A.S. Venkataraman vs A.V. Harikrishnan Naidu

K. Ravichandrabaabu, J.—The tenant is the revision petitioner. The respondent landlord filed R.C.O.P. No. 29 of 2001 against the

petitioner herein on the file of the District Munsif cum Judicial Magistrate, Ambattur, seeking for eviction of the petitioner on the grounds of willful

default and owners occupation. Learned Rent Controller dismissed the eviction petition on both grounds by order dated 30.11.2006. Aggrieved

against the same, the respondent landlord preferred an appeal in R.C.A. No. 6/2008 on the file of the Sub Court, Poonamallee. The Appellate

Authority, concurred with the order of the learned Rent Controller on the ground of willful default, however allowed the appeal and ordered

eviction of the petitioner herein on the ground of owner''s occupation. Challenging the said order of the Appellate Authority, the present civil

revision petition is filed before this Court. The landlord though filed eviction petition on the ground of willful default and owner''s occupation, his

application was rejected by both the authorities below in so far as the ground of willful default is concerned. Admittedly, the landlord has not

challenged the said finding rendered by both the authorities below and thus, the only issue arises for consideration in this civil revision petition is as

to whether the order of eviction passed by the Appellate Authority on the ground of owner''s occupation is valid and consequently, whether the

petitioner/tenant is liable to be evicted on that ground.

The respondent herein is the landlord and the petitioner herein is the tenant. The relationship between the parties as landlord and tenant is not in

dispute. The demised premise is a shop measuring an extent of 100 sq. ft. bearing Door No. 3/472, Valayapathi Salai, J.J. Nagar, Muggappair

East, Chennai-50. The petitioner herein was inducted as a tenant during the year 1996 on a monthly rent of Rs. 1,331/-.

Insofar as the ground of owner''s occupation is concerned, the respondent contended in the eviction petition that the demised premises is

bonafidely required for his unemployed daughter for starting a Computer Internet Center. It is also averred by the respondent that his son-in-law is

also a Computer Engineer and unemployed and as such, both his daughter and his son-in-law were not in a position to pay huge sums by way of

rental advance for taking building on lease for running a Computer Internet Center. Therefore, for providing a space for them to start such

computer center, the respondent herein wanted the above premises on the ground of owner''s occupation.

The petitioner herein resisted the said application and contended that the landlord is owning two more shops adjacent to the petition mentioned

property and that the space of 100 sq. ft. is not sufficient for running the computer center. He also contended that the daughter of the respondent is

not a qualified person for running a computer center and as such, there is no bonafide requirement on the part of the respondent/landlord.

The respondent/landlord in support of his claim on the ground of owner''s occupation marked Exs. P3 to P7 and also examined himself as P.W.

1 and his daughter as P.W. 2. The petitioner/tenant did not mark any exhibits and only examined himself as R.W. 1.

The learned Rent Controller rejected the petition for eviction by holding that the landlord did not file any documents to show that he had taken

steps to commence the business and the documents filed by him only show that the daughter of the landlord was qualified in computer applications.

The learned Rent Controller also taken note of fact that the landlord is the owner of two more shops lying adjacent to the petition mentioned

premises, out of which one shop was vacated by the tenant therein after filing the present RCOP, which the landlord could have used for the

purpose of his daughter''s business.

When the order of the learned Rent Controller was challenged before the Appellate Authority, the bonafide requirement of the landlord was

considered by the Appellate Authority and it was found that the landlord was having intention to start business for his daughter and son-in-law and

the business could be started only after occupation of the shop as they were unemployed. It is also found by the Appellate Court that the tenant

cannot dictate terms to the landlord to occupy a particular shop and accordingly, it was found that letting of two shops to other tenants will not

affect the right of the landlord to evict the tenant herein.

Challenging the said order of the Appellate Authority, the learned counsel appearing for the petitioner submitted that the landlord has not proved

the bonafide requirement on the ground of owner''s occupation. When the adjacent shop was vacated by another tenant after filing of the present

RCOP, the landlord has not used the said shop and continued the present eviction proceedings which shows that there is no bonafide on his part.

When all the three shops are in equal size of 100 sq. ft. each, the landlord cannot say that the petition mentioned property alone is suitable for his

own occupation. The learned counsel also submitted that the Exs. P2 to P7 marked on behalf of the landlord only shows that the landlord''s

daughter was qualified in computer applications and that itself cannot be taken as a sufficient proof to show that she is intending to start a business

viz., Computer Training Center. Thus, the learned counsel submitted that in the absence of any other materials, the learned Rent Controller has

rightly rejected the eviction petition whereas the Appellate Authority on an erroneous application of facts and law, has ordered eviction.

Per contra, the learned counsel appearing for the respondent/landlord submitted that the tenant/petitioner herein was inducted as tenant in the

year 1996 and he is continuously there in the property for the past 17 years. The landlord is 67 years old and a retired Government driver and in

fact, he has taken two shops for running his own business after retirement and other shop which is in occupation of the petitioner is needed for

running the Computer Training Center for his daughter and son-in-law. He further submitted that the landlord had proved the bonafide before the

Rent Controller by adducing sufficient evidence and the very fact that the daughter of the landlord is a qualified person in computer applications,

the intention to start the business is proved by the landlord, also by examining his daughter as P.W. 2. The Rent Controller has not considered

these exhibits marked by the landlord in a proper and perspective manner. He also submitted that the adjacent shop became vacant only after filing

of this RCOP and as such, the said fact cannot be put against the landlord to reject his claim. Moreover, it is for the landlord to choose the portion

of his choice either to reside or to do the business and the tenant cannot dictate terms on this aspect. In support of his submission, the learned

counsel for the respondent relied on the following decisions of this Court,

(i) T. Sivakumar Vs. K. Prabhakaran,

(ii) R. Murugan Vs. M.O.M. Abubucker,

(iii) B. Kishore, Proprietor, ""B Kishore Auto Spares"" Vs. D. Maragathavalli, and

(iv) V Radha H. Joshi, Sathish H. Joshi and Megna H. Joshi represented by mother and guardian Vs. Pioneer Surgical Company,

Heard the learned counsel on either side and perused the orders of the courts below as well as the materials placed before me in the typedset

of papers and also considered the case laws cited by the learned counsel appearing for the respondent.

The only issue to be decided in this case is as to whether the landlord''s claim for eviction of the petitioner herein from the petition mentioned

premises on the ground of owner''s occupation is bonafide and whether such bonafide requirement entitles the landlord to evict the tenant.

The admitted facts between the parties are as follows:

The respondent is the owner of the petition mentioned premises and two more adjacent shops. The tenant was inducted as early as in the year

1996 for a monthly rent of Rs. 1,331/- and the tenancy is being continued all these years. It is also admitted that the landlord''s daughter had

obtained Senior Grade Certificate in English Typewriting under Ex. P3, and completed Diploma in Computer Application as found under Ex. P1. It

is also seen that she was issued with Experience Certificate under Ex. P7 as well as Ex. P6 by some private computer training centers. Under Ex.

P5, it is shown that P.W. 2 has also completed Foxpro programming. Ex. P6 shows that she has undergone training in Top publishing. Considering

all these undisputed exhibits marked by the landlord, the Appellate authority came to the conclusion that P.W. 2 has completed studies on

computer applications and she is having experience in starting a Computer Internet Center. Under Ex. P7, an Experience Certificate was also

issued to P.W. 2 as a Data Entry Operator. Apart from marking these documents, the landlord''s daughter was also examined as P.W. 2, who has

spoken in her deposition that she is unemployed and married to one Yuvaraj, who is also a Computer Engineer and unemployed person. She has

specifically stated during her examination that the petition mentioned premises is the first shop in which only she wanted to do the Computer

Center. When the landlord has marked these documents and also examined his daughter as P.W. 2 and established the bonafide requirement,

without there being any contra facts or evidence, I failed to understand as to how the learned Rent Controller has rejected the eviction petition on

the ground of owner''s occupation also. When admittedly both P.W. 2 and her husband were unemployed and both of them are having the

requisite qualification to run a Computer Internet Center, the intention to start the business is proved more than what is required with sufficient

materials and therefore, the bonafide requirement of the landlord having been proved, the order of eviction passed by the Appellate Authority on

the ground of owner''s occupation, is perfectly in order and does not warrant any interference.

No doubt, an adjacent shop became vacant subsequent to the filing of the present RCOP. According to the landlord, the petition mentioned

premises is the first shop in which alone they wanted to start the business. Therefore, the factum of the adjacent shop became vacant during the

pendency of the present RCOP, is in no way has any relevance or affect the right of the landlord in seeking eviction against the petitioner/tenant. It

is well settled that the landlord is the person who has every right to choose which of the portion or shop is fit for his own occupation either for

residential or non residential purpose and the tenant cannot dictate terms on this aspect. Being the owner of the premises and having satisfied his

bonafide requirement, his wish and say are final in choosing the premises and the tenant has got no say in this.

In a case reported in T. Sivakumar Vs. K. Prabhakaran, , the learned single Judge of this Court has considered similar issue almost on similar

set of facts and found that though the landlord or the person for whom the eviction sought for, is not already carrying on business the requirement

on the ground of own use and occupation can be ordered, if steps have been taken by the landlord for commencement of the business. At this

juncture, it is to be noted that it is not necessary that in all the cases the landlord has to prove or show some materials that he has taken steps to

commence the business. Such requirement depends upon the nature of each business. What is required to be seen most importantly is that as to

whether the requirement is a bonafide requirement and if such bonafide is proved by material documents the landlord should succeed in his

attempt. The bonafide may be proved even by showing the intention and the qualification or eligibility to start the business. When such intention

coupled with eligibility is established, then the bonafide of the landlord has to be held proved and mere non preparation for commencement of the

business cannot be put against such person in all the cases. In certain business, even the pre-commencement preparation could be done only after

occupying the premises. Some would venture in large scale business. Some would intend to do petty business. Whether pre-commencement

preparation is required or not is to be considered and decided based on the facts and circumstances of each case and there cannot be any

universal formula for all the cases. Therefore, in this case when the landlord has proved the bonafide with sufficient materials by marking Exs. P3 to

P7 and also by examining P.W. 2 which evidence having not been rebutted by adducing any contra evidence by the tenant, I find that the landlord

is entitled to an order of eviction.

While coming to the other decisions relied on by the learned counsel for the respondent reported in B. Kishore, Proprietor, ""B Kishore Auto

Spares"" Vs. D. Maragathavalli, and R. Murugan Vs. M.O.M. Abubucker, , in both the decisions, the learned Judge has found that it is open to the

landlord to choose which building he would require for occupation of his business and the Act does not say that if the landlord owns more than one

non residential building, he would be disentitled to an order of eviction. Likewise, in R. Murugan Vs. M.O.M. Abubucker, , R. Murugan vs.

M.O.M. Abubucker, also the learned Judge has found that it is not for the tenant to dictate terms where and how the shop proposed by the

landlord is to be run. In support of such conclusion, the learned Judge relied on the decision of the Hon''ble Supreme Court reported i Ragavendra

Kumar Vs. Firm Prem Machinary and Co., in which it is categorically held that it is a settled position of law that the landlord is the best judge on

his requirement for residential or business purpose and he has got complete freedom in the matter. On the similar line, the another decision of the

learned single Judge reported in Radha H. Joshi, Sathish H. Joshi and Megna H. Joshi represented by mother and guardian Vs. Pioneer Surgical

Company, is also relied on by the learned counsel for the respondent.

The above decisions of this Court following the decision of the Hon''ble Supreme Court undoubtedly show that the tenant''s contention that the

landlord failed to occupy the adjacent shop which became vacant subsequent to the filing of the present RCOP, has to be rejected, as it is not for

him to say as to which of the portion in which the landlord has to run his business. After all, the owner of a premises must be allowed to occupy a

portion of his own choice either to reside or to run his business. Considering all the above facts, I find that the order of the Appellate Authority in

ordering eviction is just and proper and does not warrant any interference. Consequently, the civil revision petition is dismissed and the order of the

Appellate Authority is confirmed. The petitioner/tenant is granted three months time to vacate and hand over vacant possession of the petition

mentioned premises to the landlord/respondent. No costs. The connected miscellaneous petition is also dismissed.