Batco Roadways vs Mrs. A. Radhammal

V. Ramasubramanian, J.—This Civil Revision Petition arises out of concurrent orders of eviction passed by the Rent Controller and the

Appellate Authority.

I have heard Mr. V. Raghavachari, learned Counsel for the petitioner and Mr. M.S. Krishnan, learned Senior Counsel for the respondent.

The respondent, who is the landlady of the building at No. 21, Muthumari Chetty Street, Chennai-1, filed a petition in RCOP No. 2713 of 2007

on the file of the Rent Controller, Chennai, u/s 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, seeking eviction of the

petitioner on the ground that she wanted the premises for additional accommodation, for the purpose of her son''s business. Her case in the

Eviction Petition was that the Northern side ground floor portion of the above building measuring about 442 sq. ft., was let out to the petitioner

herein for non-residential purposes of running a lorry transport business and that her son A. Chellappan, carrying on a Tea stall business in a rented

premises of less than 100 sq. ft., measurement at No. 195, Thambu Chetty Street, Chennai-1, wanted to shift to the portion in question so that he

can expand his Tea stall business with a snack bar.

The petitioner resisted the Eviction Petition, just denying all the allegations and contending that the motive behind the Eviction Petition was to

increase the rent.

Before the Rent Controller, the landlady''s son was examined as PW.1 and he filed the following documents:

The letter of authorisation from the landlady as Ex.P.1.

The rental receipts as Ex.P.2 series.

The copy of the plaint in O.S. No. 8298 of 1995 as Ex.P.3.

The receipt issued by Chennai Corporation to the landlady''s son as Ex.P.4.

The photograph and negative of the Tea stall ""Sri Sastha Snacks"" as Ex.P.5.

The letters written by the tenant to the landlady as Ex.P.6 series.

The letter written by the tenant to the landlady as Ex.P.7.

One Mr. M.H. Patni, who claimed to be a partner in the petitioner-firm (tenant) earlier and claimed to be a Manager later, was examined as

RW.1 and he filed only the letter of authorisation given to him as Ex.R.1. Apart from the same, the petitioner-tenant did not file any document.

On an analysis of the oral and documentary evidence, the Rent Controller found that the respondent-landlady''s son was in fact carrying on a

Tea stall business in a rented premises at No. 195, Thambu Chetty Street, Chennai-1. Though the petitioner-tenant had chosen to deny this in their

counter, their witness RW.1 admitted in cross-examination that there was a Tea stall by name ""Sri Sastha Tea Stall"" at No. 195, Thambu Chetty

Street, Chennai-1. But he claimed that he did not see the landlady or her son in the Tea stall. But the rental receipts filed by the landlady as Ex.P.2

series, established that the landlady''s son was a tenant in respect of No. 195, Thambu Chetty Street, Chennai-1. The challan issued by the

Corporation in the name of the landlady''s son (Ex.P.5) and the photograph filed as Ex.P.6, were accepted by the Rent Controller. Therefore the

Rent Controller concluded that the landlady''s son was carrying on business in a rented premises and that the landlady or her son did not own any

building other than the petition-building.

During cross-examination of RW.1, he also admitted that the Tea stall in Thambu Chetty Street, would be only about 100 sq. ft., and that he

had seen people sitting outside the Tea stall on the pavement and eating snacks. This admission of RW.1 corroborated the evidence of PW.1 that

due to lack of adequate space in the rented premises where he was running a Tea stall, the customers were eating snacks outside the stall, inviting

the wrath of the police.

The plaint in O.S. No. 8298 of 1995, filed as Ex.P.3, showed that the premises in which the landlady''s son was running a Tea stall was owned

by a temple and that they had already instituted proceedings for eviction of the landlady''s son from the place. Moreover, Ex.P.6 series established

that the petitioner-tenant had an Office cum Godown at No. 16, Govindappa Naicken Street, and a Godown at No. 29/2, Vepery High Road,

and an Office at No. 19, Meeran Lebbai Street, Chennai-1. Therefore, the Rent Controller found that the relative hardship caused to the

petitioner-tenant in ordering eviction would be less than the hardship to the landlady in not ordering eviction.

Finding the oral and documentary evidence so overwhelmingly in favour of the respondent-landlady, the Rent Controller ordered eviction by a

judgment dated 24.6.1999. The petitioner-tenant filed an appeal in RCA No. 558 of 1999 and raised an additional contention that another tenant

in the same petition-building, carrying on Tea stall business had vacated his portion, and that the same was lying vacant. Therefore, the petitioner-

tenant prayed for taking note of the subsequent event and for setting aside the order of eviction. Before the Appellate Authority, the petitioner-

tenant also got an Advocate Commissioner appointed to inspect the petition-building and to submit a report. Based on the report, the petitioner

contended that there was another vacant portion which the landlady''s son could occupy. But the Appellate Authority concurred with the findings

of the Rent Controller and confirmed the order of eviction. It is against these orders that the petitioner-tenant has come up with the present Civil

Revision Petition.

Finding that he is on a weak wicket on facts, Mr. V. Raghavachari, the learned Counsel appearing for the petitioner-tenant, focused his

submissions on (i) the maintainability of the Eviction Petition u/s 10(3)(c) of the Act (ii) the bona fide of the landlady in seeking eviction (iii) the

principles for determining comparative hardship and (iv) the subsequent event pleaded before the Appellate Authority. I shall take up these

submissions one after another.

MAINTAINABILITY

It is the contention of the petitioner-tenant that the respondent-landlady is residing in the first floor portion of the petition-building and that a

person in occupation of a residential portion cannot seek the eviction of a non-residential tenant, u/s 10(3)(c) on the ground of additional

accommodation for non-residential use. This contention is based upon the difference maintained in the Act between Sections 10(3)(a)(iii) and

10(3)(c) of the Act.

In support of the above contention, the learned Counsel for the petitioner relied upon the following decisions:

Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others,

Subramaniam Shanmugham Vs. M.L. Rajendran and Others,

Kanniammal Vs. Chellaram,

P.M.S. Pakkir Mohideen v. K. Susila 2006 (2) L.W. 912

Before considering the ratio laid down in the above decisions, it is necessary to have a look at Sections 10(3)(a) and 10(3)(c), for the purpose

of ready reckoning. Therefore they are reproduced as follows:

10(3)(a) A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in

possession of the building:

(i) in case it is residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or

any member of his family is not occupying a residential building of his own in the City, Town or Village concerned;

(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for

his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the City, Town or

Village concerned which is his own;

(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he

or any member of his family is carrying on, a non-residential building in the City, Town or Village concerned which is his own;

Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply

under this clause before the expiry of three months from the date on which the instrument was registered:

Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this

clause:

(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.

10(3)(c) A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in

Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put

the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is

carrying on, as the case may be.

In Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, , the landlady was occupying the first floor of the petition-building for

residential purposes. The ground floor was let out for non-residential purposes. When the landlady''s son-in-law and grandson, to whom the

property was bequeathed by the landlady, sought eviction u/s 10(3)(c), it was contended among other things that u/s 10(3)(c), a residential portion

can be sought only for residential purposes and a non-residential portion can be sought only for non-residential purposes and not vice versa. While

testing the said contention, the Supreme Court laid down in paragraph-15, the manner in which Section 10(3)(c) has to be viewed. The relevant

portion of paragraphs-15 and 16 of the said decision reads as follows:

The proper way of distinctively viewing the section should be as under:

A landlord who is occupying only a part of a residential building may notwithstanding anything contained in Clause (a), apply to the Controller for

an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he

requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.

A landlord who is occupying only a part of a non-residential building may notwithstanding anything contained in Clause (a), apply to the Controller

for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof,

if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.

If Clause (3) is construed in this manner there can be no scope for a contention that a landlord can seek additional accommodation for

residence only if the building is a residential one and likewise he can seek additional accommodation for business purposes only if the building is a

non-residential one.

While elaborating the reasons for the view expressed in paragraphs-15 and 16, the Supreme Court stated as follows in paragraph-17:

Since the requirement of additional accommodation by the landlord is with reference to the manner of his user of that part of the building which is in

his occupation it is the nature of that requirement that should prevail over the manner of user of the tenant of the portion leased out to him. In other

words, the additional accommodation is for extending the user of the building by the landlord to the leased portion for the same purpose for which

the portion not leased out is being put to.

But the above observations in paragraph-17 cannot really be taken to be the ratio laid down in Balaganesan Metals case. As seen from

paragraphs-2 and 3 of the said decision, the question that was decided by the Supreme Court in that case was whether the purpose for which the

landlord sought eviction should coalesce with the user of the leased portion by the tenant. In other words, the Supreme Court was answering the

question as to whether a landlord can seek eviction of a non-residential tenant only if he needed the premises for non-residential purposes and seek

eviction of a residential portion only if he needed the same for residential purposes. The question whether the additional accommodation should

also be for the same purpose for which the already occupied portion was being put to use by the landlord, was not raised in Balaganesan Metals

case.

Interestingly, in Balaganesan Metals case, the Supreme Court approved the ratio in K. Parasuramaiah''s case, decided by the Andhra Pradesh

High Court. This is seen from paragraph-23 of the decision in Balaganesan Metals case, which is extracted as follows:

In the light of our conclusion we approve the ratio in K. Parasuramaiah Vs. Pokurl Lakshmamma, and disapprove the ratio in Thirupathy v.

Kanta Rao ILR (1981) Mad 128 (supra)

In K.Parasuramaiah''s case, a Division Bench of the Andhra Pradesh High Court laid down two principles viz., (i) that the landlord occupying a

part of the building, whether residential or non-residential, can seek eviction of a tenant occupying another portion, whatever may be his

requirements whether residential or non-residential and (ii) that the landlord can always readjust his requirements by asking the tenant to vacate the

portion in his occupation if he bona fide requires the premises for additional accommodation whether residential or non-residential. Therefore, I do

not think that Balaganesan Metals case supports the contention of the petitioner that the additional accommodation should be for the same purpose

for which the existing accommodation is used by the landlord.

In Subramaniam Shanmugham Vs. M.L. Rajendran and Others, , the Supreme Court reiterated the decision in Balaganesan Metals case,

though a plea was made for reconsideration of the said decision. In this case also, it was not laid down as a proposition of law that the landlord

seeking additional accommodation should seek the tenanted portion only for the same purpose for which the portion in his occupation is also being

used.

Heavy reliance is placed, of course justifiably, by Mr. V. Raghavachari, learned Counsel for the petitioner, in the decision of the Supreme

Court in Kanniammal Vs. Chellaram, . It was held in paragraph-6 therein as follows:

The phraseology employed by the Legislature in framing Section 10(3)(c) and the use of non obstante clause therein make it clear that Section

10(3)(c) overrides the provisions of Section 10(3)(a)(i) and (iii). The latter provisions, i.e. 10(3)(a)(i) and (iii) have two in-built restrictions, viz., the

landlord seeking eviction of a tenant thereunder should not be occupying a building of his own, and secondly, the nature of user of the leased

property by the tenant must correspond to the nature of the requirement of the landlord. The use of the words ""requires additional accommodation

as qualifying ""for residential purpose or for purpose of a business which he is carrying on"" indicates that u/s 10(3)(c) the requirement for additional

accommodation must be for the same purpose for which the part of the building in occupation of the landlord is being used. If a landlord is

occupying only a part of a residential building he may seek ejectment of tenant for his requirement of additional accommodation for residential

purpose though the tenancy premises are being used by tenant for non-residential purpose. Similarly, a landlord who is occupying only a part of a

building for non-residential purpose may have the tenant evicted if he requires additional accommodation for non-residential purpose it being

immaterial that the tenant is occupying a part of the premises for residential purpose. Since the requirement of additional accommodation by the

landlord is with reference to the manner of his user of that part of the building which is in his occupation it is the nature of that requirement that

should prevail over the manner of user of the tenant of the portion leased out to him. In other words, the need for additional accommodation is for

extending the user of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used. It is

not the requirement of Section 10(3)(c) that the nature of the requirement of the landlord and the nature of the user of the leased portion by the

tenant should coalesce.

Interestingly, the above decision in Kanniammal''s case, did not arise u/s 10(3)(c). It was a case, as seen from paragraphs-2 and 3 of the

above decision, where the landlady was admittedly occupying a portion of the building along with her three sons, for residential purposes. The

tenant was in one portion of the building using it for non-residential purposes. The landlady wanted the tenanted portion for the non-residential

purpose of establishing a car air-conditioning business for her son. Since the landlady was occupying one portion of the same building for

residential purposes and also since she required the tenanted portion (a non-residential portion) for non-residential purposes, she filed the petition

for eviction u/s 10(3)(a)(iii). Though the Rent Controller and the Appellate Authority ordered eviction, the High Court reversed the order of

eviction on the ground that eviction ought to have been sought only u/s 10(3)(c) and not u/s 10(3)(a)(iii). But the Supreme Court reversed the

decision of the High Court on the ground that the case will not be covered by Section 10(3)(c) but would be covered only by Section 10(3)(a)(iii).

While doing so, the Supreme Court referred to with approval, the decision in Balaganesan Metals case.

Following the decision of the Apex Court in Kanniammal''s case, S.R. Singharavelu, J., also held in P.M.S. Pakkir Mohideen v. K. Susila

2006 (2) LW 912, that if the landlord using a portion for residential purpose wants another portion of the said premises under occupation of the

tenant for non-residential purposes, then the landlord has to proceed u/s 10(3)(a)(iii) for owner''s occupation and not u/s 10(3)(c) which deals with

the additional accommodation for the existing usage of the landlord and that in the same way if the landlord is in occupation of a portion of the

premises for non-residential purpose and wants to evict the tenant for residential purpose, then also 10(3)(a)(iii) shall be resorted.

On a cursory reading of the decision of the Supreme Court in Kanniammal''s case, one may tend to think that the case on hand is squarely

covered by the same and the orders of eviction passed by both the Courts deserve to be set aside. But a closer scrutiny of the pleadings and the

evidence on record would show that there are certain distinguishing features in the present case. They are as follows:

(a) In Kanniammal''s case, it appears that there was a clear admission/finding that the landlady and her three sons were using another portion of the

same building for their residence. There was also an admission that the tenant was using the portion let out to him for non-residential purposes and

the landlady required that portion for non-residential purposes. But in the case on hand, it is not borne out by the averments in the petition for

eviction filed by the landlady before the Rent Controller that she was using the remaining portion of the building (not let out portion) for her

residence. The long cause title in paragraph-1 of the petition alone contains a reference to residence. In the entire body of the petition for eviction,

there is no indication of the use to which the landlady was putting the portion in her occupation. Even in the counter filed by the tenant, it was not

contended by him that the landlady was using her portion for residential purposes and that therefore her requirement of the non-residential portion

for non-residential purposes would not come u/s 10(3)(c). Except a vague statement in paragraph-8 of the counter that the necessary conditions

for additional accommodation are not satisfied, the tenant did not plead that the landlady was using her portion for residential purposes and that

therefore, she cannot maintain a petition u/s 10(3)(c) for non-residential purposes. Even in the entire deposition of PW.1, there is no indication that

the portion in the occupation of the landlady was put to residential use. PW.1 was cross-examined at great length by the counsel for the tenant. But

unfortunately, not a single question nor even a suggestion was put to him to show that the portion in the occupation of the landlady was put to

residential use. On the other hand, it was established by the counsel for the tenant, during cross-examination of PW.1, that the entire building

comprised of both residential and non-residential portions and that the landlady''s son vacated a residential portion in his occupation and let it out

three years ago to a residential tenant. It was only in the chief-examination of RW.1 that a statement was made that the landlady was residing in the

first floor and the landlady''s son was residing in the ground floor. But it was not with reference to a pleading made in the counter. It is needless to

point out that no amount of evidence could be accepted to prove something that was not pleaded.

Thus, the pleadings and the evidence show that the landlady was in occupation of one portion of the same building, but the purpose of such

accommodation, whether residential or non-residential, was not focused by both parties. In the absence of a specific pleading by the tenant that the

landlady was using her portion for residential purposes and that therefore she cannot maintain a petition u/s 10(3)(c) for non-residential use, it is not

possible for this Court, sitting in revision, to upset the concurrent orders of eviction passed by both the Courts below, by applying the ratio in

Kanniammal''s case. After all, every principle of law has to be applied to the facts of the case on hand. Since the facts are not borne out in the case

on hand, to fit into the ratio decidendi in Kanniammal''s case, it is not possible to set aside the orders of eviction.

(b) Even assuming for a minute that the landlady was occupying a residential portion at the time of institution of the petition for eviction and that

consequently she was barred from maintaining a petition u/s 10(3)(c), seeking additional accommodation for non-residential purposes, the bar did

not continue for long. During cross-examination of PW.1, it was suggested to him by the learned Counsel for the tenant that one other portion in

the same building had been let out to ""Karthik Tea Stall"" and that the landlady vacated the Tea Stall and was keeping the same in her custody.

RW.1 (examined on behalf of the tenant) also asserted in his chief-examination that one portion in the ground floor of the same building was in the

occupation of a tenant running a Tea Stall by name ""Karthik Tea Stall"" and that they vacated the place one month before, in view of the fact that

the business did not prosper. RW.1 also asserted that after Karthik Tea Stall vacated the portion in their occupation, the landlady was keeping the

same vacant in her possession.

As a matter of fact, the learned Counsel for the tenant vehemently argued that Karthik Tea Stall was vacated after the institution of the present

proceedings and that the same being a subsequent event, can be taken note of by this Court, in view of the decision of the Apex Court in

Pasupuleti Venkateswarlu Vs. The Motor and General Traders, . I agree with the learned Counsel for the petitioner/tenant that in view of the said

decision of the Supreme Court, a revisional Court is entitled to take note of subsequent events. The subsequent event pleaded by the tenant was

that a non-residential portion in the occupation of Karthik Tea Stall had been vacated after the institution of the present proceedings and that the

said portion was in the occupation of the landlady. In order to establish this, the petitioner/tenant took out an application in M.P. No. 199 of 2006,

during the pendency of the Rent Control Appeal, for the appointment of an Advocate Commissioner. The Appellate Authority appointed a

Commissioner and the Commissioner filed a report. As per the report, there was a passage very close to the godown on the Southern side. The

Commissioner found that adjacent to the passage, on the Southern side of the building, there was a room measuring a length of 21'' 7"" and a width

of 10'' 2"" and that there was a table with three chairs and a rack with some books. This was the place which Karthik Tea Stall had occupied

earlier and vacated after the institution of the present proceedings. Therefore even according to the tenant, this portion is a non-residential portion

and by virtue of the subsequent event, it came into the occupation of the landlady, though according to the tenant, she was keeping it vacant. If this

contention of the tenant is accepted, it follows that the landlady had come to occupy a non-residential portion at least after the institution of the

present proceedings and hence her petition u/s 10(3)(c) seeking additional accommodation for non-residential purposes cannot be said to be not

maintainable. In other words, the test laid down by the Supreme Court in Kanniammal''s case stands satisfied, at least by virtue of the subsequent

event pleaded by the tenant himself.

(c) One cannot lose sight of the fact that an innocent landlady like the respondent herein does not go to a lawyer seeking eviction with particular

reference to any specific provision of law. Though ignorance of law is no excuse, the law does not expect a litigant to know the nuances of specific

provisions. The Court cannot expect a landlady like the respondent herein to know, assimilate and understand the fine distinction between Section

10(3)(a)(iii) and 10(3)(c) of the Act and instruct her lawyer to seek eviction under one of those provisions, after making a conscious choice

between the two provisions. Therefore in cases of this nature, the Court has a duty to find out, despite the quote of a particular provision of law, as

to whether the necessary ingredients of the provision of law as applicable to the case stands satisfied or not. In other words, if the case on hand

would fall only u/s 10(3)(a)(iii) but had been filed u/s 10(3)(c), the Court cannot simply dismiss the petition as not maintainable, without looking

into the pleadings and the evidence and without finding out whether at least the ingredients of the correct provision of law are satisfied in the

pleadings and the evidence. If there are sufficient pleadings and evidence on record, to satisfy the requirements of Section 10(3)(a)(iii), the Court

cannot reject the petition for eviction as not maintainable merely because a wrong provision of law is quoted by the counsel. If the case on hand is

viewed from this perspective, it may be seen that the pleadings and the evidence certainly satisfy the ingredients of Section 10(3)(a)(iii) also. To

satisfy the requirements of Section 10(3)(a)(iii), the landlord should plead and prove (i) that he or any member of his family is not occupying for the

purpose of business, which he or any member of his family is carrying on, a non-residential building in the City and (ii) that the nature of user of the

leased property by the tenant must correspond to the nature of the requirements of the landlord. In paragraph-6 of the petition for eviction, the

landlady specifically pleaded that neither she nor her son was occupying any building of their own, other than the petition-building. In response to

this averment in paragraph-6 of the petition for eviction, the tenant merely made a general denial in paragraph-6 of his counter. The tenant did not

make a specific denial by pointing out that the landlady or her son was occupying any other building of their own for non-residential purposes. Thus

the first requirement of Section 10(3)(a)(iii) stood pleaded. It also stood proved, by virtue of the evidence let in. The second requirement also

stood satisfied as is obvious from the pleadings and the evidence. Therefore even the requirements of Section 10(3)(a)(iii) were satisfied in this

case.

As a matter of fact, the requirements of Section 10(3)(c) are more rigid than the requirements of Section 10(3)(a)(iii). In addition to proving bona

fide requirement, a landlord seeking eviction u/s 10(3)(c) has also to prove that the comparative hardship caused by non-eviction will far outweigh

the hardship caused to the tenant by eviction. By quoting Section 10(3)(c), the landlady in this case had taken upon herself, an additional burden to

prove comparative hardship, which she would not have been called upon to do, if she had quoted Section 10(3)(a)(iii). The test of comparative

hardship was also pleaded and proved in this case. Therefore it will be unjustified to throw out the petition for eviction on the ground that Section

10(3)(a)(iii) and not Section 10(3)(c) ought to have been quoted. R. Banumathi, J., has held in Suresh Kumar Kothari v. Dr. T. Ramachandran

2007 (2) MLJ 955, that ""on account of misquoting a provision of law, a party is not disentitled to the relief sought for, if he is otherwise entitled to

the same on the facts and the evidence."" In this case, the respondent landlady has satisfied the requirements of Section 10(3)(a)(iii) also in addition

to satisfying the requirements of Section 10(3)(c).

Therefore I hold that the present petition u/s 10(3)(c) was maintainable.

BONA FIDES OF THE LANDLORD:

The next contention of Mr. V. Raghavachari, learned Counsel for the petitioner/tenant is that the requirement of the landlady was not bona fide.

In paragraph-8 of the counter to the eviction petition, the petitioner/tenant contended that there are no bona fides in the petition for eviction and

that the petition has been filed with ulterior motive to increase the rent from Rs. 1,500/- to Rs. 2,500/-. But the same was not borne out by

evidence. On the contrary, it was established by the landlady that her son was carrying on business in a rented premises and that the owner of that

premises (a temple) had already instituted proceedings for recovery of possession against the landlady''s son. Therefore the bona fide requirement

was actually borne out.

Citing the decision of the Supreme Court in M.M. Quasim Vs. Manohar Lal Sharma and others, , the learned Counsel for the petitioner/tenant

contended that the landlord has no unfettered right to choose whatever premises he wants and that such an approach would put a premium on the

landlord''s greed to throw out tenants in the name of personal occupation. This contention is advanced by the learned Counsel on the basis of the

stand taken by the tenant while cross-examining the landlady''s witness (PW.1). In the cross-examination, it was suggested to PW.1 that one

portion was let out to Karthik Tea Stall, after evicting a tenant running a Flour Mill and that a residential portion was also let out earlier and that if

the landlady''s son bona fide required the premises, he could have made use of those portions. On the basis of such suggestions made during

cross-examination of PW.1, it was contended by the learned Counsel for the tenant that the requirement was not bona fide. But PW.1 explained,

during cross-examination, that at the time when the previous tenant vacated the place, he did not have a pressing need to vacate the tenanted

premises at 195, Thambu Chetty Street, where he was running his business. Moreover, the witness examined on the side of the tenant as RW.1

admitted that there was a Tea Stall by name ''Sastha Tea Stall'' at No. 195, Thambu Chetty Street, Chennai-1. He also admitted in cross-

examination that people were eating snacks outside the Tea Stall and that the area of the place where Sastha Tea Stall was, may measure 100 sq.

ft. Actually in chief-examination, RW.1 claimed that the Tea Stall was about 200 sq. ft., but in cross-examination, he said it was 100 sq. ft. That

the landlady''s son was facing eviction from that premises was borne out by the copy of the plaint filed against him in the suit for eviction, O.S. No.

8298 of 1995, filed as Ex.P.3. Even in the decision of the Supreme Court in M.M. Quasim''s case, it was held in paragraph-18 as follows:

Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to

negative the landlord''s claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable

for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court.

In this case, the landlady had established that on the date of filing the petition for eviction, no other place was vacant. Even if the contention of the

tenant that after the institution of the proceedings Karthik Tea Stall vacated the place is accepted, RW.1 said in cross-examination that they

vacated the premises on account of lack of good business. Therefore the landlady''s son was right in not choosing the portion in which a tenant

carrying on the same business (Tea Stall business) could not flourish.

The learned Counsel for the petitioner/tenant next relied upon the decision of the Supreme Court in S.J. Ebenezer v. Velayudhan 1998 (2)

MLJ 50, in support of his contention that the bona fides of a landlord has to be tested not on his mere desire, but must be tested objectively. There

is no quarrel with the said proposition. The evidence on record clearly points out that the requirement of the premises by the landlady was not a

mere desire, but based on a compulsion to vacate the premises in which her son was carrying on business as a tenant.

The learned Counsel for the petitioner-tenant relied upon the decision in Sree Balaji Krishna Hardware Stores Vs. Srinivasaiah, , where it was

held that in the absence of a proper explanation from the landlord as to why he did not make use of another shop which fell vacant, his requirement

cannot be taken to be bona fide. But in the case on hand, even if the entire case of the tenant is accepted, it could be seen that Karthik Tea Stall

vacated the place, after finding the place unsuitable for Tea Stall business. Therefore the tenant cannot contend that the landlord ought to have

made use of the said portion, again to run a Tea Stall business. Moreover, the tenant has provided a satisfactory explanation in this case as to why

the residential portion vacated earlier, could not also be used for non-residential purpose of running a Tea Stall.

In Sowkath Ali v. Pappu 2001 (2) CTC 200 relied upon by the learned Counsel for the petitioner, it was found by K.P. Sivasubramaniam, J.,

that the adjacent property which fell vacant, was also of the same description. But in this case, the portion vacated earlier was a residential portion

and the portion allegedly vacated by Karthik Tea Stall, after the institution of the proceedings, was found unsuitable for a Tea Stall, even according

to the petitioner/tenant.

In T.P. Baskar Rao v. Mohan alias Sadasivam 2001 (2) MLJ 547, the requirement was found to be not bona fide since other portions were

found to have fallen vacant after the eviction petition and no evidence was let in by the landlord to show that these portions were unsuitable for his

business. Similarly, in S. Loganathan v. V.S. Rangasamy 2002 (1) MLJ 31 , a godown was found to have fallen vacant and it was not pleaded

why that building could not be occupied. In T. Soundarapandian Vs. G. Rathinam, also there was an admission on the part of the landlord that

other shops had fallen vacant but there was no explanation for their non-occupation. The decision in Sharbudin, Ajumudeen, Madhurnisa, Uma

Salma and Five Roja Vs. K. Subramani, was also to the same import.

As stated earlier, it is on record that the portions earlier vacated, before the institution of the proceedings, were residential portions and they

were not road facing. The landlady required the premises for the non-residential purpose of her son''s Tea Stall business. It is in the evidence on

record that only two portions were road facing, one of which was in the occupation of the petitioner/tenant. For carrying on a Tea Stall business,

the landlady cannot be expected to make use of a residential portion which is also not road facing. The only other road facing portion was in the

occupation of Karthik Tea Stall. PW.1 stated in cross-examination that Karthik Tea Stall had not vacated, but the owner of the Tea Stall had gone

out of station. But RW.1 claimed in his evidence that Karthik Tea Stall had vacated, after the institution of the proceedings. The reason stated by

RW.1 was that Karthik Tea Stall found his portion unsuitable for the business of Tea Stall. With such an admission from RW.1 (tenant''s witness),

one cannot expect that the landlady should have opted for that portion and that her failure to do so, would belie or belittle her bona fide

requirement.

Therefore, I hold that both the Rent Controller and the Appellate Authority were right in coming to the conclusion that the requirement of the

landlady was bona fide.

COMPARATIVE HARDSHIP:

On the question of comparative hardship, Mr. V. Raghavachari, learned Counsel for the petitioner/tenant relied upon the decision in R.

Krishnaswamy Vs. N. Arumugam, and the decision in S.M. Subbiah Vs. S. Nandappan and others, .

In the former decision, it was held that if relative hardship is not pleaded, in the petition for eviction, it will be fatal. But in the present case, the

petitioner had pleaded relative hardship very clearly in paragraph-7 of the petition for eviction.

In the second case, it was held that the burden lies initially on the landlord to establish the advantages which he would secure by getting the

tenant evicted and that thereafter, the tenant had to establish his hardship. Applying the said ratio to the case on hand, it will be seen that the

respondent/landlady discharged the burden of proof cast upon her, by establishing the following, in evidence:

(i) that her son was carrying on Tea Stall business in a rented premises at 195, Thambu Chetty Street, as evidenced by the rental receipts Ex.P.2

series, the Corporation challan Ex.P.4 and the photograph Ex.P.5;

(ii) that her son was facing eviction from the rented premises, as evidenced by Ex.P.3, the copy of the plaint in O.S. No. 8298 of 1995 filed by the

temple which is the owner of the property;

The witness examined on the side of the tenant (RW.1) admitted in chief-examination, the existence of a Tea Stall at No. 195, Thambu Chetty

Street, though he claimed that he did not see the landlady or her son there. In cross-examination, he admitted that the Tea Stall in Thambu Chetty

Street, was of the extent of only 100 sq. ft., and that people were standing outside the Tea Stall and eating snacks. Therefore it was made out very

clearly that the landlady''s son was carrying on business in a rented place, which was found insufficient and from which he was also facing the threat

of eviction.

Coming to the comparative hardship for the petitioner/tenant, the admissions made by RW.1 in cross-examination, fully supported the case of

the landlady. These admissions are extracted as follows:

(i) that as per Ex.P.7, the petition-building was used by the tenant only as a godown;

(ii) that the petitioner-Company has a godown cum Office at No. 16, Govindappa Naicken Street;

(iii) that at present the petitioner/tenant had three godowns, one at No. 16, Govindappa Naicken Street, another at the petition-premises and the

third at 29/2, Vepery High Road, Periamet, Chennai-3;

(iv) that the petitioner/tenant has Office at No. 19, Meeran Lebbai Street, Chennai-1;

Thus, it was admitted by the tenant, in the course of evidence, that they had godowns as well as office premises in at least three other places,

other than the petition-premises. It was also suggested (though denied), during cross-examination of RW.1, that they were retaining another place

at No. 71, Seven Wells, Chennai-7, and that the petitioner/tenant was having godowns at least in 10 other places.

In the light of the above evidence on record, it was clear that on the one hand, we have the landlady not owning any other building, seeking

possession of the petition-premises for locating her son''s business, which was being run in a rented place and from which he was facing eviction.

We have on the other hand, a tenant running a transport Company in the petition-premises and who admittedly had three other godowns and an

office premises, all within a radius of a few kilometers (three in Chennai-1 and one in Chennai-3). Therefore it was so clear as a crystal that the

hardship likely to be caused to the landlady by not ordering eviction would far outweigh the hardship that was likely to be caused to the tenant in

ordering the eviction. It is only in such circumstances that the Courts below concurrently held in favour of the respondent/landlady and I see

absolutely no justification to interfere with those concurrent findings.

SUBSEQUENT EVENT:

The last contention of the learned Counsel for the petitioner /tenant is that after the institution of the proceedings, a tenant, running a Tea Stall

by name ''Karthik Tea Stall'', had vacated his portion and that the landlady''s son can very well occupy the same, since the professed object of

seeking additional accommodation was also to run a Tea Stall only.

But RW.1''s (tenant''s witness) evidence in this regard is quite interesting to note. In chief-examination, RW.1 stated as follows:

there was already a Tea Stall by name Karthik Tea Stall in the petition-premises. But they vacated the same one month ago, since there was no

business for them. The petition-premises is in a small lane. If a Tea Stall is established there, the business cannot run

Thus, the portion in which a Tea Stall was run, but was vacated subsequently, even according to the petitioner/tenant, was found unsuitable for

the business of Tea Stall. Therefore, the petitioner/tenant cannot blow hot and cold and contend that that portion should have been taken by the

landlady''s son, for locating his Tea Stall business.

Interestingly, after having stated in chief-examination that the petition-premises is located in a narrow lane, RW.1 admitted in cross-examination

that the goods for their godown always arrive in lorries and that when the lorries are unloaded for one to two hours, the traffic in the street does not

get disrupted. Therefore the evidence of RW.1 lacked any credibility and both the Courts below rightly rejected his evidence and ordered eviction.

In fine, I find all the contentions raised by the learned Counsel for the petitioner/tenant unsustainable. The proceedings for eviction were

initiated by the respondent/landlady in the year 1997. Now a period of 12 years has lapsed. The petitioner/tenant who has godowns in three other

places and an office place in one more place, other than the petition-premises, may not at all face any hardship in vacating the premises in question.

Therefore I find no justification to interfere with the concurrent orders of eviction passed by both the Courts below. Hence this Civil Revision

Petition is dismissed. No costs. Consequently connected miscellaneous petition is also dismissed.