AI Structured Summary
Not yet generated for this judgment
Judgment
K. Govindarajan, J.—The tenants aggrieved against the order passed by the learned Appellate Authority, has tiled the above Revision. The
landlords filed a petition in R.C.O.P. No. 1272 of 1987 on the file of the learned XVI Judge, Court of Small Causes, Madras, for evicting the
tenants u/s 10(3Xl)(iii) of the Act 18 of 1960. According to the landlords, the first petitioner''s son started the business under the name and style of
Jasma Steel Corporation in steel and hardware and they have been carrying on the business in the first floor of the premises bearing door No. 78,
Sembudoss Street, Madras - 1. According to them, taking into consideration or the nature of the business, the room occupied by them in the I
floor is not sufficient and convenient and they are finding it very difficult to carry on their day-today business there. The ground floor of the
premises occupied by the tenants is sufficient for carrying on the business effectively and conveniently. It is also further stated that the tenants are
owning their property at No. 20, Appu Maistry Street, Madras - 1. On the abovesaid pleadings the landlords sought for eviction of the premises
for carrying on the business of the children of the first petitioner. They have also stated that the children do not possess, any other premises of their
own. This petition was resisted by the tenants by filing a detailed counter. In the counter it is stated that it is only as a counterblast to the earlier
proceedings in R.C.O.P. No. 5086 of 1982 filed by the landlords for fixation of fair rent. In the said R.C.O.P. fair rent was fixed at Rs. 71.2A
from Rs. 962/- which was confirmed by the High Court. It is further stated that the petition for eviction is filed in a vindictive fashion only to extract
enhanced rent from the tenants. It is also stated that the I floor of the petition premises remains vacant for a very long time and even subsequent to
the filing of the petition, if die landlords had really wanted die petition premises in question to shift the business of their son, the petitioners would
have occupied I floor of the petition premises. It is further stated mat the landlords own several other commercial properties in the city of Madras
and those places are better suited for the business. On the above pleadings, the tenants prayed for dismissal of die eviction petition. The learned
Rent Controller in his order dated 22.11.1990 accepting the case of the tenants, rejected the petition for eviction. Aggrieved against the same, the
landlords filed Appeal in R.C.A. No. 590 of 1992, on the file of die appellate Authority/VIII Judge, Court of Small Causes, Madras. The
Appellate Authority found that the requirement of the landlords for the occupation of their children of die premises in question is nothing but bona
fide and on that basis set aside the order of the Rent Controller and allowed the appeal. Aggrieved against die same, the tenants have filed the
above Revision.
The only point to be decided in this case is whether the requirement of the landlords of die premises in question for the conducting of the
business of their children is a bona fide one. The children for whom die premises is sought for were carrying on their business in name and style of
Jasma Steel Corporation originally in the III floor of the premises bearing door No. 7, Sembudoss Street. They occupied an area of 120 sq.ft.
Admittedly the said premises is owned by the landlords. In 1985 they have shifted their place of business to the I floor of the premises at No. 78,
Sembudoss Street, Madras - 1. They occupied an area of 150 sq.ft. From the evidence it can be seen that they had been paying rent at Rs. 125/-
per month.
It is also relevant to mention here that the agreed rent between the parties to the premises in question was Rs. 900/- per month. The landlords
filed the R.C.O.P. No. 7086 of 1982 u/s 4 of the Act claiming fair rent at Rs. 2037/- per month. The Rent Controller in his order dated 30.8.1983
fixed the fair rent in his order dated 30.8.1983 at Rs. 712/- per month, which is less than the contractual rent. The landlords filed appeal in R.C.A.
No. 1528 of 1983 which was dismissed on 21.11.1984. Thereafter they filed further revision in this Court and even that Revision was dismissed in
1986.
Pending the Revision, the landlords issued a notice under Ex.P-1 dated 9.8.85 terminating the tenancy and asking the tenant to vacate the
premises for the purpose for which the building is sought for. Ex.P-2 is the reply sent by the tenant for the notice dated 24.8.1985. The landlord
sent a rejoinder under Ex.P-3 dated 16.9.1985. That was also replied by the tenant under Ex.P-4 dated 11.10.1985.
Thereafter they filed the present petition for eviction in March 1987. Pending the proceedings, in 1989 they further shifted the business to Door
No. 62, Sembudoss Street to occupy an extent of 600 sq.ft. It is not in dispute that in 1985 after shifting to the I floor of the premises bearing door
No. 78 Sembudoss Street, Madras the tenant from the first floor of the premises in question had vacated. The abovesaid facts are not in dispute.
The learned counsel appearing for the petitioners has submitted mat the eviction petition has been filed with a view to get rid of the tenants and
not with the bona fide intention to occupy the said premises. To substantiate the same, the learned counsel has submitted that though the I floor of
the premises in question fell vacant, if really the children of the landlords require the premises to do their business, in their own premises they would
have shifted their business to the I floor, from Door No. 78 Sembudoss Street, Madras wherein also they were occupying only the I floor. If really
they want the ground floor of the premises to do their business even by occupying the I floor, they can very well ask for eviction u/s 10(3) of the
Act. It is his further submission that only because the rent was reduced and only with a view to get more rent they have filed the petition. If really
they were in need of the premises in question they would have filed the petition immediately after issue of notice under Ex.P-1. But they had waited
for nearly two years and that itself shows, according to the learned counsel, that their requirement is not bona fide. It is also further submitted by
him that though the I floor was vacant even in 1985, the landlords have not explained why they have not occupied the said premises, and they
subsequently shifted to the other premises bearing Door No. 62, Sembudoss Street, Madras in 1989. He referring the Chief-examination of
R.W.1 in which he has stated that the landlords are doing their business in Akbar Steel Corporation in the premises bearing Door No. 7
Sembudoss Street, Madras which is admittedly of their own he has submitted that the petition cannot be maintained as the business to be carried
on by them for which the premises is sought for is a family business. Though the children are carrying on the said business, and'' even assuming it is
a separate one the landlords cannot go on file petitions for eviction to evict the tenants for the benefit of the members of their family.
Per contra, the learned senior counsel appearing for the respondents/landlords has submitted that both in the petition and in the evidence it has
been categorically established that the I floor of the premises is not suited for the said business which has been carried on by the children. Further,
the business also has been developed. According to him, the fact that the business was shifted to Door No. 62 in 1989 itself would show that the
requirement of the landlords is a bona fide one. He has also submitted that the delay in filing the petition, after long time from the date of issue of
the notice cannot be a ground to deny the relief asked for by the landlords. The learned counsel has further submitted that the said business is being
carried on by the landlords and the present requirement is only for their children, and so it cannot be said that the petition is not maintainable.
Admittedly, the landlords are the owners of the premises in question, namely, Door No. 7, Sembudoss Street, Madras. Since the landlords
came forward with the specific averment in the petition that the nature of the business is such and the room occupied by them in the I floor of the
premises is not sufficient and convenient and they are finding it very difficult to carry on their day-today business there, and P.W.1 also has
deposed to that effect, it cannot be said that they have not explained the reason why they want the ground floor of the premises. It is relevant to
mention here that there is no denial at all in the counter filed by the tenants with respect to these averments made in the petition. There is no contra
evidence available on record to disbelieve the said reason.
Then the question will arise why they did not shift the place of business in 1985 from the I floor, bearing Door No. 78, Sembudoss Street,
Madras - 1, to the I floor of the present premises in question which fell vacant subsequently, as submitted by the learned counsel appearing for the
tenants, they would have shifted to the I floor of the premises, if really they want to do their business in their own premises. From the reason given
by the landlords, their requirement is not only to do their business in the premises of their own but also taking into consideration of the nature of
their business, they want to carry on the same conveniently in the ground floor of the ''premises''. So reason has been explained by the landlords
and only because of the said reason they have not shifted their business to the I floor. P.W.1 in his chief-examination has also stated the reason.
Thereafter they shifted the place of business to the ground floor bearing Door No. 62, Sembudoss Street, Madras-1, in 1989, which would clearly
prove the intention of the landlords that they want to carry on their business in the ground floor, and that is why require the premises in question. If
really the intention of the landlords was to get more rent, they would have leased out the premises of the I floor portion immediately after the same
fell vacant. So the submission of the learned counsel appearing for the petitioners that the non occupation of the floor of the premises in question in
1985 its would prove that the landlords have no immediate requirement to occupy the sail premises cannot be correct,
The learned counsel, in support of his submission has relied on the decision in Sankaran A. and another v. S.K. Balasundaram and another
(1994-2-L.W. 152) wherein Thanikkachalam, J., as he then was, taking into consideration of the fact that after filing the petition for eviction in that
case, the upstair portion fell vacant, and the landlord occupied the same for different business, has held that, the above facts would also go to show
that there is no urgent need for obtaining possession of the premises from the tenants: unless the landlord deserved to get possession u/s 10(3)(e)
of the Act, eviction u/s 10(3)(a)(iii) of the Act cannot be ordered. But, in this case, the landlords have explained as to why they have not occupied
the I floor of the premises that fell vacant.
The same learned Judge, in the decision in M/s. Nataraja Trading Company v. Manohar (1995-2 M.L.J. 27), since another portion fell vacant
after the filing of the petition, the landlord leased out the same to the third party, in that case, has held that the requirement of the landlord was not
bona fide. But, the abovesaid decisions cannot be relied on to the facts of the present case.
Thanikkachalam, J., as he then was, in the decision in Nangayar Ammal Vs. Kanthi Rajan and others, has taken the very same view.
The learned counsel appearing for the petitioners has relied on the parallel proceedings and the notices, in support of his submission that if
really the landlords wanted the premises so urgently, they should have filed the petition immediately after the issue of notice. As stated earlier,
according to the learned counsel, the petition was filed only as a counterblast, after failure in their attempt to get more rent.
The learned counsel appearing for the petitioners, to show mat the intention of the landlord is not bona fide, has further submitted that though
the landlords occupied the I floor of the premises bearing Door No. 78, Sembudoss Street, Madras in 1985, they have not shifted their place of
business to the I floor of the present premises which fell vacant subsequently. According to him the landlords have not explained as to why they
have not shifted their business so. As stated earlier even in the notice dated 9.7.85 mated as Ex.P.-1 and in para 8 of the petition the landlords
have explained the reason that the I floor of the premises is not suitable for their business. That fact has not been specifically denied by the tenants
in the counter. In spite of the same, P.W.1 has spoken to in his evidence about the reason for non-occupation of the said premises. So it cannot be
said that the landlords have not explained as to why they have not occupied the portion which fell vacant in the premises in question. While
considering similar issue Ratnam, J., as he then was, in N.M.H. Rasheeda Bivi Vs. V.R. Sreepathy, has held as follows:-
Even according to the Appellate Authority these portions fell vacant some months prior to the filing of the application for eviction and, therefore,
the omission of the petitioners to occupy such portions as fell vacant prior to the initiating of proceedings for eviction would not really be relevant in
considering the bonofides of the requirement of the petitioner. One can understand, if after the application for eviction had been filed by the
petitioner some portions had fallen vacant and the petitioner had not chosen to occupy those portions, in which case the subsequent event of the
arising of the vacancy and the failure on the part of the petitioner to occupy the portions which had so fallen vacant may well be relied upon as
circumstances establishing lack of bona fides. Such is not the case here. The arising of the vacancy in the first floor and the second floor prior to the
filing of the application for eviction by the petitioner and her omission to occupy such portions as had fallen vacant would not under the
circumstances, in any manner establish that the requirement of the petitioner is not bona fide.
In the instant case, further shifting of the premises to Door No. 62 to the ground floor will also support the case of the landlords that they can
do better business in the ground floor.
While considering the right of the tenants Ramaprasada Rao, C.J., as he then was in P.M. Kuppusah v. Rajaham Sah (92 L.W. 165) has held
as follows:-
The Rent Controller, though not expressly, but by necessary implication, has also found that the tenant would not be hard-put, if he was asked to
vacate the portion. What was urged, however, was that the landlord could have occupied the portions which had by then fallen vacant, instead of
troubling the tenants. It is by now well established by a series of decisions of the Court which is not disputed either that it is not for the tenant to
dictate as to what portion the landlord should require for his own purpose.
While dealing with the similar issue, Thanikkachalam, J., as he men was in the decision in Natarajan v. V.M. Sundaram (Vol.106) (1990-2-
L.W. 595) has held that it is not for the tenant to say that the petition premises is neither suitable nor sufficient for the business conducted by the
landlord.
In the recent decision, in S. Mariappan v. Kadar Beevi (1997 L.W.141 ), S.S. Subramani, J., has held as follows:-
If the contention of the learned counsel for revision petitioner is accepted, even if it is proved by landlady that her son is not in possession of any
building and is occupying a rented premises, the eviction petition will have to be thrown out only on the ground that the landlady obtained
possession of some other building, which will meet the requirement of the son. That will amount to putting further restrictions on the right of the
landlady, to provide for the defendant member of the family. The said contention is therefore, rejected.
So, the submission of the learned counsel appearing for the petitioners that the non-occupation of the first floor of the premises has to be inferred
that the intention of the landlords is not bona fide cannot be sustained.
The learned counsel appearing for the petitioners has further submitted that only because of the fact that they failed in fair rent proceedings in
getting higher rent, the landlords have resorted to the eviction proceedings. Such submission cannot also be countenanced. Even pending the
revision the landlords issued a notice terminating the tenancy, without waiting for the final result of the proceedings and initiated the present
proceedings. Moreover, merely because the landlords have demanded higher rent for the premises in question, it cannot be said that the petition
seeking possession for carrying on the business of the children of the landlords is either mala fide or that the application for eviction is filed with an
oblique motive. Only on that ground alone it cannot be said that the landlords is not having bona fide intention.
The learned counsel appearing for the petitioners has also submitted that the landlords are having only a desire to occupy the premises in
question and they are not going to occupy the premises. According to him, if really they are having any urgency, they would have occupied the
vacant portion that ''had fallen vacant in 1985 itself. In support of his submission, the learned counsel has relied on the decision in Hameedia
Hardware Stores v. B. Mohan Lal Sowear (1988-2-S.C.C-513 = 1998-2-L.W. 1) wherein the Apex Court has held that mere desire is not
enough and the landlord should prove more than that to occupy the premises of his own for his business. The abovesaid decision was followed by
Thanikkachalam, J., as he then was in the decision reported in 1994(2) L.W. 152 cited supra. As already stated, though the landlords were in
need of the premises in question which is owned by them for doing the business of their children, they have explained the same in the petition and
evidence stating that they require the ground floor and not the I floor. Since the I floor alone fell vacant, we cannot expect the landlords to occupy
the I floor while their need is only the ground floor of the premises. In this case, it cannot be said that it is only a desire of the landlords to occupy
the premises in question and they are not going to occupy the same. As a matter of fact when they were able to get the ground floor to do their
business conveniently, they had shifted their place of business in 1989 to the premises bearing Door No. 62 Sembudoss Street, without even
waiting to occupy their own premises, for which they have initiated the present proceedings. So, the abovesaid submission of the learned counsel
cannot be sustained.
The learned counsel appearing for the petitioners has further submitted that though the notice was issued as early as in 1985 and the tenancy
was terminated, the landlords filed the petition only in 1987, which itself would show that there is no real need for them to occupy the premises in
question. According to the learned counsel, though the Rent Controller has dealt with the said fact in support of his conclusion, the Appellate
Authority has not at all appreciated the same. Merely because of the said delay, we cannot disbelieve the intention of the landlords. While
considering the similar issue, Ratnam, J., as he then was, in the decision in Rasheeda Bivi. N.M.H. v. V.R. Sree Pathy (96 L.W. 677) has held as
follows:-
The first contention of the learned counsel for the petitioner is that the authorities below were in error in declining to grant an order of eviction in
favour of the petitioner on the ground that she bona fide required the premises in the occupation of the respondent for her own use. Elaborating this
argument, the learned counsel submitted that the mere delay in instituting proceedings for eviction or the omission on the part of the petitioner to
occupy portions which had fallen vacant prior to the filing of the application for eviction cannot really be put against the petitioner to negative her
bona fide requirement. On the other hand, the learned counsel for the respondent would strenuously contend that the petitioner''s requirement was
not at all bona fide as she had not occupied either the first floor or the second floor when they fell vacant and, therefore, there was no use or charm
in the petitioner trying to occupy the ground floor with no ventilation or light. The inability of the petitioner to reside in the upstairs portion was
characterised as a myth.
In view of the above, merely because of the delay, the case of the landlords cannot be rejected. It is further submitted mat in the evidence R.W.1
has stated that the landlords have been carrying on the business in their own premises bearing door No. 7 Sembudoss Street, under the name and
style of Akbar Steel Corporation. But there is no cross examination regarding the same. So, while according to the learned counsel the landlords
have been carrying on their business in their own premises, they cannot go on ask the premises for their children. In support of his submission, the
learned counsel has relied on the decision in 83 L.W.696, wherein it has been held that for the benefit of one of the members of the family who is
already carrying on a business in the same premises, the landlord cannot ask for other portion of the premises on the basis that they are going to
expand the business. But in this case, that is not the fact.
Moreover, K.A. Swamy, C.J., as he then was, in Raju v. A. Ponnammal (1994-I-L.W. 622) has held as follows:-
Therefore the contention put forth by the Revision Petitioner-tenant that the landlady cannot seek possession of the premises in question for the
use and occupation of her son, because she is already in possession of the premises belonging to her, cannot be accepted as valid, because the son
of the landlady, for whose benefit the possession of the premises is sought is not in possession of a premises of his own and the landlady is not the
exclusive owner of the premises of which she is in occupation. Accordingly, point No. 1 is answered in affirmative"".
The children of the landlords for whom the building in question is sought are not doing any other business except the one mentioned in the
petition, which is a partnership business and, only for that business they are seeking the premises in question. Admittedly, they are not having any
other premises of their own. Hence the submission of the learned counsel cannot be sustained. While taking into consideration all the relevant
circumstances we have to come to the conclusion that the requirement of the landlords of the premises in question is nothing but bona fide and the
Appellate Authority is correct in holding that the eviction petition has to be ordered. I do not find any merits in this Revision.
In view of the above, this Revision is dismissed. No costs.
The learned counsel appearing for the petitioner requested time for vacating the premises. Six months time from today to vacate the premises by
the tenant is granted on a condition that the tenant has to file an affidavit giving an undertaking mat he will vacate the premises within the said period
and hand over the vacant possession without deriving the landlord to approach the Court for taking possession and such an affidavit will be filed on
or before 5th January, 1998. If the affidavit is not filed within the said period, the order of eviction will come into operation immediately.