K. Gopalan Nair vs V. Kamalammal

Varadarajan, J.—The petition has been tiled to revise the judgment of the Appellate Authority (Subordinate Judge), Nagercoil, reversing the

order of the Rent Controller (Principal District Munsif) Kuzhithurai, in H.R.C. No. 2 of 1974 and directing the eviction of the petitioner from a

non-residential building on the ground that the building is required for the respondent''s husband to start a textile business. The allegation made in

the eviction petition so far as this ground, with which alone we are concerned in this civil revision petition, is the respondent''s husband

Kandaswami is a Government contractor and that the petition-mentioned building is required for his use. Though the petitioner before me has not

disputed in his counter-statement the fact that the respondent''s husband is a Government contractor, he has contended that the requirement is not

bona fide. The learned Rent Controller accepted the contention of the petitioner and rejected the petition. But on appeal the learned Appellate

Authority found that the honest desire of the respondent''s husband, examined as P.W. 1 coupled with the genuine need for requiring the demised

property to start a business is the objective test to decide the question whether the landlady requires the demised property bona fide for own use

and that the evidence does not justify the conclusion that the desire coupled with the need to start a textile business in the demised property by the

husband of the landlady is dishonest to serve any oblique purpose. In this view he allowed the appeal.

It is not possible to sustain the order of the learned Appellate Authority. As already stated, the allegation in the eviction petition is that the non-

residential building is required for the business of the respondent''s husband ""who is a Government contractor"" But the respondent''s husband

examined as P.W. 1 has admitted that he has ceased to be a Government contractor at present, but he added that he intends to start a textile

business in the demised property, on the ground that he has previous experience in that kind of business. I am firmly of the opinion that the learned

Appellate Authority should not have looked into this piece of evidence of P. W. 1 in the absence of any allegation that the non-residential building

is required for any textile business of the respondent''s husband, for, no amount of evidence can be looked into on a plea which has not been put

forward. The evidence of P. W. 1 shows that he has merely an intention to start a textile business because, he claims to have previous experience

in such kind of business and the respondent is, therefore, stated to require the non-residential building bona fide for that purpose. A Bench of this

Court has in P.N. Raju Chettiar v. The State of Tamil Nadu, represented by the Secretary, Home Department (Accommodation Controller) and

others 82 L.W. 695=1970-1 M.L.J. 249=A.I.R. 1970 Mad. 306 held, on a consideration of the language employed in S. 10 (3) (a) (iii) of the

Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 that while literal construction placed by the Honourable Judges of this Court does not

commend itself to them the other view appears to be reasonable and that they think so because ""carrying on a business"" may consist of a series of

steps, and even if one step is proved, they did not see why the requirement is not satisfied, but if there is no step at all whatever and the matter is

only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute, namely S.10 (3) (a) (iii) of the Act. This

decision squarely applied to the facts of the present case.

Mr. Kumaraswami Pillai, the learned counsel appearing for the respondent, invited my attention to the decision of Nainar Sundaram, J., in K.

Rangaswamy Iyengar v. Postmen''s Co-operative Credit Society through its President and another 1978-2-M.L.J. 167=I.L.R. (1978) 3 Mad.

178=91 L.W. 403 which, in my opinion Lays down that it is not open to the tenant to contend that the landlord, who is already carrying on one

business, is not entitled to ask for a non-residential building for the purpose of carrying on another business of a different kind. That decision will

not apply to the facts of the present case. In my opinion the conclusion of the learned Rent Controller is right and that the Appellate Authority erred

in ordering on this ground. The Civil Revision Petition is allowed with costs throughout. No leave.