Arumugha Nattar vs Hussain Moideen Khan

T. Venkatadri, J.—The petitioner in this petition is the landlord who filed an application for eviction of the respondent on the ground that he

required the suit shop for the purpose of carrying on a wholesale business in paddy and grains which he had started before the purchase of the

premises. The allegations in his petition are following. He is a native of Cuddalore. He has two brothers one of whom is: residing in Cuddalore and

the other in Chidambaram. He is having a flourishing, trade in Singapore. His wife is also a native of Cuddalore and he married her in 1954. His

brother is doing business at No. 182. West Car Street, Chidambaram. In order to settle his family he has purchased a house at Chidambaram for

Rs. 23,00a and the shop from which he seeks to evict the respondent for Rs. 9,100. It is his desire that he should carry on a business of his own in

that shop at Chidambaram. He further alleged that there was wilful default on the part of the respondent in the payment of arrears of rent.

When the petition came on for hearing before the Rent Controller, he found that the building from which eviction is sought is a non-residential

one, that there was enough documentary evidence to show that the petitioner was carrying on business on the date of the application, that the

petitioner was not possessed of any Other non-residential building of his own and that his claim was bona fide. The Rent Controller accordingly

allowed the petition for eviction.

But on appeal, the learned Subordinate Judge of Cuddalore took a different view. The reasons given by him for not accepting the case of the

petitioner are the following. The documentary evidence such as account books varukku book, etc., relied on by the landlord are all faked ones and

much reliance cannot be placed on them. The application for eviction was not bona fide, because considering the dimensions of the shop in

question, it is highly doubtful whether it will be sufficient to locale a wholesale business in paddy and grains. The landlord has invested only a sum of

Rs. 5,000 and the turnover of the business is very small. The name board of the business is written in chalk. The landlord has only a part-time

clerk, for the business. The stock of paddy kept by him was also low. The account books and other books relied on by the landlord were

produced only at a very late stage, long after the filing of the counter-statement of the tenant. For all these; reasons the learned Subordinate Judge

reversed the findings of the Rent Controller r allowed the appeal and dismissed the petition for eviction.

When the matter came up in revision, the learned District Judge accepted the findings of the Subordinate Judge and observed that it is a matter

for suspicion that the petitioner would have invested only a sum of Rs. 5,000 when admittedly he had purchased a house for over Rs. 23,000 and

also the suit shop for about Rs. 9,100 and that the circumstances would indicate that the plea of the petitioner that he intended to do wholesale

business was not quite true. He accordingly dismissed the revision petition and confirmed the order of the Subordinate Judge

It is the common case that the petitioner is a native of Cuddalore. He has got a brother who is residing and carrying on business at

Chidambaram. The petitioner is anxious to settle in Chidambaram and do business there and with the view he had purchased a house at

Chidambaram and a shop for Rs. 9,100 from Rohya Bivi in April, 1958. He informed the respondent about the purchase of the suit shop-by him

and asked him to vacate and surrender possession of the shop. As the respondent was evading, the petitioner also gave a notice to the respondent

on 12th, June, 1958 calling upon him to deliver possession of the shop to enable him to do business. He registered his name in the office of the

Commercial Tax Officer as a person intending to do wholesale business in paddy and grains. He obtained a. licence in the month of August, 1958.

For the time being he is carrying on business in a portion of his brother''s house. In the course of his business he had maintained-bill books

(Exhibits A-3and A-4), chitta (Exhibit A-5) and ledger (Exhibit A-7)-Exhibit A-8 is the receipt for payment of registration fee for the year 1958-

59 in the office of the Assistant Commercial Tax Officer. Exhibits A-11 and A-12 are receipts for payment of sales tax by the petitioner. Exhibit

A-21 is the cash bill for the purchase of paddy. Exhibit A-22 is the account book of the petitioner for purchases effected. These are the documents

produced by the petitioner to show-that he is carrying on business in paddy from 14th April, 1958. The learned Subordinate Judge did not place

any reliance on these documents, but agreed with the-contention of the tenant that they were got up for the purpose of this case to show that the

petitioner was carrying on business on the date of the application for eviction.. He also did not believe the case of the petitioner that he was

carrying on wholesale-business since the amount invested as capital in the business was only Rs. 5,000 and the turnover of the business was also

small. The learned District Judge did. not consider in detail the documentary evidence in the case and confirmed the findings of the Subordinate

Judge holding that there was no sufficient material for interfering with the order of the Subordinate Judge in revision. It is true the powers of the

revision Court are limited. In an unreported decision in C.R.P. No. 1420 of 1954 Rajagopala Ayyangar, J., has enumerated certain conditions

which would justify interference by the revisional authority with a finding on fact of the subordinate authority. The learned Judge pointed out that a

revisional authority cannot normally interfere with a finding of fact unless (a) there are no other materials on which such a finding could be based or

(b) the finding has been reached by a consideration of irrelevant or inadmissible matter, or (c) it is so perverse that no reasonable person could

have reached that conclusion or (d) the finding has been reached by an erroneous understanding of the law applicable to the matter. This decision

has been cited with approval by Rajamannar, G.J., in Sasivarpa Thevar v. Ponnu (1957) 1 M.L.J. 158. where the learned Chief Justice expressed

the view that a Judge or a Tribunal exercising revisional jurisdiction under such an enactment as file Madras Buildings (Lease and Rent Control)

Act is not ordinarily competent to interfere with the findings of fact arrived at by an inferior Tribunal. But, in considering a similar provision in a

Punjab Act in Moti Ram Vs. Suraj Bhan and Others, the Supreme Court has held that the High Court has jurisdiction to examine the legality or

propriety of an order of an inferior Tribunal. In that case, the Supreme Court observed:

The revisional power conferred upon the High Court u/s 15(5)(of the Punjab Act) is wider than that conferred by Section 115 of the Code of Civil

Procedure. u/s 15(5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and the would clearly justify the

examination of the propriety or the legality of the finding made by the authoties in the present case about the requirement of the land lord...

This decision has been followed by Anantanarayanan J., in an unreported decision in C.R.P. No. 2570 of 1960, where the learned Judge held that

the interference in revision by the District Judge with the order of the Subordinate Judge was within the ambit of Section 12-B of the Act and not

vitiated by any lack of jurisdiction.

In the present case, therefore, the learned District Judge was not justified in summarily disposing of the revision petition without referring to any

document in the case on the ground that he could not interfere with the findings of facts arrived at by the Subordinate Judge. The reasons given by

the Subordinate Judge for not accepting the case of the landlord are not convincing. The main requirements to be satisfied by the landlord u/s 7(3)

(iii) of the Act are that he should be carrying on a business on the date of the application for eviction and his claim should be bona fide. It is

irrelevant to consider whether he has invested Rs. 5,000 or Rs. 50,000. It is equally irrelevant to consider whether the turnover of the business is

small or large. The petitioner has very recently started business. He has not settled in business. Naturally he would like to be very cautious in doing

wholesale business and may not have invested a large amount initially, As pointed out by Panchapakesa Ayyar, J. in K.S. Nataraja Achari Vs.

J.K. Balasubramaniam, . carrying on a business need not necessarily mean that the landlord shall have begun the trade vigorously and it would be

enough, if he had made all the preparations for the same. Similarly in Venkataswami & Sons v. Virabhadraswami (1955) An. W.R. 695.

Viswanatha Sastri, J., held:

The phrase ''carrying on a business'' in Section 7(3)(a)(iii) has no fixed connotation and its meaning and effect have to be ascertained from the

context in which it is used, the nature of the business and the transaction incidental to it...There is no yardstick by which we can measure the range

of activities necessary to constitute the carrying on of business. A business might take sometime for its being organised and set on foot as a trading

venture.

There is ample evidence on record to show that the petitioner had come down to Chidambaram with a view to settle his family there and also to

carry on a wholesale business in paddy and grains and that he has made all the necessary arrangements and preparations for carrying on the

business and he is actually carrying on the business in a portion of his brother''s house. It will be too much to assume that he would have

manoeuvred to get a licence for starting the business in paddy and grains and would have printed bill pooks in his name and obtained the signatures

from various customers for the goods supplied to them and maintained the various account books only for the purpose of pretending that he was

carrying on a business of his own on the date of the application for eviction and complying with the requirements of the Act. We cannot also attach

much significance to the fact that the account books and other books were produced only on 20th October, 1958. The petition was filed on 21st

July, 1958 and the account books and connected records were produced on 20th October, 1958. The petition came up for hearing on 6th

November, 1958, and evidence was actually recorded on that date. The fact therefore remains that long before the hearing of the petition, the

petitioner had filed all the relevant records. I do not think that any adverse inference can be drawn by reason of the delay in producing the account

books. Taking all the circumstances into consideration, I am satisfied that the application of the petitioner is bona fide one and the petitioner

required the suit shop for carrying on his business. I am therefore inclined to agree with the findings of the Rent Controller and uphold the order of

eviction passed by him.

The revision petition is therefore allowed and the order of the District Judge is set aside and that of the Rent Controller is restored.

It is represented that the respondent is carrying on business in the suit shop for the last 20 years. I think that it will no be proper to direct him to

vacate the premises immediately and that sufficient time should be given to him to vacate the premises, so that he may secure alternative

accommodation for continuing his business. I accordingly grant him time till 1st May, 1964 to vacate the premises. No order as to costs in this

C.R.P.