Abdul Kadar vs Packiyaraj(died), & Ors.

The demised premises was purchased by one Jebamani Nadar in the year 1967. It was let out to the revision petitioner on oral tenancy during

the life time of Jebamani Nadar to run music instrument shop under the name and style of ''''Farakkath Musical Centre''''. In the year 1989,

Jebamani Nadar died. His son Packiyaraj inherited the property and became the absolute owner of the property, since his mother and sisters

relinquished their right in the property to and in favour of Packiyaraj.

While so, the landlord sought for vacant possession of the demised building by September 2003. While the tenant/revision petitioner initially

agreed, but did not vacate the premises and hand over the possession. Four sons of the landlord are uneducated and in need of the premises to run

business. Hence, RCOP.No.5/2004 was filed for eviction on the ground of bona fide request of the landlord to start business in the demised

building. The said petition was contested by the tenant/revision petitioner.

The claim of bona fide requirement was denied. Questioning the bona fide of the landlord, the tenant contended that the landlord have 6 to 7

shops apart from the demised premises in the same Town. Further, the landlord has not proved his preparation to establish any business in the

demised premises. Admittedly, the landlord have no wherewithal or capital to start a business. Above all, admittedly, he is not even certain about

the business he intends to start. Therefore, the demand to vacate is not borne out of bona fide intention.

The Rent Controller, after appreciating the oral evidence let in by the landlord and the tenant and Exhibits P1 to P6 & R1 to R4, has held that

the petition premises is admittedly a non residential premises. The respondent is tenant under the petitioner. The plea of the landlord that he has

four sons and they are not properly educated is not controverted by the tenant. Since the landlord as father wants to arrange for his sons source of

income through self-employment, he requires the demised premises. Therefore, his requirement is justifiable and his bona fide cannot be doubted.

Regarding the plea that the landlord owns other shops, the Rent Controller has held that it is the prerogative of the landlord to choose the

building suitable for his business and the tenant can have no say in it. Pointing out that the sons of the landlord working as Driver, Mechanic and

Helpers in Grocery shop, the Rent Controller held that the intention of the landlord to set up business for them is bona fide. Thus, he allowed the

petition for eviction. On appeal, the Appellate Court confirmed the order in RCOP by reiterating the reasons stated by the Rent Controller.

Having lost the case before both the Courts below, the tenant has preferred the present revision petition. Pending revision petition, the

respondent/landlord died and his legal heirs were brought on record.

The main contention raised by the revision petitioner is that the respondent was not a bona fide landlord who requires the premises for his own

occupation, while he have other shops and agricultural land in Eral Trown and sufficient income. He does not require the demised premises to start

business. The landlord has not whispered about the nature of business he intend to carry. Therefore, the Courts below have erred in allowing the

petition which requires reconsideration.

In support of his submission, the learned counsel for the revision petitioner relied upon the unreported judgment of this Court rendered by

A.T.Balasingh vs. J.Thangamani Ammal (CRP(MD)Nos. 269 and 270 of 2013, dated 03.04.2013) wherein, His Lordship Hon''ble Mr.Justice

R.S.Ramanathan has observed as follows:-

''''15.... in the petition filed by the respondent/landlady, she only stated that her children and husband were unemployed and therefore,

she required the building for starting a business and she has not stated the nature of the business to be started and in the absence of

mentioning the nature of business, either in the petition or in evidence, it is not possible to arrive at a conclusion whether any steps are

required for commencing the business or whether the claim of the landlady is only a wish and whether she is really interested in

starting any business. Even in evidence, she has not stated the nature of business to be started and she has only stated that her two

sons are having cycle shops and one son was employed in grocery shop, she has not stated anything about the nature of business to

be started in the premises.

17.According to me, having regard to the allegations made in the petition and the nature of evidence given by the landlady, the

landlady was only having a wish to start business and no steps were taken to start any business and in the absence of any steps taken

or in the absence of any pleadings to that effect, the landlady was not entitled to evict the tenant on the ground of owner''s occupation

and that would also prove that the landlady was not bona fide to start the business. These aspect were not properly appreciated by

the lower appellate Court.''''

The learned counsel for the respondents submitted that in the year 2004 when the landlord filed the eviction petition, two of his sons were major

and other 2 were minors. Now all the four sons have attained majority. They are not able to eke out their livelihood and sold away some of their

father''s property. The requirement of the demised premises to establish their own business and auger income has become more imminent. The

property and the adjacent property which is subject matter of CRP.No.640/08 arising out of RCA.No.3/2007 against RCOP.No.4/2004 are very

much required for the respondents herein to start up business for their own. The Rent Controller has ordered eviction as early as 19.09.2006 and

same was confirmed by the appellate authority as early as 31.01.2008. However, the revision petitioner did not vacate the premises on his own.

Relying upon the judgment of this Court reported in (2009) 2 MLJ 657 in the case of S.Sankaran vs. Sivasubramanian @ M.S.S.Manian, the

learned counsel for the respondents submitted that once the bona fide requirement of the premises by the landlord for his own use is proved and

the landlord has established the grounds of eviction, under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, he is

entitled to seek eviction of the tenant on that ground.

While the counsel for the revision petitioner contends that the landlord has only expressed his wish to start business without disclosing the

nature of business. He has not proved his bona fide intention to carry on business in the demised premises. The counsel for the respondents

submits that the claim of bona fide requirement is a question of fact and the same been erroneously held in favour of the landlord by both Courts

below after considering the evidence let in by both sides.

The landlord in his deposition has clearly stated that he has four sons and all of them are employed for salary under others. To augment income

for his family, he requires the demised premises to start a business. In the cross examination, he has explained the reason for seeking eviction of the

demised premises. It is also elucidated in the cross examination that his earlier business ended in loss and therefore, he has leased out other shops

he owns. He has expressed his proposal to start grocery shop in the demised premises. His admission that he has not obtained licence to run a

grocery shop and he has no capital are not the indications to hold his requirement as not bona fide.

In this case, the landlord is having 4 grown up sons with no educational background worth mentioning and all the sons are employed under

others for meagre salary. The landlord intends to start a business of his own in his own building to provide self-employment for his sons. There is

no material to infer such an intention is not a bona fide intention. In the background of the facts proved, it cannot be construed as a mere wish. To

start a grocery shop in a small place like Eral Town, capital required will be very minimal. Non mobilisation of capital before getting vacant

possession per se cannot be a reason to hold the landlord lacks bona fide requirement.

In Hameedia Hardware Stores vs. B.Mohan Lal Sowear reported in AIR 1988 SC 1060 = (1998) 2 SCC 513, the Hon''ble Supreme Court

held as follows:-

''''The word ''claim'' means ""a demand for something as due"" or ""to seek or ask or for on the ground of right"" etc. In the context of

Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose

of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a

landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision

on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally

depend upon the bona fides of the landlord''s requirement or need. The word ''claim'' in clause (e) of section 10(3) of the Act should,

therefore, be construed as ''the requirement'' of the landlord or his deservedness. ''Deserve'' means ''to have a rightful claim'' or ''a just

claim''. Since clause (e) of section 10(3) of the Act is also applicable to a petition filed under subclause (iii) of section 10(3)(a) of the

Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict

a tenant to satisfy his whim by merely proving the ingredients mentioned in section 10(3)(a)(iii) of the Act.''''

In this case, the landlord has proved his just claim over the demised property to run a business of his own. The revision petitioner had

unsuccessfully pleaded against the landlord that his claim of possession is not bona fide. While the landlord with four sons claims the premises on

the ground of bona fide requirement, the tenant who denies it, is bound to place before the Court a contra proof for mala fide. There is no such

material to attribute mala fide or lack of bona fide from the pleadings and evidence.

It is the choice of the landlord to choose the building for doing his business and it is not for the tenant to dictate terms as to how the landlord

should choose building for non-residential purpose. The said aspect was considered by this Court in the decision rendered in the case of Kishore,

B v. D.Maragathavalli reported in 2007 2 CTC 797, wherein, it has been held as follows:-

So far as the other non-residential portion is concerned, which is vacant, the Act does not say that if landlord owns more than one

non residential building, he would be disentitled to an order of eviction. It is naturally open to the landlady to choose which building

she would require for occupation of business of P.W.2. Contention of learned counsel for the Revision Petitioner that the Landlady

has other portion vacant and the Landlady''s Son could occupy anyone of those premises cannot be countenanced both factually and

legally. According to Landlady, the other portion is insufficient to run Automobile business. Even assuming that other premises is

available, choice is left to the Landlady as to which nonresidential premises she should occupy and the Tenant cannot dictate terms in

this matter. [emphasis added]"".

Hence, this Court finds no perversity in the order of the Rent Controller and the Rent Control Appellate Authority. Hence, this Civil Revision

Petition is dismissed. No costs. Time for eviction is two months. Consequently, connected miscellaneous petitions are closed.