S. Jesudoss Vs. A.P. Ramachandran - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]orderg. rajasuria, j.1. inveighing the order and decree dated 09.11.2009 passed by the learned viii judge, court of small causes, chennai in rca no. 218 of 2009 confirming the order and decree dated 30.04.2009 passed by the learned xiii judge, court of small causes, chennai in rcop no. 1411 of 2008, this civil revision petition is focussed.2. heard both sides.3. broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:a. the respondent/landlord filed rcop for evicting the revision petitioner/tenant on the ground of owner's occupation so as to provide accommodation to his daughter's business.b. before the rent controller, the landlord, examined himself as p.w1 along with his daughter pw2 and marked exs.p1 to p7. the tenant examined himself as rw1 and marked exhibits r1 to r3. ultimately, after hearing both sides, the rent controller ordered eviction.c. being aggrieved by and dissatisfied with the same, appeal was filed by the tenant. but the appellate court dismissed the appeal confirming the order of eviction passed by the learned rent controller.d. being aggrieved by the orders of both the courts below, this revision is focussed on various grounds, the quintessence of the same would run thus:(i) both the courts below failed to take into account that the evidence adduced before the court was quite contrary to the pleadings in the petition. in the petition, it is found stated as though the daughter of the landlord is in need of the premises for doing her business. whereas her evidence would speak to the effect that only her husband is doing business and virtually he is in need of additional accommodation. as such, the evidence adduced before the rent controller is quite antithetical to the averments/pleadings in the petition.(ii) without considering all these factors, the rent controller simply ordered eviction and the appellate authority also without going into the details confirmed the order of the rent controller, warranting interference by the revisional court.4. the learned counsel for the revision petitioner by reiterating the grounds of revision and also by drawing the attention of this court to the evidentiary aspect involved in the matter would develop his argument thus:(i) any amount of evidence without the backing of the pleadings has to be eschewed.(ii) pw2 herself had candidly and categorically admitted before the court in her deposition that her husband alone was doing business and she was only assisting him. but the averments in the petition would be to the effect as though the landlord's daughter viz., pw2 was doing business and she was in need of accommodation.(iii) the husband of pw2 is employed and his employer is doing business in designing creative architecture and in such a case, it cannot be countenanced that pw2's husband is entitled to do such rival business.(iv) there is total confusion in the evidence adduced on the side of the respondent/landlord and both the courts below failed to take note of the same.(v) the section invoked by the landlord is obviously erroneous as in the petition section 10(3)a(i) is found cited, whereas the proper section is only section 10(3)a (iii) of the tamil nadu building lease and rent control act, 1960.accordingly, he prays for setting aside the orders of both the courts below.5. whereas by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner/tenant, the learned counsel for the respondent/landlord would set forth and put forth his arguments, the warp and woof of the same would run thus:a) mere wrong quoting of the provision of law would not be fatal to any petition and in that connection, he also cited the decision of this court reported in 2007 (2) ctc 787 (suresh kumar kothari v. dr. t.ramachandran and anr.).b) even though pw2 in her deposition stated that her husband was doing business in designing creative architecture and she was also doing that business along with her husband, it would not disentitle pw2's father, the landlord to press for evicting the tenant on the ground of additional accommodation required for his daughter - pw2, because, even if pw2 happened to be a partner in doing business along with a third party, certainly that also is within the ambit of 'personal occupation' as contemplated under the aforesaid provision of law and in that connection, he would cite the decision of the hon'ble apex court reported in : (1987) 4 scc 404 (krishnan nair and ors. v. ghouse basha).c) the requirement of the law is that there need not be any actual business being carried on by the landlord or by the members of the landlord for seeking eviction of a tenant on the ground of personal occupation. it is sufficient, if there is genuine intention on the part of the landlord or his family members to carry on business in the premises concerned.accordingly, he prayed for the dismissal of the revision petition.6. the point for consideration is as to whether there is any illegality or infirmity in the orders passed by both the courts below?7. at the outset, i would like to agree with the submission made by the learned counsel for the respondent/landlord that mere wrong quoting of the provision of law is not fatal to the case of the petitioner. the decision cited by the learned counsel for the respondent/landlord would support his view. in fact, from the revision petitioner/tenant's side, i could come across no contrary citation. hence, in such a case, even though the petitioner cited section 10(3)a(i) instead of section 10(3)a (iii) of the tamil nadu building lease and rent control act, 1960 , the petition cannot be held to be invalid or illegal. accordingly, this point is decided in favour of the landlord.8. the appellate forum extracted the relevant portion of the deposition and discussed at length the pros and cons of the matter. the contention of the learned counsel for the revision petitioner/tenant by making reference to the deposition of pw2 that she was only assisting her husband in his business, in my opinion, is neither here nor there and that too in the wake of the hon'ble apex court's decision cited supra on the side of the landlord. there is nothing to point out that if the landlord or the landlord's family member is doing any business in tantum with some other person or with the assistance of some other organisation, they are disentitled from invoking the said provision for evicting the tenant on the ground of personal occupation. in other words, simply because, the landlord or the family member of the landlord is doing business in a partnership firm with some third party, they are not prevented from getting the tenant evicted on the ground of personal occupation. here, no doubt, the averments in the petition do not go hand in hand with the evidence adduced, as correctly pointed out by the learned counsel for the revision petitioner/tenant.9. i recollect and call up the maxim secundum allegata et probata - according to what is alleged and proved; according to the allegations and proofs.10. here the position is somewhat different. the evidence adduced is not quite antithetical or anathema to the averments as found set out in the rcop petition. but there are some additions in the evidence that not only the daughter of the landlord but also the son-in-law of the landlord, is doing the business referred to supra. simply because, as correctly pointed out by the learned counsel for the revision petitioner/tenant, pw2 is doing business with her husband, the claim of the respondent/landlord for personal occupation should not be rejected.11. the learned counsel for the revision petitioner/tenant would submit that pw2's husband is legally not entitled to do similar business with that of his employer and that the court cannot consider the claim of the respondent/landlord for accommodating such a person to have the occupation of the tenanted premises after evicting the tenant from it.12. i would like to recollect and call up the following maxims:(i) ex turpi causa non oritur actio - (out of a base (illegal or immoral) consideration, an action does (can) not arise.(ii) ex dolo malo non aritur actio - (out of fraud no action arises; fraud never gives a right of action. no court will lends its aid to a man who founds his cause of action upon an immoral or illegal act.but here, it is for the employer to take action as against pw2's husband for doing rival business and not for the tenant/the revision petitioner herein to invoke those points and deprive the respondent/landlord of getting the tenant evicted from the premises on the ground of personal occupation. as such, i could see no merit in the revision petition.13. i also recollect the well settled proposition of law that the revisional court ultimately should not assume the role of the first appellate court and scan the evidence afresh. here the first appellate court discussed threadbare the oral and documentary evidence and arrived at a conclusion. i could see apparently no illegality or infirmity in the discussion made by the appellate court, which should be taken as the last court of facts.14. the law point, in my opinion, to be considered in this revision is only as to whether the landlord can seek eviction of the tenant from the premises on the ground of personal occupation in view of the landlord's daughter and son-in-law, who are doing business jointly are in need of accommodation?15. my answer to this point, in view of my discussion supra is that such a measure is permissible. as contented by the learned counsel for the revision petitioner, if at all the daughter of the landlord exclusively is in need of such a premises then only eviction could be ordered, cannot be countenanced and even in a case where the landlord's daughter and her husband are in need of such premises, eviction could be ordered at the instance of the landlord.16. as such, this law point is decided in favour of the respondent/landlord and as against the revision petitioner/tenant.17. at this juncture, the learned counsel for the revision petitioner/tenant would make an extempore submission to the effect that a year's time may be granted for eviction and the learned counsel for the landlord would submit that already the tenant is in arrears of four month rent.18. i am of the considered view that six months time could be granted for eviction, so to say, till the end of december 2010, i.e. 31.12.2010. accordingly, the following order is passed:(i) the tenant shall vacate and hand over vacant possession of the suit property to the respondent/landlord within 31.12.2010 and there shall not be any arrears of rent.(ii) the arrears of rent shall be payable within a month from today, i.e on or before 20.07.2010 and if there is any default, it is open for the respondent/landlord to file e.p even before the time stipulated for vacating the premises.(iii) the learned counsel for the revision petitioner shall file an affidavit of undertaking to vacate the premises subject to the above condition within one week.19. the learned counsel for the tenant also would submit that the landlord disconnected the amenity, viz., electricity supply for which the learned counsel for the landlord would submit that the tenant is enjoying the electricity supply.20. i would like to reiterate that no landlord is entitled to disconnect the amenities.21. with the above direction, this revision is dismissed. no costs. consequently, the miscellaneous petitions are closed.

Judgment:
ORDER

G. Rajasuria, J.

1. Inveighing the order and decree dated 09.11.2009 passed by the learned VIII Judge, Court of Small Causes, Chennai in RCA No. 218 of 2009 confirming the order and decree dated 30.04.2009 passed by the learned XIII Judge, Court of Small Causes, Chennai in RCOP No. 1411 of 2008, this civil revision petition is focussed.

2. Heard both sides.

3. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:

a. The respondent/landlord filed RCOP for evicting the revision petitioner/tenant on the ground of owner's occupation so as to provide accommodation to his daughter's business.

b. Before the Rent Controller, the landlord, examined himself as P.W1 along with his daughter PW2 and marked Exs.P1 to P7. The tenant examined himself as RW1 and marked exhibits R1 to R3. Ultimately, after hearing both sides, the Rent Controller ordered eviction.

c. Being aggrieved by and dissatisfied with the same, appeal was filed by the tenant. But the Appellate Court dismissed the appeal confirming the order of eviction passed by the learned Rent Controller.

d. Being aggrieved by the orders of both the courts below, this revision is focussed on various grounds, the quintessence of the same would run thus:

(i) Both the courts below failed to take into account that the evidence adduced before the court was quite contrary to the pleadings in the petition. In the petition, it is found stated as though the daughter of the landlord is in need of the premises for doing her business. Whereas her evidence would speak to the effect that only her husband is doing business and virtually he is in need of additional accommodation. As such, the evidence adduced before the Rent Controller is quite antithetical to the averments/pleadings in the petition.

(ii) Without considering all these factors, the Rent Controller simply ordered eviction and the Appellate Authority also without going into the details confirmed the order of the Rent Controller, warranting interference by the revisional court.

4. The learned Counsel for the revision petitioner by reiterating the grounds of revision and also by drawing the attention of this Court to the evidentiary aspect involved in the matter would develop his argument thus:

(i) Any amount of evidence without the backing of the pleadings has to be eschewed.

(ii) PW2 herself had candidly and categorically admitted before the court in her deposition that her husband alone was doing business and she was only assisting him. But the averments in the petition would be to the effect as though the landlord's daughter viz., PW2 was doing business and she was in need of accommodation.

(iii) The husband of PW2 is employed and his employer is doing business in designing creative architecture and in such a case, it cannot be countenanced that PW2's husband is entitled to do such rival business.

(iv) There is total confusion in the evidence adduced on the side of the respondent/landlord and both the courts below failed to take note of the same.

(v) The section invoked by the landlord is obviously erroneous as in the petition Section 10(3)a(i) is found cited, whereas the proper section is only Section 10(3)a (iii) of the Tamil Nadu Building Lease and Rent Control Act, 1960.

Accordingly, he prays for setting aside the orders of both the courts below.

5. Whereas by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner/tenant, the learned Counsel for the respondent/landlord would set forth and put forth his arguments, the warp and woof of the same would run thus:

a) Mere wrong quoting of the provision of law would not be fatal to any petition and in that connection, he also cited the decision of this Court reported in 2007 (2) CTC 787 (Suresh Kumar Kothari v. Dr. T.Ramachandran and Anr.).

b) Even though PW2 in her deposition stated that her husband was doing business in designing creative architecture and she was also doing that business along with her husband, it would not disentitle PW2's father, the landlord to press for evicting the tenant on the ground of additional accommodation required for his daughter - PW2, because, even if PW2 happened to be a partner in doing business along with a third party, certainly that also is within the ambit of 'personal occupation' as contemplated under the aforesaid provision of law and in that connection, he would cite the decision of the Hon'ble Apex Court reported in : (1987) 4 SCC 404 (Krishnan Nair and Ors. v. Ghouse Basha).

c) The requirement of the law is that there need not be any actual business being carried on by the landlord or by the members of the landlord for seeking eviction of a tenant on the ground of personal occupation. It is sufficient, if there is genuine intention on the part of the landlord or his family members to carry on business in the premises concerned.

Accordingly, he prayed for the dismissal of the revision petition.

6. The point for consideration is as to whether there is any illegality or infirmity in the orders passed by both the courts below?

7. At the outset, I would like to agree with the submission made by the learned Counsel for the respondent/landlord that mere wrong quoting of the provision of law is not fatal to the case of the petitioner. The decision cited by the learned Counsel for the respondent/landlord would support his view. In fact, from the revision petitioner/tenant's side, I could come across no contrary citation. Hence, in such a case, even though the petitioner cited Section 10(3)a(i) instead of Section 10(3)a (iii) of the Tamil Nadu Building Lease and Rent Control Act, 1960 , the petition cannot be held to be invalid or illegal. Accordingly, this point is decided in favour of the landlord.

8. The appellate forum extracted the relevant portion of the deposition and discussed at length the pros and cons of the matter. The contention of the learned Counsel for the revision petitioner/tenant by making reference to the deposition of PW2 that she was only assisting her husband in his business, in my opinion, is neither here nor there and that too in the wake of the Hon'ble Apex Court's decision cited supra on the side of the landlord. There is nothing to point out that if the landlord or the landlord's family member is doing any business in tantum with some other person or with the assistance of some other organisation, they are disentitled from invoking the said provision for evicting the tenant on the ground of personal occupation. In other words, simply because, the landlord or the family member of the landlord is doing business in a partnership firm with some third party, they are not prevented from getting the tenant evicted on the ground of personal occupation. Here, no doubt, the averments in the petition do not go hand in hand with the evidence adduced, as correctly pointed out by the learned Counsel for the revision petitioner/tenant.

9. I recollect and call up the maxim Secundum allegata et probata - according to what is alleged and proved; according to the allegations and proofs.

10. Here the position is somewhat different. The evidence adduced is not quite antithetical or anathema to the averments as found set out in the RCOP petition. But there are some additions in the evidence that not only the daughter of the landlord but also the son-in-law of the landlord, is doing the business referred to supra. Simply because, as correctly pointed out by the learned Counsel for the revision petitioner/tenant, PW2 is doing business with her husband, the claim of the respondent/landlord for personal occupation should not be rejected.

11. The learned Counsel for the revision petitioner/tenant would submit that PW2's husband is legally not entitled to do similar business with that of his employer and that the court cannot consider the claim of the respondent/landlord for accommodating such a person to have the occupation of the tenanted premises after evicting the tenant from it.

12. I would like to recollect and call up the following maxims:

(i) Ex turpi causa non oritur actio - (Out of a base (illegal or immoral) consideration, an action does (can) not arise.

(ii) Ex dolo malo non aritur actio - (Out of fraud no action arises; fraud never gives a right of action. No court will lends its aid to a man who founds his cause of action upon an immoral or illegal act.

But here, it is for the employer to take action as against PW2's husband for doing rival business and not for the tenant/the revision petitioner herein to invoke those points and deprive the respondent/landlord of getting the tenant evicted from the premises on the ground of personal occupation. As such, I could see no merit in the revision petition.

13. I also recollect the well settled proposition of law that the revisional court ultimately should not assume the role of the first appellate court and scan the evidence afresh. Here the first appellate court discussed threadbare the oral and documentary evidence and arrived at a conclusion. I could see apparently no illegality or infirmity in the discussion made by the appellate Court, which should be taken as the last court of facts.

14. The law point, in my opinion, to be considered in this revision is only as to whether the landlord can seek eviction of the tenant from the premises on the ground of personal occupation in view of the landlord's daughter and son-in-law, who are doing business jointly are in need of accommodation?

15. My answer to this point, in view of my discussion supra is that such a measure is permissible. As contented by the learned Counsel for the revision petitioner, if at all the daughter of the landlord exclusively is in need of such a premises then only eviction could be ordered, cannot be countenanced and even in a case where the landlord's daughter and her husband are in need of such premises, eviction could be ordered at the instance of the landlord.

16. As such, this law point is decided in favour of the respondent/landlord and as against the revision petitioner/tenant.

17. At this juncture, the learned Counsel for the revision petitioner/tenant would make an extempore submission to the effect that a year's time may be granted for eviction and the learned Counsel for the landlord would submit that already the tenant is in arrears of four month rent.

18. I am of the considered view that six months time could be granted for eviction, so to say, till the end of December 2010, i.e. 31.12.2010. Accordingly, the following order is passed:

(i) The tenant shall vacate and hand over vacant possession of the suit property to the respondent/landlord within 31.12.2010 and there shall not be any arrears of rent.

(ii) The arrears of rent shall be payable within a month from today, i.e on or before 20.07.2010 and if there is any default, it is open for the respondent/landlord to file E.P even before the time stipulated for vacating the premises.

(iii) The learned Counsel for the revision petitioner shall file an affidavit of undertaking to vacate the premises subject to the above condition within one week.

19. The learned Counsel for the tenant also would submit that the landlord disconnected the amenity, viz., electricity supply for which the learned Counsel for the landlord would submit that the tenant is enjoying the electricity supply.

20. I would like to reiterate that no landlord is entitled to disconnect the amenities.

21. With the above direction, this revision is dismissed. No costs. Consequently, the miscellaneous petitions are closed.