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Judgment
M. Thanikachalam, J.—The landlords/petitioners in R.C.O.P.No.1212/96 on the file of the VII Judge, Small Causes Court, Chennai,
though obtained an order of eviction against the tenants, unable to sustain the same, when the same was challenged before the appellate authority
and the result is the dismissal of the application, which is challenged in this revision.
The revision petitioners are the owners of a non residential premises bearing Door No.262, Purasawalkam High Court, Madras, about 541
sq.ft., comprised in R.S.No.602/2, 603/2 part, new R.S.No.602/3, 602/12. The respondents are in occupation of the same, as tenants, agreeing
to pay a monthly rent of Rs.2200/-. The third petitioner is carrying on business in sarees in the name and style of Sanjay Sarees Centre in a rental
shop at premises No.21, Iyyah Mudali Street, Chindadripet, Madras-2, on a monthly rent of Rs.550/-. The third petitioner felt it very convenient,
to carry on his business, in the rented premises, which is in a narrow street. Therefore, he decided and intended to shift his business, from the
rented premises to the premises, owned by the petitioners, since this premises will be suitable for textile business, as it is situated in the main
Purasawalkam High Road, a busy marketing area, known for textile business. In this view, when they asked the tenants, the tenants refused to
vacate the premises and therefore, this petition is filed u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for the purpose
of personal occupation, by the third petitioner, in order to carry on his business, in the premises.
The respondents admitting the tenancy would contend, that the premises at No.21, Iyyah Mudali Street are owned by some of the petitioners,
that in view of this fact, the petitioners own the premises, in which one of the petitioners is carrying on business, they are not entitled to invoke the
provisions of Section 10(3)(a)(iii) and that the requirement of the petitioners, for carrying on the alleged business, in the petition mentioned
property, is not bona fide.
On the above averments, parties went on trial before the Rent Controller, where the third petitioner has been examined as P.W.1, while the
second petitioner has been examined as P.W.2. In support of the above oral testimony, 15 documents were exhibited, which are attempted to be
eclipsed by the examination of the first respondent, producing two documents. The learned Rent controller upon consideration, had come to an
irresistible conclusion, that the third petitioner is carrying on his business in a rented premises at door No.21, Iyyah Mudali Street, Chintadripet,
Chennai-2 and that the requirements of the petitioners to shift the business from the rented premises to the own premises is bona fide. On the
above conclusion, he allowed the application, ordering eviction on 21.2.2000, which was under challenge in R.C.A.No.419/2000, before the
appellate authority.
The appellate authority, upon perusing the materials, unable to subscribe his view to the conclusion of the Rent Controller, whereas he differed
on material points. Ultimately, the R.C.A. came to be allowed on 7.12.2001, setting aside the order of eviction, thereby ordering to dismiss the
Rent Control Application itself, which is under challenge in this revision.
Heard the learned counsel for the petitioners, Mr. Nagu Sah and the learned counsel for the respondents, Mr.V.S. Subramaniyam.
The learned counsel for the petitioners submits, that the petitioners have made out a case, satisfying the requirements of Section 10(3)(a)(iii) of
the Act, which was accepted by the Rent Controller and unfortunately, on misconception, the same was set aside by the appellate authority,
requiring interference by this Court, under the revisional jurisdiction. Opposing this argument, the learned counsel for the respondents/tenants
submits, that the landlords are owning a non residential building of their own within this city and if they desire to have business, they could carry on
the said business in that premises. He further submits that instead of choosing the larger area, without bona fide, only in order to evict the tenants,
this petition is aimed with mala fide intention, which was noticed by the appellate authority deserves acceptance by this Court also.
The petitioners are the owners of the demised premises. The respondents are in occupation of the same as tenants and the building is used for
non residential purpose. The specific case of the petitioners is, that the third petitioner is carrying on business in sarees, in a rented premises and
therefore, the premises is required to carry on the said business. The respondents, as aforementioned, more or less exhibiting their ignorance about
the business of the third petitioner, opposed the application, only on the ground of mala fide or in other words, there is no bona fide in the claim of
the landlords, as contemplated u/s 10(3)(e) of the Act. In support of the above contention, my attention was drawn to Hameedia Hardware Stores
v. Mohan Lal Sowcar 1988 2. L.W. 1, wherein the Apex Court has held as follows:
By merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for
the purpose of a business which he or any member of his family is carrying on in any residential building in the city, town or village concerned which
is his own, the landlord cannot in the context in which S. 10(3)(a)(iii) appears, get a tenant evicted. He must show in view of clause (e) of S. 10(3)
that his claim in bona fide.
The above proposition could not be disputed.
In order to sustain an eviction, as held by this Court in A.M. Dhanapal Chettiar Vs. T.D. Sundaram and Others, , the following conditions
should be satisfied and they are:
(a) The petition mentioned shops must be non-residential.
(b) The petitioner''s sons for whose business the petitioner requires the petition mentioned shops must carry on a business.
(c) The petitioner''s sons for whose business the petitioner requires the shops are not occupying for the purpose of such business a non residential
building of their own, and
(d) The petitioner''s requirement of the petition mentioned shops for the business of his sons must be bona fide.
The learned counsel for the tenants, inviting my attention to a decision of the Apex Court in Super Forgings and Steels (Sales) Pvt. Ltd. Vs.
Thyabally Rasuljee (Dead) through Lrs., submits, that if the landlords are occupying for their business, another non residential building, of which he
is a co-owner, they cannot claim the benefit of ground of eviction, u/s 10(3)(a)(iii) of the Act, which is the view of this Court also in C. R.
Subramaniam Vs. N. Vasudevan, . Therefore, we have to see whether the landlords or the third petitioner are/is occupying another non residential
building of their own, as far as third petitioner is concerned, as a co-owner or in his individual capacity.
In order to doubt the bona fide of the landlords, shifting the business from the existing premises to the petition mentioned premises is criticised,
as if the required place may not be suitable to carry on the business successfully. In Gajendra Sha and Another Vs. M. Govindarajan, , considering
the facts and circumstances of that case, this Court has taken the view as follows:
No reasonable business man would shift the flourishing business from the place which is most suitable to another place which is not suitable.
Factually, for the reasons, which I am going to advert infra, this ratio will not come to the aid of the tenants. As admitted by R.W.1, the third
petitioner is doing the business in a narrow street, which may not be sufficient to have it enlarged, as intended and desired by P.W.1. It is in
evidence, the petition mentioned premises in Purasawalkam High Road, which is suitable for textile buisness. In this view, shifting the business from
21, Iyyah Mudali Street, Chintadripet, Chennai to Purasawalkam High Road, the third petitioner will have a lucrative business and his shifting
cannot be doubted as unreasonable on the ground that the business will be affected.
The learned counsel for the tenants would submit, that other members of the family viz., 1st and 2nd petitioners are admittedly occupying a non
residential building, for the purpose of their business and therefore, another petitioner viz., the petitioner, a co-owner along with other petitioners,
cannot ask the demised premises for the purpose of the business, carried on by him.
As an answer to this contention, the learned counsel for the landlords invited my attention to M/s.Indian Plywood Manufacturing Company v.
Balaramiah Chetty 1986 MLR 48, wherein this Court had taken the view as follows, approving the previous decisions:
Though the landlord may be in occupation of a non residential building, for the purpose of his business, he could apply for eviction of the tenant, in
respect of another non-residential building, for the purpose of a business, which any member of his family is carrying on, provided the person for
whose benefit the non-residential building was required by the landlord, is not in occupation of a non-residential building of his own. Now this
decision has taken the considered view on a construction of section 10(3)(c)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act that if a
landlord is to be disentitled from claiming nonresidential premises on the ground that members of his family required the said premises for their own
use, then this can be done only if the members of the family are also in occupation of a non-residential building of their own.
On facts, this ratio is well applicable to the present case. Having the above principles and the settled position of law, we have to see the facts in this
case, in view of the reversal finding.
The Rent Controller, accepting the oral evidence of P.W.1, which is supported by Exs.P.1 to P.13, came to the conclusion, that the third
petitioner is carrying on saree business in a rented premises, bearing door No.21, Iyyah Mudali Street, Chintadripet, Chennai-2. This finding is not
at all set aside by the appellate authority. Therefore, it could be safely concluded, that the third petitioner is carrying on business, on the date of
filing of the petition, in a rented premises. The contention of the learned counsel for the tenants, that non production of the account book, to show
the continuous business may not have any bearing in this case, since, it is not the case of the tenants, that the third petitioner, after filing the petition,
discontinued that business or ceased to occupy the rented premises, after creating documents, so as to show that he was carrying on business on
the date of filing of the application. Thus, in my considered opinion, the petitioners have proved that the third petitioner is carrying on business, as
defined under the Act, in a rented premises.
The next question that arises for consideration is, whether the petitioners are occupying, for the purpose of such business, a non residential
building of their own. The third petitioner as P.W.1 had testified before the trial Court, that he is not occupying any other non residential building,
for purposes of business, which he is carrying on. Though an attempt was made to elicit from him, that he is owning a non residential building, it has
not helped the tenants, to negative the claim or to doubt the bona fide. P.W.1 admits that he is jointly owning a property at No.77, Arunachala
Naicker Street, Chintadripet, Chennai-2, where there are three portions, which could be used for business. It is not the case of the tenants, when
that answer was given by P.W.1, that those nonresidential buildings were vacant or it was occupied by the landlords for the purpose of the
business. The Act says, that the landlord or any member of his family should not occupy any other non residential building, for purposes of a
business and it does not say owning a building. P.W.1 makes it crystal clear, that the building, in which he is also having joint interest, are in the
occupation of the tenants from the year 1993. In the same manner, the property in door No.8, Pursawalkam High Road, is being used as an office
premises, which is not occupied by the landlords, for purposes of a business, which they are carrying on.
From the oral evidence of R.W.1 also, I am unable to see any materials indicating, that the landlords are occupying any non residential building,
for a business, for which purpose, at present the demised premises is sought for. The fact that the landlords independently or jointly owned a
property, may not disentitle them, from claiming the demised premises, for the purpose of conducting a business, by one of the members of the
family. As held in M/s.Indian Plywood Manufacturing Company v. Balaramiah Chetty, since the tenants have failed to prove, that the third
petitioner is occupying a non residential building, for his business, I am unable to find any reason to dislodge the entire evidence given by P.W.1,
which highlights that he is not occupying a non residential building of his own. All the non residential buildings said to have been owned by the
petitioners or third petitioner, individually or jointly, are all not in the occupation of the petitioners and they are occupied by various tenants. The
respondents/tenants have no right to direct the landlord to choose the premises, leaving him undisturbed. It is for the landlord, to choose the
premises, for his occupation, in order to carry on his business, which he is doing in a rented premises. As spoken by P.W.1, he felt that if the
business is shifted from No.21 Iyyah Mudali Street, to the demised premises, he can have a flourishing business, which cannot be denied totally,
considering the advantages enjoyed by the petition mentioned building and the situation, where, as admitted by R.W.1, textile business is prevalent
in the city. R.W.1 also admits that he does not know, whether the third petitioner is doing the same business, in any other premises of his own. In
fact, he admits that no premises was let out by the petitioners, after the eviction petition was filed. It is also admitted by R.W.1, that at no point of
time, the landlords have claimed enhanced rent.
By going through the oral evidence of P.W.1 and R.W.1, the irresistible conclusion that could surface is, that there is much bona fide in the
claim of the landlords, since they have made out, that the petition mentioned premises is a non residential building, that the third petitioner requires
the petition mentioned premises, for the purpose of a business, which he is carrying on, that neither petitioners 1 & 2 nor the third petitioner are not
occupying any non residential building of their own, for the purpose of the business, now carried on by the third petitioner and therefore, the
requirement must be undoubtedly, an unadulterated bona fide.
It is true, Section 10(3)(e) of the Act contemplates, that the Controller shall satisfy that the claim of the landlord is bona fide, then only he is
empowered to make an order, directing the tenants to put the landlord in possession of the premises. This bona fide contemplated, in my
considered opinion, need not have an acid test, creating unnecessary doubt then and there, compelling the landlords to answer each and every
doubt raised by the tenants, in view of the inbuilt provisions in the Act, safeguarding the interest of the tenants, even after the eviction order is
passed, provided, the conditions are not complied with.
Sub section 5(a) of Section 10 of the Act mandates, the landlord to occupy the building for the purpose, it is sought for, within one month. It
also further directs, that after occupation, he could not vacate it, without reasonable cause within six months, from the date of occupation. If these
conditions are violated, sub Section 5 (b) gives the right to the tenants, to apply for possession. Section 33(1-A) provides punishment, in case of
violation of the above said condition. In this view, though as mandated u/s 10(3)(e) of the Act, bona fide must be established, it need not be so
rigid, unless a mala fide is made out, either by implied conduct of the landlord or by any other action taken by the landlord, then having failed,
taking this section as a ruse, to get an order of eviction.
Scanning the materials, as aforementioned, I am of the considered opinion, that the landlord have satisfied all the ingredients required, for an
order of eviction u/s 10(3)(a)(iii) of the Act, including the bona fide, whereas the tenants have failed to create even any doubt by adducing
materials. The position being so, the observation of the learned appellate authority, that the landlords need not conduct a business in this premises,
after evicting the tenants, appears to be illogical, as well as against the materials available on record, coming within the meaning of perverse in
nature. For the foregoing reasons, I am constrained to set aside the order of Rent Control Appellate Authority, restoring the order of eviction in
R.C.O.P.
In view of my discussion above, the revision is allowed, setting aside the order of the Rent Control Appellate Authority in R.C.A.No.41
419/2000 and restoring the order of eviction dated 21.2.2000 passed in R.C.O.P.No.1212/96 by the learned Rent Controller, directing the
respondents to pay costs throughout. Time for eviction three months.