Girirajan vs Mohanammal

M. Chockalingam, J.—Challenging the judgment of the Rent Control Appellate Authority, namely VIII Court of Small Causes, Chennai

made in RCA No. 780 of 2005, whereby the order of the Rent Controller in RCOP No. 1121 of 2004, seeking an order of eviction on the

ground of additional accommodation u/s 10(3)(c) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 18 of 1960 as amended by Act 23 of

1973, was reversed and eviction was ordered, this civil revision petition has been brought forth by the tenant before this Court.

The respondent/landlady filed the petition for eviction, stating that she is the owner of the premises bearing Old No. 290, New No. 497,

Poonamallee High Road, Aminjikarai, Chennai; that the respondent therein is the tenant in respect of two shop portions, namely Shop Nos. 2 and

3 in the ground floor on a monthly rent of Rs. 5770/-; that it was originally leased out to the respondent''s father; that the petitioner is running a

lodge under the name and style of ""Velmurugan Lodge"" in the first and second floors; that in the ground floor, there are four shops and in one shop,

she is running her office and the other shops, namely 2 and 3, are under the occupation of the tenant/respondent in the RCOP, while the other shop

was actually let out to one Shafeequa Banu; that RCOP No. 220 of 1998 was filed; that pursuant to the same, she vacated the premises and

handed over the possession and thus, the landlady got possession of the property; that her son by name Balamurugan is under occupation of the

said portion and that for her son''s requirement, the petition mentioned premises is now sought for; that he has decided to start a supermarket

business in the said building, for which purpose, he has also put in possession of the premises, which was in occupation of the other tenant, who

has vacated and handed over the possession of the same; that he has got a valid license to run the supermarket business, he has also got training in

the said business and he has got sufficient funds to commence the business and under these circumstances, he requires the other shop, which is in

the occupation of the present tenant and the requirement of the petitioner is bona fide and genuine and under these circumstances, if not vacated, it

would cause hardship to the petitioner and hence, the eviction was to be ordered.

The petition was contested by the respondent/tenant, stating that it is true, he is the tenant under the landlady; that originally, his father was the

tenant and a petition in RCOP No. 221 of 1998 was filed against his father on the ground of act of waste and owner''s occupation and the same

was dismissed; that shortly thereafter, the instant petition has been brought forth, as the petitioner requires the building for additional

accommodation; that the petitioner''s son is not carrying on business and under these circumstances, no question of carrying on business by her son

either, or the building is required for additional accommodation would arise and hence, the petition was to be dismissed.

The Rent Controller, on enquiry, has dismissed the petition. Hence, there arose R.C.A. and the appellate forum, on enquiry, has allowed the

appeal and ordered eviction on the ground of additional accommodation. Under these circumstances, this civil revision petition has arisen at the

instance of the tenant.

In support of the revision petition, the learned Counsel would submit that the Rent Controller has gone into both factual and legal positions

correctly and has dismissed the petition, but the appellate authority, without applying his mind, has passed an erroneous order; that in the instant

case, what was asked for by the landlord was the eviction on the ground of additional accommodation u/s 10(3)(c) of the Act; that Section 10(3)

(c) of the Act should be applied in a case, where actually the premises is required for additional accommodation and the landlady is carrying on

business at that time, but in the instant case, even as per the admission made by P.W.1, the landlady''s son, for whose need the portion is required,

neither he is being carrying on business nor her mother in the property in question; that if the business is not carrying on in any portion of the

property, no question of additional accommodation would arise; that in any given situation, where the property is needed for that use, such an

application should have been filed u/s 10(3)(a)(iii) of the Act and not u/s 10(3)(c) of the Act; that the appellate authority has not considered the

legal position, but has found that the application should have been filed u/s 10(3)(c) of the Act; that so long as it is an admitted fact that either the

landlady or her son, for whose possession it is required, are not carrying on business, it cannot be done.

The learned Counsel for the petitioner, relying on the decision of the Supreme Court reported in D. Devaji Vs. K. Sudarashana Rao, and the

decision of this Court reported in 2006 (2) MLJ 16 (P.M.S. Pakkir Mohideen v. K. Susila), would submit that in the instant case, in the absence

of any evidence to carry on business, if there is any requirement, the landlady should come u/s 10(3)(a)(iii) of the Act and a petition should be

made and not u/s 10(3)(c) of the Act; that if petition is made u/s 10(3)(c) of the Act, it becomes more necessary that carrying on business must be

proved, but in the instant case, it is an admitted fact that he is not carrying on business; that even as per the averments, the landlady''s son has put in

possession of the building, but not carrying on business there; that the appellate forum has found that it has got to be held as if he is carrying on

business in the premises and under these circumstances, the order of the Rent Controller has got to be restored by setting aside the order of the

appellate forum.

The learned Counsel for the respondent would submit that in the instant case, sufficient evidence was let in, but the Rent Controller did not

consider both factual and legal positions and has dismissed the petition and the same was set right by the appellate forum; that originally, the father

of the revision petitioner/tenant was put in possession as the tenant; that on his death, the revision petitioner continues to be in possession; that it is

true, originally, there was RCOP No. 221 of 1998 filed against the father of the revision petitioner on the ground of act of waste and owner''s

occupation, but the petition was dismissed, it is true; that it is pertinent to point out that an another petition in RCOP No. 220 of 1998 was filed

against the another tenant and the same was ordered and the particular tenant has also vacated the premises and handed over the possession and

now, the present petition was filed by the landlady, seeking additional accommodation for carrying on business by her son; that in the other portion,

which was vacated by the other tenant, namely Shafeequa Banu, the son of the landlady has put in possession; that there was clear evidence to

indicate that the landlady''s son has taken all steps to commence the supermarket and he has got training and got licence and he has got sufficient

funds and that all have been a proved facts and under these circumstances, the appellate forum has granted the relief.

Added further the learned Counsel that in the instant case, under the stated circumstances, the petition has got to be necessarily filed u/s 10(3)

(c) of the Act and accordingly, it has been filed; that what are all required u/s 10(3)(c) of the Act is to carry on business and then only additional

accommodation should be sought for; that in the instant case, carrying on business would include the business to be carried out by the landlady''s

son also; that carrying on business has got wide interpretation and to add that all steps have been taken in this regard; that the law does not require

that actual and active carrying on business should be made, but steps are sufficient and under these circumstances, the appellate forum was

perfectly correct in allowing the petition for eviction and hence, the civil revision petition has got to be dismissed.

After careful consideration of the rival submissions made, the court is of the considered opinion that this civil revision petition does not carry any

merit whatsoever. In the instant case, admittedly, the landlady is owning a building. The landlady is running a lodge in the first and second floors. In

the ground floor, there are four shops and in one shop, the landlady is running her office and the other two shops are in occupation of the revision

petitioner/tenant. So far as the fourth shop is concerned, there was RCOP No. 220 of 1998 against Shafeequa Banu, the tenant and eviction was

ordered. Subsequently, there was delivery of possession and that the property became vacant then and now it is not in occupation by any other

tenant. It is also true that earlier petition in RCOP No. 221 of 1998 was filed against the father of the tenant on the ground of act of waste and also

for personal occupation and that application was actually dismissed. After an interval, the instant petition was filed on the ground of additional

accommodation u/s 10(3)(c) of the Act. It would be more apt and appropriate to reproduce Section 10(3)(c) of the Act, which reads as follows:

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.

From a very reading of Section 10(3)(c) of the Act, it would be quite clear that what is required is that carrying on business and the building is

required for additional accommodation. In the instant case, even P.W.1, the landlady''s son, has well admitted that either himself or his mother is

not carrying on business in the property. Now, the question would be what is carrying on business u/s 10(3)(c) of the Act and it has got to be

interpreted. Whether it requires actual and active carrying on business during the relevant time. The answer would be in negative. What is required

for carrying on business is the steps that are taken positively for carrying on business and it comes within the interpretation of carrying on business.

In the instant case, there is available evidence and that the landlady''s son was examined as P.W.1 to show that he had got training in the

business, for which he produced evidence. He has also got license for carrying on business and further, he has got sufficient funds. He has

produced sufficient evidence and they cannot be denied. Under these circumstances, he himself put in possession of the property, which is kept

vacant. Hence, actual and active carrying on business is not required. The additional accommodation, which is required by the landlady, could be

extended to her son also and her family members, who are carrying on business. The steps taken, in the opinion of the court, would satisfy to carry

on business as envisaged u/s 10(3)(c) of the Act. The decisions relied on by the learned Counsel for the petitioner are applicable to the case where

the landlord, who is actually having a portion of the property for residential purpose, sought eviction of the tenant, who is occupying the premises

for non residential purpose and the eviction should be sought only u/s 10(3)(a)(iii) and not u/s 10(3)(c). But, in the instant case, the case is

otherwise. When the landlady, for the purpose of carrying on business by her son, seeks additional accommodation in the premises, in question,

the petition for eviction would lie only u/s 10(3)(c) and not u/s 10(3)(a)(iii) of the Act. Hence, the petition was maintainable. Therefore, carrying on

business, as envisaged under the Act, has been proved. The appellate authority, as found above, has passed an order of eviction and it has got to

be sustained. Accordingly, this civil revision petition fails and the same is dismissed. No costs. Consequently, the connected MP is also dismissed.

Taking into consideration the fact that the father of the revision petitioner was carrying on business and after his death, the revision petitioner

continues to do so, the court is of the considered opinion that a reasonable time could be given to vacate the premises and hand over the

possession to the respondent/landlord. At this juncture, the learned Counsel for the revision petitioner seeks two years time. The learned Counsel

for the respondent would submit that it could be for 15 months. Taking into consideration the facts and circumstances of the case, the court feels

that 18 months time could be given for the revision petitioner to vacate the premises and hand over the possession to the respondent/landlord.

Accordingly, 18 months time is granted. The revision petitioner is directed to file an undertaking affidavit to that effect within a period of two weeks

herefrom.