J. Nirmal Kumar vs S. Eswari Ammal

This revision has been directed against the Judgment in RCA No. 145 of 2004 on the file of VIII Judge(Rent Control Appellate Authority)

Court of Small Causes, Chennai which had arisen out of an order in R.C.O.P. No. 361 of 2003 on the file of XV Judge(Rent Controller) Court of

Small Causes, Chennai. The tenant who had succeeded before the learned Rent Controller but unfortunately lost his case before the learned Rent

Control Appellate Authority is the revision petitioner herein.

R.C.O.P. No. 361 of 2003 was filed under Sections 10(3)(a)(iii) and 10(3)(c) of the Tamil Nadu Buildings( Lease and Rent Control) Act

(Hereinafter referred to as ""Act"") before the XV Judge(Rent Controller) Court of Small Causes, Chennai.

The brief facts of the said Rent Control Original Petition are that the respondent is the tenant in respect of the non residential portion in the

ground floor of premises bearing Old No. 50, New No. 44, Mannady Street, Chennai-600 001 on a monthly rent of Rs. 1200/- and the

respondent was carrying on business as a Pawn Broker under the name and style of ""Jorawar Mull Jain"". The premises was originally l leased out

to the father of the respondent, who had surrendered the possession to the petitioner but subsequently, after the death of his father, the respondent

continued his family business in the same premises. The petitioner''s son C.S. Raghavan is carrying on business in Iron and Steel in the name and

style of Raghavan Steel Traders at No. 74, Rasappa Chetty Street, Chennai-3. The petitioner''s husband C.M. Shanmugasundaram is also

carrying on his own business in Iron and Steel under the name and style of C.M. Shanmugasundaram Chetty in the same premises bearing door

No. 74, Rasappa Chetty Street, Chennai-3 and the said premises owned by the petitioner''s husband and the premises is highly insufficient for the

business of both the petitioner''s husband and son. For the bonafide requirements, for the business of the petitioner''s son C.S. Raghavan, the

petitioner required the petition scheduled premises from the respondent. The portion immediately adjacent to the petition scheduled premises , in

the rear side of the petition scheduled premises is kept vacant by the petitioner and hence the possession of the portion under the occupation of the

respondent is if secured, the petitioner, intends to convert both portions into one single unit for the business of her son. There is no other portions

vacant in the ground floor which can be conveniently used for the purpose of carrying on business in Iron and Steel. Since the respondent is failed

to vacate the premises as promised, the petitioner issued notice dated 3.2.2003 through her lawyer demanding the respondent to vacate and hand

over the vacant possession. But the respondent had send a reply dated 17.2.2003 through his lawyer with untenable contentions. The respondent

is having his own building bearing old door No. 62, new door No. 135, Ramaswamy Street, which is very near to the petition scheduled premises.

There is a compelling necessity for the petitioner''s son to shift his business. Hence the petitioner bonafide requires the premises which is under the

occupation of the respondent for the benefit of her son''s business. Hence the petition.

The respondent in his counter would contend that the petitioner had earlier filed R.C.O.P. No. 2356 of 1986 on the file of IX Judge, Court of

Small Causes, Chennai on the ground of 10(3)(a)(iii) claiming the shop which is now under the occupation of the respondent and adjacent shop

which was at that point of time also under the occupation of the respondent for the very same purpose which is mentioned in the present petition.

That was also required for the petitioner''s son C.S. Raghavan to expand his business. The said petition was compromised between the parties and

the respondent''s father had surrendered the possession of the said shop. But the petitioner had not utilised for the same for the business of her son

though she had claimed the shop for that purpose. She had let it out on rent . Even six months prior to the filing of this petition, the petitioner had

chosen to let out the shop which was surrendered by the respondent''s father for the purpose of the petitioner''s son''s business to a STD and PCO

phone booth. This fact shows that the petitioner is not serious about her claim that her son requires the premises under occupation of the

respondent for his business. The rear portion of the shop was kept vacant right from the time the building was constructed. If at all the petitioner is

really projecting a true claim, her son could have commenced his business in the shop in the rear and with opening from the shop in the rear

building which is lying vacant. Many reputed Steel merchants are having their shops only in Rasappa Chetty Street wherein the petitioner''s son is

having his present business. .(About 34 shops name have been furnished in the counter). The respondent has also furnished about 59 Stores name

having their business at Mannady Street to show that no steel business is being conducted close to the shop of the petitioner. The petition lacks,

even according to the petitioner, her son is at present not carrying on business in any portion of the petition premises. Even according to her, one

portion is lying vacant and no business activity being conducted in that portion by the petitioner''s son. Further there is no material placed to show

that the petitioner''s son is actually carrying on business in the name and style of Raghavan Steel Traders at No. 74, Rasappa Chetty Street. When

there is no independent business, the petition for owner''s occupation does not lie and the petition has to be dismissed on the sole ground. Even the

rental receipts for the entire first floor are being issued in the name of the petitioner''s son C.S. Raghavan. The petitioner has not stated that the

petitioner''s son does not own any other property. The entire first floor in the petition scheduled premises is in the name of the petitioner''s son.

Hence the petition for eviction is not maintainable. The respondent''s father late H. Jorwar Mull Jain originally became a tenant under the petitioner

in January 1975 for two shops in the ground floor and two shops in the first floor. Subsequently, the petitioner had filed H.R.C. No. 1699 of 1980

for fixation of rent. Thereafter a fresh agreement of lease was entered into between the petitioner and the respondent''s father wherein the

respondent''s father surrendered two portions of the first floor and that the same is required for her husband''s occupation. The said two shops

were not put to use by the petitioner but were let out to third parties. The respondent''s father retained possession of the two shops in the ground

floor and additional advance of Rs. 1,000/- was paid, making the total advance now retained by the petitioner at Rs. 4,500/-. Thereafter, the

petitioner had filed R.C.O.P. No. 2536 of 1986 claiming that she required the portion under occupation by the respondent''s father for her own

business and also to start a business for her second son, the very same Raghavan for whom the shop is now sought for. Pending the said

proceedings, a compromise was entered into between the parties and the respondent''s father had surrendered the possession of one of the two

shops and retained possession of the shop which is the subject matter of the present petition. After the death of his parents in quick succession to

each other, in March 1992, the respondent had written to the petitioner to attorn tenancy in his favour. The petitioner also attorned the tenancy in

favour of the respondent. The respondent and his father were in occupation of the petition scheduled premises from the year 1975 and have

established their business therein. The respondent is keeping valuable jewels and other valuable articles belonged to the general public in the shop,

he cannot find a suitable accommodation in the locality and if he is compelled to vacate the premises, he will sustain serious loss and irreparable

damage. At the time, when the petitioner''s son refused to collect the monthly rent from the respondent, the respondent send a legal notice to the

petitioner insisting her(petitioner) to furnish her bank account to enable the respondent to deposit the future rents in her (Petitioner) bank account.

The rents are now being sent to the petitioner by way of cheque. The area in which the petition scheduled premises is situate is not a suitable place

for the petitioner''s son to conduct his business. The demand made by the petitioner for the petition scheduled premises is false and baseless and

liable to be rejected. In 74, Rasappa Chetty Street, there is one shop is vacant in the ground floor itself. There is no name board. It is not let out to

any third party. In door No. 62, Ramaswamy Street is also owned by the sister of the respondent and hence it is not possible for the respondent to

shift his business in door No. 62, Ramaswamy Street. Hence the petition is liable to be dismissed.

Before the learned Rent Controller, P.W.1 was examined and Exs P1 to P14 were marked and on the side of the respondent, the respondent

has examined himself as R.W1 besides examining one Manavalan as R.W.2 and has exhibited R1 to R16. On the basis of the available

documentary and oral evidence, the learned Rent Controller has held that the petitioner/landlord is not entitled to a relief asked for in the petition

u/s 10(3)(a)(iii) and 10(3)(c) of the Act had dismissed the petition. On appeal preferred by the landlord/petitioner , the learned Rent Control

Appellate Authority in RCA No. 145 of 2004 had confirmed the finding of Rent Controller u/s 10(3)(c) but allowed the appeal u/s 10(3)(a)(iii)

thereby setting aside the findings of the learned Rent Controller in R.C.O.P. No. 361 of 2003 directing the tenant to vacate and hand over the

possession of the petition scheduled premises giving two months time which necessitated the tenant to prefer this revision petition.

Heard Mr. K.P. Ashok, the learned Counsel appearing for the revision petitioner and Mr. V.G. Suresh Kumar, the learned Counsel appearing

for the respondent and considered their respective submissions.

The learned Counsel appearing for the revision petitioner would contend that the landlord having obtained possession in respect of the portion of

the building which was in his own occupation as per the order passed in R.C.O.P. No. 2536 of 1986 which was also filed by the landlord u/s

10(3)(a)(iii) of the Act, is not entitled to file another petition under the same provision of law on the same ground since the same is specifically

barred under second proviso to Section 10(3)(a)(iii) of the Act.

The learned Counsel appearing for the respondent relying on a decision reported in Annamalai and Company Vs. Sital Achi, would contend that

when the building is required for a member of the landlord''s family and if the demand is proved genuine then the eviction is to be ordered u/s 10(3)

(a)(iii) of the Act. The facts of the said case are as follows: R.C.O.P. was filed by the landlady u/s 10(3)(a)(iii) of the Act for eviction of the tenant

from the premises No. 29, Vaduga Kaval Street, Madurai Town on the ground that the same is required for the purpose of residence and business

of her adult married son. The landlady therein was living in a rented house with her husband. Her son with his wife and children was living in a

separate rented house in door No. 3, Mahal First Street, Madurai and was also carrying on money lending business in the said premises. Besides

the house in question the respondent also owned another house in Goods Shed Street, Madurai which was also under tenancy to a third party. The

landlady filed an application for eviction of the tenant in the premises in Goods Shed Street, Madurai on the ground that it was required for her

own residence and also for the pawn broker''s business of her husband. The said application was ordered and the tenant was directed to vacate

and hand over the possession. Thereafter, the landlady filed another petition of the same nature in respect of the premises bearing door No. 29,

Vaduga Kaval Kooda Street, Madurai Town but before actual possession was taken in respect of the premises in Goods Shed Street, Madurai

Town. The learned Rent Controller ordered eviction of the petitioner in respect of the premises bearing door No. 29, Vaduga Kaval Kooda

Street, Madurai Town, holding that the requirement of the landlady was bonafide. The learned Appellate Authority also confirmed the orders of the

learned Rent Controller holding that the requirement of the landlady of the premises bearing Door No. 29, Vaduga Kaval Moola Street, Madurai

for the purpose of residence and business of respondent'' son against the order of the learned Rent Controller, for eviction in respect of the

premises bearing door No. 29, Vaduga Kaval Moola Street, Madurai and an appeal was preferred by the tenant. While, the same was pending,

the tenant was evicted from the Goods Sheds Street, Madurai and the landlady got possession of the said premises for carrying on Pawn Broker

business. It was contended before the Courts below that since the respondent/landlady had already obtained an order of eviction and also

subsequently got delivery of possession of the premises Goods Sheds Street, Madurai for the purpose of residence and her husband''s business,

the application for eviction of the petitioner from the premises bearing door No. 29, Vaduga Kaval Kooda Street, Madurai Town is not

maintainable on the ground that it is not required by the landlady on bonafide for the purpose of residence and business. Only under such

circumstances, it was held that the claim of the landlady u/s 10(3)(a)(iii) of the Act in respect of another building is maintainable and there is no bar

under Second proviso to Section 10(3)(a)(iii) of the Act . The relevant observation in the above said ratio relevant for the purpose of deciding this

revision runs as follows:

According to the learned Counsel when the respondent obtained an order of eviction and got possession of a building, though for the purposes of

residence and business of her husband she shall be deemed to be in occupation for purpose of her residence and business of the building which is

her own and therefore she would not satisfy the conditions prescribed u/s 10(3)(i) and (iii). Even if it can be considered that the prior order of

eviction was for purpose of her husband''s business the proviso bars entertainment of another application by the respondent. On a plain and

grammatical reading of the language used in Clause 3 (a)(i)(iii)I am unable to accept this contention. In my opinion the owner of a residential

premises could invoke the provisions of Section 10(3)(a)(i) if the building is required for his own occupation or for the occupation of any member

of his family. The condition imposed under that section of not occupying residential building of his own is to be understood with reference to the

person for whose occupation the building is required. Therefore, even if the owner of the house is occupying another residential building of his own

he could apply for eviction of a tenant of another building if that building was required for the occupation of any member of his family. In Clause (3)

of that sub section the words use are ""if the landlord or any member of his family is not occupying for purposes of business which he or any

member of his family is carrying on a non residential building . . . . . . . . . which is the own"". Thus here also in the case of eviction of a tenant from a

non residential building the condition to be satisfied is that the person for whose business the building is required shall not be in occupation of a non

residential building of his own. In other words, the landlord though he may be in occupation of a non residential building for purpose of his

business, could apply for eviction of a tenant in respect of another non residential building if required for the purpose of a business which any

member of his family is carrying on provided the person for whose benefit the non residential building was required by the landlord is not already in

occupation of non residential building of his own. Any other construction in my opinion would nullify the amendment of the Section by introduction

of the words'' any member of his family.'' The second proviso to this sub section could apply only to a case where the main part of sub Clause (i)

and (iii) is applicable for if the landlord petitioner does not satisfy the requirement of Clauses (i) and (iii) on that ground itself the petition would be

liable to be dismissed and there can be no occasion for invoking the provisions of the proviso. In my opinion, the proviso is put by way of a

abundant caution and would be applicable only to a case where the landlord had obtained possession of a building under that clause and applies

for possession of another building to himself. It would not apply to a case where the landlord had obtained possession of a building for his own

purpose of residence or business of any member of his family.

A careful reading of the above said ratio decidendi will clearly go to show that the said dictum is against the landlord/respondent herein because

already the landlady herein had filed R.C.O.P. No. 2536 of 1986 before the IX Judge Court of Small Causes, Chennai u/s 10(3)(a)(iii) of the Act

claiming that shop which was under the occupation of the present tenant/revision petitioner and also the adjacent shop which was also under the

occupation of the present tenant/revision petitioner on the ground that the said premises were required for her second son for expanding his iron

and steel business. In R.C.O.P. No. 2536 of 1986, there was a compromise entered into between the parties, and in terms of compromise, the

tenant/revision petitioner''s father had handed over the vacant possession of the said premises to the landlord. But subsequently the purpose for

which the said premises was obtained by the present landlady would not be fructified because her second son also died and even before his death,

the landlady had let out the said premises to R.W.2, Manavalan. There was no explanation forthcoming from the side of the landlady/respondent

herein as to why the said premises was not utilised by her second son for whom the landlady had filed the said R.C.O.P. No. 2536 of 1986 for

expansion of his business and as to why she had let out the premises to R.W.2 Manavalan. Now under the present R.C.O.P. No. 361 of 2003,

which was also filed u/s 10(3)(a)(iii) of the Act, by the landlady on the ground that the petition scheduled premises which is under the occupation of

the tenant/respondent is required for the purpose of expanding business of her first son. So in this context only we have to see whether the petition

filed in R.C.O.P. No. 361 of 2003 by the landlady u/s 10(3)(a)(iii) of the Act is hit by second proviso to Section 10(3)(a)(iii) of the Act. Second

proviso to Section 10(3)(a)(iii) of the Act runs as follows:

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 his residential building of his own in the city, town or village concerned.

Provided. . . . . . . . ... ..

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

Clauses

(1) In Case he has obtained possession of a residential building , for possession of another residential building of his own.

The contention of the learned Counsel appearing for the petitioner is that previously the landlady had filed R.C.O.P. No. 2536 of 1986 u/s

10(3)(a)(iii) of the Act for her second son and now present petition in R.C.O.P. No. 361 of 2003 was filed u/s 10(3)(a)(iii) of the Act for the

purpose of expanding the business of her first son makes no difference. Once the landlady had obtained possession of a rental premises from the

respondent''s father u/s 10(3)(a)(iii) of the Act she is not entitled to file any petition u/s 10(3)(a)(iii) of the Act in respect of another non residential

building which is under occupation of the same respondent on the ground that it is required for another son. The very fact that after obtaining the

possession u/s 10(3)(a)(iii) for the purpose of shifting the steel business of her second son without utilising the said building for the purpose for

which the possession was obtained, the landlady had let out the same to R.W.2 Manavalan and thereafter had come forward with another petition

similar in nature u/s 10(3)(a)(iii) of the Act claiming that the petition scheduled premises is required for the purpose of expanding the business of her

first son in my view is not maintainable as per second proviso to Section 10(3)(a)(iii) of the Act.

The learned rent Control appellate authority had erroneously observed at paragraph 18 of his Judgment that the earlier petition was filed for the

purpose of starting a business for herself and for her second son who is no more, but the present application is filed in view of the requirement of

landlord''s first son who is alive is not hit by second proviso to Section 10(3)(a)(iii) of the Act, in my opinion is not correct. On the other hand, the

learned Rent Controller has elaborately discussed about the purpose for which the earlier R.C.O.P. No. 2536 of 1986 was filed by the same

landlady was not utilised and after taking possession of the earlier premises had let out to another person viz., R.W.2 Manavalan and has filed the

present RCOP u/s 10(3)(a)(iii) of the Act stating that the present premises under which the tenant/revision petitioner is in occupation requires for

her another son cannot be maintainable, under Second proviso to Section 10(3)(a)(iii) of the Act, ought not to have been interfered with by the

learned Rent Control Appellate Authority.

The other ratios M.P.M. Hameed Ibrahim and one another Vs. V.S. Bagirathan and others, , P. Prakasamurthy Vs. P. Rajendran, , Akthars,

represented by its Proprietor, R. Syed Tajuddin v. Hitesh V. Shah 2000(1)MLJ 413 and Rishi Kumar Govil Vs. Maqsoodan and Others, relied

on by the learned Counsel appearing for the respondent have no bearing to the present facts of the case.

In fine, this civil revision petition is allowed and the Judgment in R.C.A. No. 145 of 2004 on the file of VIII Judge, Court of Small Causes,

Chennai is set aside and R.C.O.P. No. 361 of 2003 is dismissed. No costs. Consequently, connected MP is closed.