| SooperKanoon Citation | sooperkanoon.com/824306 |
| Subject | Tenancy |
| Court | Chennai High Court |
| Decided On | Nov-21-2000 |
| Reported in | (2001)1MLJ241 |
| Appellant | K. Sankar |
| Respondent | G.L. Vijayan |
| Cases Referred | and (iv) Radhakrishnan v. S.N. Loganatha Mudaliar |
V. Kanagaraj, J.
1. This civil revision petition is directed against the judgment and decree dated 16.7.1987 made in R.C.A. No. 10 of 1993 by the Rent Control Appellate Authority and the Court of the Subordinate Judge, Madurai, thereby reversing the fair and decretal order dated 15.12.1992 made in R.C.O.P. No. 215 of 1986 by the Rent Controller and Additional District Munsif, Madurai.
2. The landlord has filed the rent control original application before the Rent Controller against his tenant for eviction of the premises bearing door No. 60 of South Avani Moola Street, Madurai Town, under Sections 10(3)(a)(iii) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act') on averments that the said premises belongs to him under a Will dated 9.2.1951, that since being a minor the property was looked after by his father Kanagavel; that the respondent became the tenant of the premises for running his lorry booking office on terms that he would pay a monthly rent of Rs. 200 using the premises on lease for non-residential purposes without subletting the same to any other person and on paying an advance amount of Rs. 1,500 thus, the respondent enjoying the property as a lessee for the last 9 years; that the petitioner having attained majority, took over the management of the properties, including the petition premises; that having prepared an agreement for the said lease, the petitioner/landlord sent the same to be considered by the respondent/tenant and to be signed, but the same had not been sent back duly signed by him; that the respondent filed R.C.O.P. No. 607 of 1985 seeking permission to deposit the rents in the court and agreeing to receive the rent upto December, 1985, the petitioner required the respondent to remit the rents direct, from the month of January, 1986 and the same was complied with by money order.
3. The further case of the petitioner as pleaded in the petition is that on 13.1.1986, he replied the notice of the respondent dated 8.2.1986 attacking the Will, under which the petitioner got the ownership of the property; that the petitioner sent a second notice dated 11.3.1986, for which a reply dated 17.3.1986 had been sent by the respondent; that the respondent had denied, as per his replies, the ownership of the premises by the petitioner. Further more, the petitioner is badly in need of the petition premises since he wants to start a factory for manufacturing pencils towards which he has taken all the necessary steps. On these two grounds, and further branding the petitioner to be a chronic wilful defaulter in payment of rent, but laying emphasis only on two grounds, (i) for starting an industry himself in the premises, and (ii) seeking eviction on the denial of the title of the landlord to the premises and further pleading that the tenancy got terminated with the end of March, 1986, and therefore, the respondent also become liable to pay damages for the use and occupation of the property thus, would ultimately pray to evict the respondent and hand over vacant possession of the premises within a time fixed by the court, and for costs.
4. In the counter filed, the respondent besides denying all the allegations of the petitioner would specifically state that he never disputed the title of the petitioner; that he took the property on lease for godown and office purposes; that he was regularly paying the rent without any default; that the agent of the petitioner used to collect the rent; that he did not turn up to collect the rents for the months of May, June and July, 1985, as a result of which the respondent sent Rs. 2,100 towards rent by demand draft, which had been returned by the petitioner's father; that he filed an application in R.C.O.P. No. 607 of 1985 for depositing the rent into the court on refusal by the landlord thereby further denying all the other allegations in the petition, ultimately praying to dismiss the petition as vexatious and false since there is obviously no merit in the petition at all.
5. On such pleadings by parties, the Rent Controller would frame two issues for consideration of the petition, viz., (i) whether as averred by the petitioner, is he going to start a business in the premises? and (ii) whether the petitioner is the true owner of the premises? On these issues framed, the Rent Controller has conducted an enquiry into the pleadings to determine the issues, in which, the petitioner would examine himself as the sole witness for oral evidence as P.W.1 and would mark 4 documents as Exs.A-1 to A-4. On the part of the respondent, he would also examine himself as the sole witness for oral evidence as D.W.1 and the documents marked on his part was nil.
6. The Rent Controller, having assessed the facts and circumstances as pleaded by parties and having regard to the materials placed on record and having his own discussion and answering both the issues in favour of the petitioner thereby requiring the respondent to vacate the premises within three months and with proportionate costs, would pass the fair and decretal order.
7. Aggrieved, the respondent/tenant has preferred an appeal in R.C.A. No. 10 of 1993 before the rent control appellate authority and the said authority having framed two specific points, viz., (i) whether there are reasonable grounds to allow the appeal setting aside the fair and decretal order of the Rent Controller? and (ii) to what relief, if any, is the appellant entitled? and having taken up the subject for discussion, appreciating the oral and documentary evidence, would ultimately allow the appeal deciding that the building is not at all necessary for the landlord to start an industry and the said claim of the landlord is not bona fide thus deciding the first point in allowing the appeal and setting aside the fair and decretal order passed by the Rent Controller with costs. It is only challenging the said judgment and decree passed by the Rent Control Appellate Authority, the landlord as the petitioner, has come forward to file the above C.R.P. on certain grounds as brought forth in the grounds of memorandum of C.R.P.
8. During arguments, the learned Counsel appearing for the petitioner/landlord would submit that the respondent became the tenant on 9.2.1986 under petitioner's grandfather; that under Sections 10(2)(vii) and 10(3)(a)(iii) of the Act that is on denial of title of the landlord and for owner's occupation, the petition had been filed on the part of the petitioner; that the monthly rent has been fixed originally at Rs. 700; that the petitioner became entitled to the property by a Will executed by his grandfather; that in his reply under Ex.A-2 dated 17.3.1986 for the notice issued by the petitioner under Ex.A-1 dated 11.3.1986, the respondent denied the ownership of the petitioner; that the petitioner as a graduate having his own shop wherein he is running a diamond cutting unit and subsequently, he applied for starting a pencil manufacturing factory and got the SSI certificate also.
9. At this juncture, the learned Counsel appearing on behalf of the petitioner would cite a judgment delivered in Thirunavukkarasuv. Vasantha (1997) 2 L. W. 607, wherein it is held:
'Carrying on business', meaning of-If a step is taken with intent to do actual business and will be sufficient compliance of the Section. If such step is taken in contemplation of future need, it will be tantamount to carrying on business.
Factum of bona fide need can be proved in any manner known to law - Not necessary that son alone should come and give evidence - Landlady's deposition is sufficient.
10. In reply, the learned Counsel appearing on behalf of the respondent would submit that so far as the denial of title which is a ground for eviction in the petition by the landlord under Section 10(2)(vii) of the Act is concerned, both the courts have found in favour of the tenant, the respondent herein to the effect that there has been no denial of the title of the landlord. Hence, the only question that is to be decided is whether the premises is genuinely required for the owner's occupation or not? that there is no denial of the fact that the petitioner/landlord has got many properties in the town, and hence is disentitled to claim this property which is under tenancy by this respondent. The learned Counsel would point out that the fact that the owner of the premises who was already carrying on with the business and stopping it in the middle, then wanting and to commence the same, is one different from commencing a new business altogether. The learned Counsel would quote from the following judgments, wherein the upper forums of law have held in favour of the case of the respondent herein (i) Easwaran Chettiar v. Subbarayan 83 L.W. 696, (ii) Glamour Saree Museum v. Tamil Nadu H. W. Co-op. Society : (1969)2MLJ493 , (iii) Super Forgings & Steels (Sales) P. Ltd. v. Thyabally Rasuljee : (1995)1SCC410 , and (iv) Radhakrishnan v. S.N. Loganatha Mudaliar (1999) 1 M.L.J. (S.C.) 1 : (1998) 3 L.W. 186.
11. So far as the first judgment cited above is concerned, it is held therein:
Non-residential building requirement by landlord for purposes of his own business-Landlord already in occupation of his own building for his business - Eviction of tenant in another building of his not entitled.
The law as it stands says that the landlord is interdicted from seeking a non-residential building of his in the occupation of his tenant if and when he is already in such a non-residential building of his own in which he is carrying on a business.
So far as the second judgment cited above is concerned, it is held therein.
By the language employed in Section 10(3)(a)(iii) it is clear that if a landlord is carrying on a business in a non-residential premises of his own that will be a bar to his obtaining an order of eviction in respect of another premises. It does not appear to be the intention of the provision that the test is every business considered separately. It is not as if that if a landlord is having several businesses and is occupying a non-residential premises of his own in which he is carrying on one of the businesses, he is permitted by the provision to get possession of other nonresidential premises of his own for carrying on every one of the other businesses.
12. In the third judgment cited above, the Supreme Court has held therein:
Landlord occupying for his business another non-residential building of which he is a co-owner, held, cannot claim benefit of ground of eviction under Section 10(3)(a)(iii) of Tamil Nadu Rent Act against tenant on a non-residential building of which also he is owner or co-owner.
In the last judgment cited above also, it is again held by a Bench of the Apex Court:
On a plain reading of Section 10(3)(a)(iii) of the Act, it appears that the legislature intended that a landlord seeking eviction of the tenant could be disentitled from claiming possession of the non-residential premises where he requires those premises for his own use, if he is occupying a non-residential building of his own. Similarly, the landlord would also be disentitled from claiming possession of non-residential premises for the benefit of a member of his family, if that member of the family was inoccupation of a non-residential building of his own. Any other interpretation of this section would not only be doing violence to the plain language of the section, but would result in absurdity, inasmuch as the benefit of the provision would stand denied to the family members of the landlord, who do not occupy any premises of their own and for whose benefit eviction is sought, if the landlord himself is in occupation of a non-residential premises of his own.
13. In consideration of the facts and circumstances encircling the whole case connecting to the above C.R.P. and having regard to the materials placed on record and upon hearing the learned Counsel for both, what comes to be known is that the landlord, who filed the rent control original application before the Rent Controller on two specific grounds, viz., (i) under Section 10(2)(vii) and (ii) 10(3)(a)(iii) of the Act thereby seeking eviction of the tenant from the non-residential premises, wherein the tenant is carrying on his business of lorry booking office, that from 9.2.1966, he became the tenant of the premises under the grandfather having found that no case was made out under the first ground, viz., under Section 10(2)(vii) of the Act, that is non denial of the ownership of the landlord to the premises, however, would find that the landlord was entitled to get the tenant evicted under the other ground viz. under Section 10(3)(a)(iii) of the Act for owner's occupation, since on the part of the landlord, he has come forward to allege that he is going to start a pencil manufacturing-factory in the premises in question, and hence, requiring the same for owner's occupation. At this juncture, the Rent Controller would find that the landlord has proved his case for eviction of the tenant under this ground and would order eviction of the premises in three months from the date of order.
14. On an appeal preferred by the tenant, the respondent herein, the Rent Control Appellate Authority would find that the landlord has got many premises in and around the town and also it comes to be proved that the landlord has already been occupying one of the buildings wherein he is running a diamond cutting unit and subsequently, he has applied seeking permission and obtaining a certificate from the SSI Department to start a pencil manufacturing factory at the premises wherein the respondent is the tenant. The appellate authority, on such grounds would hold that since the landlord is already in occupation of another building for business purposes, he is not entitled to seek for the eviction of the tenant from the premises concerned and would set aside the order passed by the Rent Controller requiring the tenant to evict the premises. Regarding the other ground, that is seeking eviction on denial of the title of the landlord, the appellate authority would concur with the Rent Controller and say that this ground does not at all come to be proved.
15. So far as the ground for eviction of the tenant under Section 10(3)(a)(iii) of the Act is concerned, the Rent Controller and the appellate authority have differed in their views. The Rent Controller, on ground that since the premises is required for owner's occupation, to start a pencil industry, would simply order eviction of the tenant from the premises.
16. On the contrary, the appellate authority would also find that the landlord was occupying yet another building of his own and running another business, and hence, would conclude that even in the event that the contention of the landlord that he is going to start a pencil manufacturing factory in the premises is proved, is not entitled to seek for the eviction of the lawful tenant for starting a second unit or a fresh unit rather. The judgment cited on the part of the petitioner would reveal the manner in which the factum of requirement is to be proved and not the legal position under which the decision of the petition falls and has to be arrived at. So far as the factum of proof or the meaning for carrying on business is concerned, there is no controversy. But it is the question whether the landlord is already carrying on another business in yet another building owned by him, and if so, what is the effect on the case, is the point for consideration. Hence, the judgment cited by the petitioner herein is of no use to decide the case in hand.
17. On the contrary the judgments cited on the part of the respondent are unequivocal and pointed to the legal dictum that once the landlord is already in occupation of a premises of his own, for running a business or to start another business, he cannot seek for the eviction of the tenant, who is occupying the other building. Therefore, to the facts of the case in the above C.R.P. since on facts, it comes to be proved that the landlord is running a different industrial unit in a different non-residential premises, belonging to him in the town, is not entitled to seek for the eviction of the tenant so far as the language and construction of the section is concerned as decided by this Court as well as the Supreme Court of India, therefore the Rent Control Appellate Authority, not only on facts, but also on the legal basis, has arrived at the valid decision that the claim of the landlord for the eviction of the tenant for owner's occupation under Section 10(3)(a)(iii) of the Act is not bona fide and hence, as rightly set aside the fair and decretal order passed by the Rent Controller.
18. For all the above discussions held, either on facts or in law, there is absolutely no reason on the part of this Court to interfere with the fair and decretal order passed by the appellate authority thereby declining to grant the relief as sought for on the part of the revision petitioner/landlord thereby refusing to accept that the landlord has any right on both the grounds offered, viz., under Sections 10(2)(vii) and 10(3)(a)(iii) of the Act that ultimately setting aside the order of eviction of the respondent, passed by the Rent Controller, this Court does not find any valid or tangible reason to interfere with the well considered and well merited order passed by the rent control appellate authority declining to grant the relief under both the grounds under which the eviction of the respondent/tenant has been sought for. Hence, the interference that is sought to be made into the judgment and decree passed by the Rent Control Appellate Authority, is neither called for nor warranted. 19. In result, there is no merit in the above civil revision petition and the same is dismissed. The judgment and decree dated 16.7.1997 made in R.C.A. No. 10 of 1993 by the Rent Control Appellate Authority and the court of Subordinate Judge, Madurai, thereby reversing the fair and decretal order dated 15.12.1992 made in R.C.O.P. No. 215 of 1986 by the Rent Controller and Additional District Munsif, Madurai, is hereby confirmed. No costs.