Judgment:
S.S. Subramani, J.
1. The tenant Messrs. Brooke Bond India Limited who lost before both the authorities below, is the revision petitioner.
2. Respondent herein filed the eviction petition for eviction on the ground that the building is required by him for bona fide own use. It is averred in paragraph 3 of the eviction petition that he is the owner of the building. Even though the petitioner (in the eviction petition) owns other buildings, all of them are tenanted. He is running a partnership business along with his other family members Besides that, he is also having money-lending business. For the purpose of the partnership business and also for the money-lending business, he wants the scheduled building. It is said that the petitioner is not having in his possession any other building which is suitable for the said purpose. It is further averred that various demands were made to the tenant, petitioner herein, and they promised to vacate the demised premises provided some time was given. On that assurance, one year time was given. Of course, at that time, they volunteered to pay an increased rent. But even after the expiry of the time granted, the tenant did not vacate. It is further averred in the eviction petition that to preempt the attempt of the landlord to get eviction, tenant has filed a petition before the Rent Controller, as R.C.O.P. No. 490 of 1979, seeking permission to deposit the rent into court. The (rent control) petitioner, therefore, prays that he may be allowed to get possession of the building in question, for the purpose of his own use.
3. In the counter-statement filed by the tenant, petitioner herein, it is said that the claim for eviction on the ground of bona fide own use cannot be granted. According to them, the said demand was made only to pressurise the tenant to increase the rent from time to time. The monthly rent which was Rs. 150 has been increased from time to time, to Rs. 400. It is said that the petition as framed is not maintainable. When the demand is for partnership business and not for his personal business, it cannot be termed as 'bona fide own use'.
4. The Rent Controller, after taking evidence, came to the conclusion that the landlord is entitled to get eviction. But the question of bona fides was not considered. Rent Controller was of the view that in respect of a non-residential building, if the requirement is proved, bona fides are not material. He came to the conclusion that the demand made by the landlord justifies eviction.
5. The matter was taken in appeal before the Appellate Authority. The Appellate Authority also came to the conclusion that since the landlord has no other building of his own even though he is doing business in partnership, he is entitled to get eviction. The appellate authority also came to the conclusion that the claim made is bona fide. It is against the concurrent findings, tenant has come up in revision.
6. The only point that is urged before me at the time of arguments by learned Counsel for the petitioner is that eviction for bona fide use cannot be had for the purpose of a partnership business of which the landlord is a partners. Learned Counsel for the landlord stressed the words 'his business' and 'carrying on business', appearing in the Statute. I do not want to discuss the law regarding the same when the same is concluded by various judgments of this Court, other High Courts and the Supreme Court.
7. When a similar question came for consideration under the Madhya Pradesh Accommodation Control Act (Act 41 of 1961) in D.N. Sanghavi & Sons v. Ambalal Tribhuwan Das : [1974]3SCR55 , their Lordships considered the question as to what is meant by the expression 'his business' and whether it includes 'business of partnership'. Their Lordships emphasised the words 'own' in the phrase' his own occupation', and said that the same should not be discarded as redundant. Thereafter, their Lordships said that the idea behind the legislation is that the requirement should be directly and substantially for his occupation. In paragraph 9 of the judgment, their Lordships have said thus:
On this construction of Clause (f) of Section 12(1), it is necessary for the respondent to prove that the accommodation is needed directly and substantially for his occupation for the purpose of continuing or starting his business.
Thereafter, their Lordships refused to order eviction on the ground that the petitioner therein was only a sleeping partner and that he was not managing the business either solely or with other partners. In that view of the matter, their Lordships said that it cannot be termed as 'his business'. After that, their Lordships distinguished the various citations placed before them on the ground that in most of the cases, the partner was a managing partner or had sufficient interest in the business. One thing that is clear from the above decision is that if the requirement is for the purpose of own use, the landlord should not be a sleeping partner. He must have some voice in the management.
8. A similar question again came for consideration in the decision reported in Shantilal Thakordas and Ors. v. Chimanlal Maganlal Telwala : [1977]1SCR341 . In that case, even though the question of partnership came for consideration, eviction was not ordered on the ground that the partner had died and a new firm came into existence. The question of maintainability for the purpose of partnership firm was not decided therein.
9. A similar case arising under the Tamil Nadu Buildings (Lease and Rent Control) Act came for consideration in the decision reported in Krishnan Nair and Anr. etc. v. Ghouse Bash : [1988]1SCR65 . Their Lordships ordered eviction on the ground that the application is maintainable. In that case, it was found out that the petitioners were not sleeping partners arid that they were active partners. In paragraph 2 of the judgment, their Lordships considered the prior two decisions of the Supreme Court, viz., Shantilal Thakordas and Ors v. Chimanlal Maganlal Telwala : [1977]1SCR341 and D.N. Sanghavi and Sons v. Ambalal Tribhuwan Das : [1974]3SCR55 and held thus:
Our attention was drawn to a decision of this Court in D.N. Sangavi and Sons v. Ambalal Tribhuvan Das : [1974]3SCR55 where the meaning of the expression 'his business' under Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 came up for consideration. The said section was in pari materia with the present section. Therefore this Court held that the meaning of the expression 'his business' under Section 12(1)(f) of the said Act is to be determined by the examination of the object of the Act and setting of the phrase 'his business'. There Dwivedi, J. speaking for the court found that before the partnership, it was stated that the father was to run the shop. Father died during the pendency of the suit and neither of these two passages nor anywhere else in the facts during the pendency had stated that on the terms of the partnership they were entitled to manage the partnership business or even that would also occupy the suit accommodation along with his other partners on obtaining possession from the appellant was not stated that the other partners have agreed to shift the business. The court observed that if the deed of partnership had excluded the son expressly or impliedly from the management of the firm of business and had made him a sleeping partner it could not be held that the accommodation was needed directly and substantially for his occupation by way of his business. The firm is carrying on the business in the premises in respect of which the eviction was asked for the said firm. But here there is no evidence that the sons were sleeping partners. On the contrary, there is evidence that they were in the leather business and had carried on the business previously before shifting to the premises in question. If that is the position, it cannot be accepted that they were sleeping partners. On the contrary, having regard to the number, they were active partners in the business and as such the sons needed the accommodation with others would be for sons' business under Section 10(3)(a)(iii) of the Tamil Nadu Act. We may mention that in the subsequent decision of this Court in Shantilal Thamordas v. Chimalal Magantlal : [1977]1SCR341 , this question did not directly arise but here this Court noted that some of the High Courts have taken the view that occupation by partner who was a member of the family would be the occupation of the landlord. This Court felt that they should not express any opinion in that regard, but doubt was expressed as to whether the requirement of the premises by the landlord for the occupation of the partnership firm in which he was a partner would tantamount to the occupation by landlord. It appears that the attention of this Court was not drawn to the earlier decision referred to hereinbefore. In any event, the court had no occasion to express any opinion where the sons are active partners in a partnership firm whether such business carried on by the sons would not come within the provisions of Section 10(3)(a)(iii) of the Act.
10. Bhanwar Lal v. T.K.A. Abdul Kareem through N.K. Mohd. Mustafa : AIR1992SC2166 , was also a decision rendered in a case arising out of the Tamil Nadu Buildings (Lease and Rent Control) Act. An argument was taken in that case that the landlord is only a sleeping partner, not entitled to get eviction.
Even though that new point was raised before the Supreme Court, their Lordships considered the said point in paragraph 5 of the judgment, and considering the partnership deed, their Lordships held that since the landlord is not a sleeping partner, he is entitled to get an order of eviction. Paragraph 5 of the said judgment reads thus:
Even if we assume for the purposes of this judgment that an argument on a point of law can be canvassed for the first time in this Court provided the factual foundation for it exists on the record, we cannot entertain this argument on a point of law for the factual foundation for it does not exist on the record. The partnership deed, while it calls the landlord the financing partner and the other partner the managing partner and invests the management in the hands of the managing partner, also contains a clause which states, 'such partner shall attend diligently to the business of the partnership and carry on the same for the greatest advantage of the partners'. Having regard to this clause, we find it difficult to hold that it is established that the landlord is a mere sleeping partner. The foundation for the argument that has not been advanced ought to have been laid in the written statement of the tenant so that evidence could have been laid upon the basis of which the courts could have determined whether or not the landlord was a sleeping partner.
11. Now I come to a decision of our High Court. In M. Aishath Najiya v. Lalchand Kewalram and Ors. : (1989)2MLJ28 , a similar question came for consideration. There also, a landlord who was a partner in a business wanted to get eviction for the purpose of that business. Following the decision reported in Krishnan Nair v. Ghouse Basha : [1988]1SCR65 , in paragraph 8 of the judgment, S. Mohan, O.C.J, as he then was, has said thus:
Thus, on a careful analysis of the ratio laid down in the above quoted decisions and in view of the latest decision of the Supreme Court reported in Krishnan Nair v. Ghouse Basha : [1988]1SCR65 , we hold that a petition for eviction can be filed under Section 10(3)(a)(iii) of the Act, to accommodate a partnership firm in which the members of landlord's family are partners along with strangers. But, however, in view of the observations of the Supreme Court in the above quoted case, we wish to make it clear that the members of the landlord's family in the partnership firm may be directly and substantially involved in the partnership business considering the extent of their interest in the business, i.e., the shares they have in the partnership business and/or the part they play i.e., as active partners but not sleeping partners.
12. The Kerala High Court had occasion to consider a similar question in the decision reported in Govinda Pai v. Sarvothama Rao 1981 K.L.T. 330, wherein it was held thus:
The idea of exclusive occupation is not necessarily indicated by the term 'for his own occupation' in Section 11(3). Even when a person carries on business as a partner of a firm he occupies the business premises along with his partners. The one exception to this could be a case where he does not have any hand in the conduct of the business, though he is a partner. A dormant or sleeping partner does not actively associate himself with the conduct of the business though he may contribute capital and share in the profits or losses. Such a person may not be occupying the premises where the business is carried on by the firm. But in other cases where partners are actively associated with and are concerned in the conduct of the business they occupy the business premises for the purpose of the firm's business and such occupation is of all those who carry on such business. Therefore within the meaning of the term 'for his own occupation', occupation by a partner of a firm other than a dormant or sleeping partner would be comprehended. To give a narrow meaning to the term his own occupation' under Sub-section (3) of Section 11 would not promote the object of the Act.
13. The same was followed in the decision reported in Jameela v. Moosa 1981 K.L.T. 791. In view of the settled position of law, it is clear that if the petitioner is an active partner and is having control over the business, eviction petition filed by him is maintainable. In the said decision, it was held as follows:
'Occupation' for the purposes of Sub-sections (3) and (4) of Section 11 need not necessarily in all cases be exclusive occupation, sole occupation or even personal occupation. The proper approach would be not to generalise and lay down theories in the abstract, but to tackle the facts of each case and see how they operate. If the question arises under Section 11(3), the attempt should be to find out whether the partnership set up by the landlord is one where he could really occupy the premises himself; and if it arises under Section 11(4)(i), the attempt again should be to find out whether the tenant's partnership is one where he effectively continues to occupy the premises, notwithstanding the formation of the partnership. In construing a given arrangement, the general purpose of Rent Control legislation can be kept in view and subterfuges, if resorted to, could be exposed. The mistake made by the District Court in the present case lies in assuming that occupation by a firm will always be different from occupation by a landlord who is a member thereof. It thought that eviction was 'sought for on behalf of a registered partnership', overlooking the circumstance that the landlords had applied for eviction on their own behalf, though the intention was that a building when it fell vacant could be occupied by one of them for the business she was carrying on along with other partners.
In the instant case, when P.W. was examined, in cross-examination, a question was put to him as to who is the Managing Partner. P.W. 1 said that there is no specific post as Managing Partner. There are only three partners, and all of them have got equal responsibility and equal duties. In view of the specific answer given by P.W. 1, it follows that the petitioner is not a sleeping partner.
14. There is an allegation in the petition that the petitioner is running a partnership business along with other members of his family. The said averment has not been denied in the counter. The answer is that partnership business cannot be termed as 'his business' and, therefore, the eviction petition is not maintainable. The view of the settled legal position arid also taking into consideration the facts of this case, I hold that the eviction petition is maintainable.
15. Learned Counsel for the petitioner submitted that the Rent Controller has not considered the bona fide nature of the claim and recorded a finding thereon. According to him, even if it is a non-residential building, a finding has to be recorded whether the claim is bona fide or not. I agree with the said submission. But there is a specific finding by the appellate authority that the claim of the landlord is bona fide Even hough learned Counsel for the petitioner (tenant) wanted the matter to be remitted for rendering a finding regarding the same on the ground that the appellate authority has not discussed the same, I cannot accede to the said request. This Court is competent to record a finding on the available evidence.
16. The appellate authority has entered a factual finding that the petition for eviction has been filed in good faith. The circumstances pleaded in the petition also show that there is no ground to impute bad faith in the landlord. The landlord is doing business in partnership as well as his own business in money-lending. Even though they are in possession of other buildings, all of them have been tenanted. That fact is also not disputed. The landlord says that he wants a suitable building for his business. The suitability of the building is also not a matter in dispute. The only contention that was put forward by the tenant was that there was a demand for increased rent. The same has also been explained in the petition. For years together, the landlord was demanding the tenant to vacate the premises and they agreed to vacate the same on getting a suitable accommodation. Increased rent was volunteered by the tenant, and the same was accepted by the landlord. Even otherwise taking into consideration the inflation, the original rent that the tenant was paying will not be sufficient and even if there is a demand or payment of enhanced rent, that will not show that the demand for eviction is lacking in good faith. No other circumstance has been made out by the tenant to show otherwise.
17. In the result, the civil revision petition is dismissed, but, however, without any order as to costs.