the city of Madras; that herself, her husband and two daughters were carrying on their life at her sister's residence with great difficulties and inconvenience and without any comfort; that unless in the above circumstances, the revision petitioners/tenants are vacated, she would be subjected to still greater hardships in the time to come and would pray the Rent Controller for eviction of the revision petitioners/tenants. In the counter filed by the respondents/petitioners, they would state that petitioner is not the landlady; that they were not in the habit of paying any rent to the petitioner; that they have been paying the rent only to her mother Dakshayini Ammal every month and the said rents used to be received by her that they were only tenants under Dakshayini Ammal and not under the petitioner/ respondent and there is no relationship of landlord-tenant between themselves and the petitioner; that the averment that the petition is residing in her sister's house is false and incorrect and is one intended for the purpose of eviction of the lawful tenants; that the respondent/ petitioner is already in occupation of her own house and the petition is not on merit and has been filed on mala fide intentions to evict these revision petitioners some how or other, and would ultimately pray to dismiss the eviction petition with costs. In consideration of the facts and circumstances of the case as pleaded by parties and on further consideration of the legal position, the Rent Controller appreciating the evidence placed on record in his own way ultimately arrived at the conclusion to allow the application filed by the respondent herein, testifying the validity of which the appellants herein have preferred an appeal before the Rent Control Appellate Authority and VIII Judge, Small Causes Court, Madras, in R.C.A.No.183 of 1996 and the said court also confirming the fair and decretal order passed by the Rent Controller, ordering the eviction of the tenant therein thus dismissing the appeal preferred by the present revision petitioners. Aggrieved and challenging the fair and decretal order as passed by the Rent Control Appellate Authority, the tenants/ appellants have come forward to prefer the above revision petition. During arguments, the learned counsel appearing for the revision petitioners/ tenants would contend that the application filed before the Rent Controller was made under Sec.10(3)(a)(i) of the Act i.e., requiring the premises for owner's occupation; that the Order passed by the Appellate Authority is non est in law on ground that the appellate authority did not frame the points as emphasized under O.41, Rule 31, C.P.C. and would cite a judgment reported in K.M.M.Kadar Hussain v. O.M.R.Selvaraj K.M.M.Kadar Hussain v. O.M.R.Selvaraj K.M.M.Kadar Hussain v. O.M.R.Selvaraj , (1997)I C.T.C. 559 which is a decision of the Division Bench wherein it has been held that, "We have gone through the judgment of the learned single Judge. We are of the view that the judgment is defective, in that the learned Judge has not followed the provisions under O.41, Rule 31, C.P.C. As rightly pointed out by the learned Senior Counsel for the appellant, it is also incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the court and of the parties on the specific and rival contentions, which arise for decision. One of us (AR.Lakshmanan, J.) sitting single, in Kannammal v. Kuppanna Gounder , (1996)2 MLJ. 550, followinga Division Bench of this Court in Visalakshi Ammal v. Dhanalakshmi Ammal , (1989)2 L.W. 414 and for the reasons stated in the order, has set aside the judgment of the First Additional District Judge, Coimbatore and remitted back the matter to the said court, to dispose of the appeal afresh on merits and in accordance with law and after affording opportunity to both the parties, within three months from the date of receipt of copy of the judgment." A full reading of the above judgment reveals that the above proposition has been arrived at by the Division Bench on a letters patent appeal preferred against the judgment of the single Judge of this Court, on appeal confirming the judgment and decree of the Subordinate Judge, Erode, in a suit and hence this judgment cannot be directly applied to a case arising out of rent control proceedings.
(3.) THE learned counsel would continue to argue that the relationship of the landlord and the tenant has been denied in this case by the tenants under Sec.10 of the Act for eviction of the tenants, that if the relationship of landlord and tenants is denied, issue must be framed to that effect and decided and without deciding the said issue as a preliminary issue, deciding the other issues, is irregular and both the courts below have committed serious errors in not framing the issues and deciding the subject matter accordingly. Resuming the arguments for the learned counsel for the tenants would further contend that the lower courts have not analyse the defence so as to arrive at the conclusion, framing the points for determination; that under Sec.2(9), C.P.C. the term "judgment" means the statement given by the Judge of the grounds of a decree or order; that under Sec.4(1), C.P.C. "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force", and under Sec.4(2), C.P.C. that, "without prejudice to the generality of the proposition contained in Sub-sec.(1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force"; that under Sec.5, C.P.C. speaks of the application of the Code to revenue courts. Further, the learned counsel would cite the Rent Control Rule 28(7) which contemplates how the Rent Controller or the appellate authority shall record the evidence of witnesses, how the documentary evidence shall be considered and how the decision shall be given in accordance with justice, equity and good conscience and would thereby indicate the procedure to be a summary procedure and in the absence of any party summoned to attend, the dispute may be decided ex parte. The learned counsel would cite a judgment reported in Raju v. Mohamadabi, (1993)2 MLJ. 438: (1993)2 L.W. 171 wherein it is held that, "In the absence of any specific provision excluding the application of Sec.5 of the Limitation Act and in view of the provisions contained in Secs.3 and 5 of theLimitation Act, it shall have to be held that the provisions of Sec.5 of the Limitation Act are attracted to an application filed under the Act for setting aside and ex parte order of eviction passed by the Rent Controller. Consequently, it follows that the learned District Judge is not right in holding that the Rent Controller is not justified in applying the provisions of Sec.5 of the Limitation Act." ;