A. Perumal and 4 others vs P. Mohammed Sarbuddeen

K. Govindarajan, J.

ORDER

C.R.P.No.2777 of 3994:- The tenant who suffered by an order of eviction on the file of Rent Control Appellate Authority, Tirunelveli filed the

above Revision. The landlord filed a petition in RCOP. No.93 of 1989 on the file of Rent Controller, Tirunelveli. According to the landlord, he

purchased the property for the purpose of carrying on his own business. He studied and passed his training in Motor Mechanism for I.T.I. Pettai.

He has sufficient knowledge in the spare parts of Automobiles. When he sought for loan from the State Bank of India, Tirunelveli, they sent a letter

dt. 9.3.1989, directing the petitioner/landlord to approach any nationalised Bank at Tirunelveli Town. He also applied for loan to Canara Bank,

Tirunelveli, for which he was asked to meet the concerned officers. On that basis, he sent a notice on 11.2.1989 to the tenant to vacate the

premises. Further, the tenant filed a counter and contested the petition on the ground that the landlord was not carrying on any business and he

denied the proposal of the landlord to start the business. The Rent Controller accepted the case of the landlord on the basis of the evidence

adduced before him and found that the landlord has been carrying on his business and his premises is bona fide one.

Aggrieved against the said order, the tenant preferred R.C.A. No. 17 of 1992 on the file of the Rent Control Appellate Authority, Tirunelveli.

The Appellate Authority also confirmed the order of the Rent Controller, Tirunelveli. Aggrieved against the said order, the tenant filed the present

revision.

The learned counsel for the petitioners has submitted that to maintain the petition u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent

Control) Act (herein after referred to ''the Act'') the landlord must prove that he has been carrying on business, and mere intention to carry on the

business is not sufficient to sustain the petition. According to him, in Ex.P.1 notice issued by the landlord and in the petition filed for eviction, the

landlord has not stated that he has been carrying on business and only in the evidence he had deposed that he has been carrying on his business.

According to him. The landlord can ask for eviction only in the basis of the averments in the petition, and the pleading in the petition is taken into

consideration, it shows that the landlord has only intention to start a business. According to the learned counsel for the petitioner mere intention to

start a business is not enough to maintain the petition.

The learned counsel appearing for the respondent/landlord has submitted that the orders of the Rent Controller are all summary proceedings and

even though in the petition and in the notice issued by the landlord, he has not stated that he has been carrying on any business, in the evidence it is

specifically deposed that he has been carrying on business in the building owned by his mother. Both the Authorities below have accepted the

evidence and categorically found that the landlord has been carrying on business and his premises is bonafide one. So, in the Revision, this Court

may not interfere with the said factual findings.

As submitted by the learned counsel for the petitioner there is no positive averments in Ex.P.1 and in the petition to the effect that the landlord

has been carrying on business in some other premises. But, from the reading of the Ex.P.1 and the petition we cannot be come to the conclusion

that the landlord has admitted that he was not carrying on any business in any other place. In the evidence, P.W.1 has categorically stated that he

has been carrying on business. In support of his evidence, the landlord filed this Exs.P.6 to P.15.

The learned counsel for the petitioners submitted that in the absence of any pleading to the effect that the landlord has been carrying on a

business, the petition cannot be maintained. To support his contention, he relied upon the decision of Ramalingam Pillai (dead) and 7 others v.

Murugesan and another case (1993-1-L.W. 356) wherein Venkataswami, J. (as he then was) has held that:

Taking into consideration all the averments made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of

bona fide requirement. The Courts have to consider only the evidence on record and decide whether the bona fide requirement has been made

out. The absence of an express sentence in the pleading does not vitiate the proceedings before the Courts below.

In the said case cited by the learned counsel for the petitioner, the oral evidence was not so clear, and the learned Judge set aside the order of

eviction. So the said judgment may not help the case of the tenant but on the other hand it will help the case of the respondent. The submission of

the learned counsel for the petitioner that mere intention is not enough to start the business cannot be sustained, in view of the fact that the landlord

has proved that he has been carrying on the business in some other premises.

On the basis of oral and documentary evidence, both the authorities below come to the conclusion that the landlord has been carrying on the

business and his premises is bonafide one. In view of the concurrent findings of the both authorities below, I am not inclined to interfere with the

said factual findings. I do not see any illegality or irregularity in the orders of the Authorities below. Hence, the Civil Revision Petition is dismissed.

Consequently, the connected C.M.P. is also dismissed. There will be no orders as to costs.

The learned counsel for the petitioner requested time to vacate the tenant from the premises. The petitioner is granted six months time from

today on condition that the petitioner should file an affidavit of undertaking that he will vacate the premises and hand over the vacant portion of the

premises on or before the said period without dragging the landlord to court for possession. The said affidavit should be filed on or before

20.11.1997. If the affidavit is not filed within the date, thee order of eviction will come into effect immediately. C.R.P.No.2778 of 1994: The

learned counsel for the petitioner submitted that he is not pressing the petition and the same may be dismissed as withdrawn. Hence, the Civil

Revision Petition is dismissed as withdrawn. There will be no orders as to costs.