Judgment:
ORDER
S.S. Subramani, J.
1. This revision petition is filed by the plaintiff against the judgment in C.M.A. No. 3 of 1992, on the file of the Subordinate Judge, Karur.
2. The relevant facts which are necessary for the disposal of this revision petition may be summarised as follows:
Plaintiff is the owner of the entire plaint schedule property. Apart from the subject matter of the suit, some more area was in the possession of the defendant, on the basis of a lease of the vacant site. Petitioner purchased the entire property and filed a suit O.S. No. 459 of 1973, for eviction of the respondent. A compromise was entered in that case whereunder a portion was surrendered to the plaintiff wherein he has now put up a construction and is residing therein.
3. In so far as the plaint schedule property is concerned, defendant claimed the benefit of Section 9 of the City Tenants Protection Act. It is his case that on the basis of the lease of the vacant site, taken for commercial purpose, he has put up superstructures therein and entitled to purchase the area from the landlord. He, therefore, filed O. No. 40 of 1975. The trial Court as well as lower appellate Court dismissed his application and declared that the respondent is not entitled to the benefits of the Act. Later, in the revision filed as C.R.P. No. 1870 of 1982, this Court declared that the respondent is entitled to the benefits of Section 9 of the City Tenants Protection Act and remitted the matter to consider the minimum area required for the defendant to continue his business and also directed the Court to assess the area that will be necessary for the convenient enjoyment of the defendant. Subsequent to the remand by this Court, defendant field an application as I.A. No. 102 of 1983, under Order 26, Rule 9 read with Section 151, C.P.C. to appoint a Commissioner for the purpose mentioned in the Order of remand. A counter was also filed by the plaintiff who was the respondent in the said I.A.
4. The trial Court appointed a Commissioner who visited the property and submitted Reports and Plans. Thereafter, the parties were also examined, and finally, the trial Court, by Order dated 24.4.1991, decided the minimum area necessary for the defendant to conduct his business. It held that a total plinth area of 2999 sq. ft. will be sufficient for the said purpose. The Commissioner, in his report, only found that an area of 3500 sq. ft. is sufficient for the business. Defendant preferred C.M.A. No. 3 of 1992, on the file of the lower appellate Court. By the impugned judgment, the lower appellate Court found that the Order of the trial Court is not correct and found that an area of 6702 sq. ft. of land is necessary for the convenient enjoyment of the defendant, for doing his business, and the respondent (defendant) was permitted to purchase the same. It is that Order that is under challenge in this revision.
5. Learned Counsel, for the respondent at the time when the revision was taken up for arguments, submitted that the revision being one under Section 115, C.P.C, unless it is shown that the Order of the lower Appellate Court is illegal, irregular or improper, this Court should not interfere. The contention of the learned Counsel for the respondent is that when the lower appellate Court has entered a finding as to the minimum area necessary for the convenient enjoyment of the defendant, that is based on evidence, and it is only an appreciation of facts. This, according to learned Counsel, will not enable this Court to interfere in revision under Section 115, C.P.C. The argument is that unless this Court finds that the lower appellate Court has exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity, this Court may not interfere with the Order of the Court below. It was further argued that unless the petitioner shows that the Order has caused irreparable loss or injury, the Order should be allowed to stand.
6. As against this contention, learned Counsel for petitioner submitted that there is no bar from exercising the powers under Section 115, C.P.C. According to him, the lower appellate Court has gone against the law declared by the Apex Court, and this amounts to an exercise of jurisdiction not vested in it, or at any rate, the exercise of such jurisdiction is illegal. He also contended that if the respondent is allowed to purchase something which he is not legally entitled to, that will amount to irreparable injury so far as the plaintiff is concerned.
7. I will take into consideration these rival contention in the later portion of this Order.
8. Before going to the law and powers of this Court under Section 15, C.P.C., let us see what the Commissioner has said, and what both the Courts below have taken into consideration.
9. The entire area which is scheduled to the plaint is surrounded by two roads, on the west and north. On the northern side, is situated Chinna Vaikkal North Street, and on the western side is Kamarajar Road. There is a compound wall on the southern extremity of the entire property. On the eastern side, plaintiff has got his residential building. In the plaint schedule property, there are three sheds, and the Commissioner has identified all the three sheds. Shed No. 1 is situated on the western side, facing Kamarajar Road. The plinth area of that shed is 1266 sq. ft. The same is marked by the Commissioner as A A1 O A2 PQ A3 Plot. Shed No. 3 is situated on the northeastern side of Shed No. 1. The same is demarcated by the Commissioner as B1 BCF B2 Plot. It is having a plinth area of 960 sq. ft. In between Shed No. 1 and Shed No. 3, the Commissioner has also noted a saw-pit having a plinth area of 36 sq. ft. Shed No. 2 i.e., A2 RMP Plot demarcated as having a plinth area of 2759 sq. ft. Touching RM Line on the eastern side, a portion of Shed No. 2 has fallen to the ground. That area has been separately demarcated as 484 sq. ft. In the plan, it is demarcated as RHJLMN Plot.
10. Even during trial, plaintiff had a case that the defendant is not doing any business, and the sheds are kept idle. As against the said contention, defendant contended that he is doing business and the area is necessary for his convenient enjoyment. But, at the same time, he has admitted that because of the pendency of the suit, he has not given that much attention to the business. When he was examined, he admitted that the business as on that date was very little. He also admitted that for the last three or four years before he deposed, he was not paying any sales-tax. Even though he said that he has got licence, the same was not filed in Court.
11. When the Commissioner visited the property, he also did not find any business activity. In this connection, it may be noted that the case of the defendant is that he is doing timber business in the property. What the Commissioner found was, that in Shed No. 1, which is facing on the western side, some persons were playing Carrom, and it was admitted by defendant himself that his children were making use of that shed occasionally as a playground. In the office-room which is situated on the south-western portion of Shed No. 1, except for a telephone, no furniture was found. Close to the same, there was another building where some records were kept. There was also a Godrej Almirah within that building. While describing Shed No. 3, the Commissioner said that in the saw-pit, there was an old basket in which old shoes had been kept, and in that area, 75 folding chairs were kept. He also found that close to the above pit, about 400 tiles were stored. The tiles were dusty and some of them were broken. The condition of the roof was dilapidated, and it was further found that it might fall at any time. In so far as Shed No. 2 was concerned, he found a steel trolley, on the northern wing. On the eastern extremity of the shed, the roof had collapsed, and it was lying to the floor. In the middle and southern wing of Shed No. 2 also, the Commissioner found some scrap materials. Most of them were bamboos. He said that the entire central cable roof was also in a dilapidated condition. The cable roof was not arranged properly as is normally done in the course of business by timber merchants. What he found was that the plant was stored without any arrangement. To use the language of the Commissioner, 'They were in pell-mell way'. The Commissioner also visited other timber shops in the vicinity, and saw as to how business was being carried on there. The Commissioner could find that even with a far less area, timber business could be done in a flourishing manner. In para 20 of the Report, the Commissioner has said that one Velan & Co. is having business in 5000 sq. ft. and Kerala Timber Mart is having business in 1800 sq. ft., etc. Taking into consideration the business of the defendant which is on a lower side, so far as the respondent is concerned, the Commissioner found that 3,500 sq. ft. will be sufficient for his business.
12. As said earlier, the trial Court took into consideration the entire case, and found that an area of 2999 sq. ft. will be sufficient for the requirement of the respondent.
13. When the matter was taken on appeal, the lower appellate Court was of the view that the defendant has put up construction in a major portion of the property and, therefore, a presumption can be arrived at that a large area is necessary for his requirement. Only on that basis, it came to the conclusion that an area of 6702 sq. ft. will be necessary for the business of the respondent.
14. Under Section 9 of the Tamil Nadu City Tenants Protection Act, the Court is bound to consider the minimum area necessary for the convenient enjoyment of the defendant for the purpose of his business. In this connection, the decision of the Supreme Court reported in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt : AIR1963SC864 is of some importance. In that case, their Lordships said that the right of a' tenant to apply to the court for an order directing the landlord to sell the land to him for a price to be fixed by it, under Sec.9 of the Principal Act is not a right to property. Their Lordships said that the law in India does not recognize equitable estates. Their Lordships further went on to say that No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right; that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land. If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a non-proprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant.
15. The Supreme Court had also occasion to consider in P. Ananthakrishnan Nair v. G. Radhakrishnan : [1987]2SCR734 how the right under Section 9 of the said Act is to be exercised, and what is the Court's duty, while demarcating the area for purchase. Their lordships said thus:
Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute. Section 9 itself imposes restriction on the tenant's right to secure conveyance of only such portion of the holding as would be necessary for his convenient enjoyment....
After extracting the relevant portion of the decision reported in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt : AIR1963SC864 which I have already extracted above, their Lordships further went on to say thus:.The tenant's right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature. Under the common law a tenant is liable to eviction and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act. The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease. Section 9 confers an additional statutory right on a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the property. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature.
(Italics supplied)
16. Their Lordships further held as to what is the area that the tenant could purchase, and what are the considerations for the same. In paragraph 11 of the judgment, it was held thus:
Whenever an application is made by a tenant before the court for issuance of direction to the landlord for the sale of the whole or part of the land to him, the court is under a mandatory duty to determine the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant. This determination can obviously be made only after an enquiry is held by the Court having regard to the area of the demised land and the extent of superstructure standing thereon, and the tenant's need for the land for the beneficial enjoyment of the superstructure which he may have constructed thereon. The enquiry presupposes that the tenant making the application has been in the occupation of the land and the superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demise land, so that they may continue to occupy the same for the purposes of their residence or business. Section 9(1)(b) ordains the court to first decide the minimum extent of the land which may be necessary for the convenient enjoyment by the tenant, it therefore contemplates that the tenant requires the land for the convenient enjoyment of the property. If the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on any business, the question of convenient enjoyment of the land by him could not arise. The Court has to consider the need of the tenant and if it finds that the tenant does not require any part of the land, it may reject the application and direct eviction of the tenant. In that event the landlord has to pay compensation to the tenant for the superstructure.
(Italics supplied)
17. From the above decisions, it is clear that only such area as is necessary for the tenant's business, he can compel the plaintiff to sell to him. Merely because the entire area is covered by superstructure, that will not enable him to purchase that area, if the business is not carried on therein. If it is not used, the mere existence of a superstructure will not enable him to purchase the property. It is on the basis of the principle enunicated in paragraph 11 of the Supreme Court, we have to consider whether the decision of the lower appellate Court is liable to be interfered with.
18. The trial Court has taken into consideration the evidence of the respondent. He himself has admitted that even before the suit, he was not bestowing his attention to improve his business. At least three years before he deposed, he was not paying any sales-tax. That means, according to his own showing, either he is not doing any business or the business turnover is very little, and he is not doing 'real business' as understood in common parlance. We may also note that even though a saw-pit is there, the Commissioner found only a basket there in which shoes had been kept, and in another portion, 75 folding chairs were kept. That means, the area though earmarked as saw-pit, is also not used for anything. The Commissioner further found that even the main shed was used by defendant's children as a playground. When the Commissioner visited the property, he found defendant's children playing carrom in that shed. It is true that on the south western corner of Shed No. 1, a telephone is placed. Except the telephone, there was nothing else. The defendant could have proved that he was using the telephone for his business activities. Whether the defendant was atleast paying rent for the telephone is not in evidence. In another portion, the Commissioner found certain account books. From the way in which the articles had been kept, an inference was irresistible that even though the defendant was doing business earlier, at the time when he was exercising the option, and when he was being examined as P.W-1, in fact he was not doing any business or the sheds were not being used. Even in respect of Shed No. 2, a major portion of the same has fallen down. In the remaining portion of Shed No. 2, the middle portion of the roof has already collapsed. The wooden articles were also not neatly arranged as is normally done in timber shops. According to the Commissioner, 'they were in a pell-mell way.' No accounts were filed by defendant to show that he was doing timber business. As held by the Supreme Court, evidence should be let in regarding improvement of the business, and how the area is being used, etc. The lower appellate Court has simply said that it is not for the Commissioner to decide, what the Court has to decide. I agree with that observation of the lower appellate Court. But the lower appellate Court did not consider whether the defendant was actually doing business, making use of these sheds. The evidence of the defendant as P.W-1 itself is sufficient to hold that the area which is now allowed to be purchased is far in excess of his requirement.
19. As held by the Supreme Court in the two decisions referred to supra, it is an equitable right that is given to the defendant. He wants to enforce that equitable right through the machinery of the court. Naturally, he must also come to court with clean hands. It is a discretion exercised in his favour. While exercising the discretion, a duty is cast on the defendant to show that without all the sheds, he cannot be the business. Regarding the same, evidence is completely lacking.
20. Learned Counsel for the respondent submitted that it is because of the litigation, he could not do any business. We must understand that even in the year 1982, defendant was allowed to purchase the property. He has no case that from 1982 till date he was prevented from doing any business through any source. No body prevented him from doing business because the litigation is pending. The suit itself is one for eviction. It follows that till he is evicted, he is entitled to be in possession, for the purpose of doing business. When he says that he has not improved his business, or he had not paid much attention to the business, an inference can be drawn that the space occupied by him is not necessary for his requirement. The lower appellate Court failed to approach the point in this way.
21. Learned Counsel for the respondent further submitted that the further needs of the tenant and also the hope of the defendant that he will prosper in the business after the litigation comes to an end also must be taken into consideration. There is no evidence to show that he intends to invest huge sums in the business. When the question is regarding an equitable right, and the defendant is not having any right in the property, the Court cannot think of giving him some right on the assumption that his business will prosper. The prosperity of the business depends more on economic facts than an anything else. In what way he is going to prosper, and in what way he is going to carry on his business, cannot be assumed. It is only the present requirement that can be taken into consideration while permitting the defendant the property.
22. It was with the consent of both parties, the Commissioner visited the other timber shops. In fact, no serious objection was raised regarding the statements made by the Commissioner as to how the timber merchants do business in that locality, how much area they are utilising for the same. That is also a relevant piece of evidence which could be taken into consideration. If a flourishing timber business could be done with much less area, a person who is not doing any business in the same field, cannot insist on the allotment of a larger area.
23. The trial Court has taken into consideration these facts, and has rightly come to the conclusion that the defendant requires only 2999 sq. ft. for his business. A portion of Shed No. 1, the entire Shed No. 3 and a portion of the vacant land have been allowed to be purchased, i.e., A A3 A2 BHCB B1 A1 area was allowed to be purchased. Since Shed No. 2 is not being used at all, and the same is being used only for storing sold old materials, the trial Court was right in excluding the entire Shed No. 2 from being purchased by the defendant. Likewise, in the structures put up in Shed No. 1, telephone and account-books have been kept only as ornamental pieces without any use. They can be shifted to the remaining portion allowed to be retained by the defendant. I do not think the trial Court has gone wrong in allowing only that area which was found to be sufficient for the convenient enjoyment of the defendant.
24. Now I come to the legal position. On the basis of the judgment of the Supreme Court, which is the law of the land, it is the equitable right that is sought to be enforced. It is a discretion. It is also a discretion by the Court. The Supreme Court has said that even if the defendant has a right, the court is not bound to give a relief under Section 9 and permit the defendant to purchase. When a discretion is exercised and that too compelling an unwilling owner to sell his property, the court must be a little more strict in enforcing that right. It is not a suit for specific performance but exercise of a statutory right. If so, the burden is on the defendant to prove that without the area required by him, he cannot do the business. The statute may be a beneficial legislation. But such a benefit can be given only to deserving persons. The purchase must also be to the extent he deserves. The interpretation in his favour can be only to that extent. It cannot be beyond what he deserves. Since this question has not been taken into consideration by the lower appellate court in the light of the decisions of the Supreme Court supra, I feel this is a fit case where I should hold that the lower appellate court has exercised its discretion illegally and has committed a material irregularity and it is more than irregularity. If the defendant is allowed to purchase the entire area as found by the lower appellate court, the plaintiff will also be put to great hardship and great injustice will be done to him. When the court is concerned with only equitable considerations, that equity will also fail if the judgment of the lower appellate court is allowed to stand.
25. In the result, I set aside the judgment of the lower appellate Court and restore the judgment of the trial court. The revision is allowed with costs. Connected C.M.P. 9460 of 1995 for stay is also dismissed consequently.