Krishnamurthy Achari vs Gori Devi

Swamiekannu, J.—This is a Civil Revision Petition filed against the judgment in House Rent Appeal No. 1587 of 1980 by the Tenant. The petition was filed by the landlord for eviction of the revision petition herein on the ground of bonafide requirement for own occupation u/s 10(3)(a)(ii) of the Tamil Nadu Act XVIII of 1960. The Petition was filed against two tenants, the revision Petitioner herein and one Bashyam Achari occupying two portions in the petition premises No. 12, Krishnappa Maistry Street, Madras-3, belonging to the landlady on a rent of Rs. 60/- payable by each of them per month. The husband of the landlady and her son (examined as P.W. 1) are carrying on business at premises Nos. 18, and 20, Kasi Chetty Street, Madras-1, which are rented buildings. The; landlady required the shops under the two tenants, including the revision Petitioner herein, for the purpose of the business carried on by her husband and her son. The landlady or her husband or her son are not in occupation of any non-residential building of their own in the City. The requirement for own occupation is true and bonafide. The Revision Petitioner and the other tenant have not vacated in spite of notice, dated 7tb December, 1979,

The revision Petitioner and the other tenant filed separate counters putting forth identical contentions as follows:

The husband of the landlady is carrying on business at Kasi Chetty Street, for the past so many years. He has no intention to shift his business to any other place. The business carried on by the husband of the landlady is a special kind of business and the locality of Kasi Chetty Street is specifically meant for that type of business. The allegation that the landlady''s husband wanted to shift the business to the petition premises is false. The petition is motivated on account of the revision Petitioner''s refusal to pay enhanced rent at Rs. 150 p.m. and the refusal by the other tenant to pay enhanced rent of Rs. 125/ demanded by the Respondent, though they were amenable for any reasonable increase in the rent. The requirement for own occupation is not bonafide.

During enquiry before the learned Rent Controller the landlady''s son was examined as P.W. 1 and the revision Petitioner as R.W. 1 and the other tenant, Bashyam Achari, as R.W. 2 and exhibits P-1 to P-13 were marked. The learned Rent Controller found that the requirement for own occupation put forth by the landlady for the purpose of the business carried on by her husband and son, P.W. 1 was true and bonafide and ordered eviction granting two months to vacate. Aggrieved by the said eviction order, the revision Petitioner filed House Rent Appeal No. 1587 of 1980 and the other tenant, Bashyam Achari filed House Rent Appeal No. 1652 of 1980. After both these appeals were beard jointly and judgment was reserved, the Appellant in House Rent Appeal No. 165 2of 1980 filed a petition for re-opening his appeal and made an endorsements not pressing his appeal and by consent of the landlady that appeal was dismissed as not pressed without costs granting time to vacate till 30th November, 1982.

On the point whether the requirement for own occupation put forth by the landlady for the purpose of the business of her husband and son is true and bonafide, the appellate authority held that the requirement for own occupation by the landlady for the purpose of the business of her husband and her son is bonafide. In other words, the finding of the learned Rent Controller was confirmed by the appellate authority. Aggrieved by the above decision of the appellate authority, the tenant has preferred this revision inter alia contending that the appellate authority has failed to note the statutory provision available in the special enactment that the requirement of two different and independent portions in the occupation of two independent tenants cannot be asked by the landlady under the provision of Section 10(3)(a)(iii). In support of this contention, Mr. R.S. Srinivasan, for Mr. R. Sadagopan, learned Counsel for the revision Petitioner herein, refers to the decision in Kalahasti Chetty v. Balakrishnamuftliy Chetty (1948) 2 M.W.J. 70 (S.N.) where the purchaser of a house filed an application before the Rent Controller for eviction of two tenants in occupation of portions of the premises on the ground that the portions were required for his personal occupation. The Rent Controller held that the landlord bona fide required the whole premises for his occupation and. so passed an order for eviction against both tenants one tenant vacated his portion but the other appealed to the Chief Judge Court of Small Causes. It was contended that since the date of the application the landlord had got possession of the several rooms in the premises he cannot be deemed to require the other portions of the house in the occupation of the Appellant. The Chief Judge of the Court of Small Causes considered that this was a matter for investigation namely, whether the portion in the occupation of the landlord was sufficient for him. He, therefore, remanded the application for fresh disposal after determination of the question above mentioned. In a petition to quash that order it was contend that the Chief Judge, Small Causes Court, bad no jurisdiction to take notice of events which happened subsequent to the application and the order of remand was therefore bad. It was also contended that be bad no power to direct an investigation into the sufficiency of the portion required by the landlord. It was held:

as the application for eviction was based on the ground that the portions in the occupation of both the tenants, which would really be two buildings (vide the definition Section 2(1) of Act XV of 1946), were required for his personal occupation it was incumbent on the Tribunals, both original and appellate to determine the question, whether the landlord required both the premises for his own occupation. In the appeal before the Small Cause, Chief Judge the only question which had to be determined was whether the landlord bonafide required the "building" in the occupation of the appealing tenant, for his own occupation.

Another decision referred to by Mr. R.S. Srinivasan on behalf of the revision Petitioner is Rajarathnam Chetty v. Abdul Gani (1964) 1 M.L.J. 289 where an application was filed by the landlord requiring the tenants to put him in possession of the non-residential buildings for his own business. The question that was considered was with reference to the reasonable requirement of the landlord It was held:

The findings by the Rent Controller, on a consideration of all the circumstances affecting the interests of the landlord and the tenants, that the requirements of the landlord may be satisfied by an allotment of two shops out of the four shops in the premises would be a question of fact and the same has to be accepted by the High Court in revision.

It would be irrelevant to take into consideration the fact that the landlord purchased the building recently for his use and occupation.

On the other hand, Mr. M. Srinivasan, learned Counsel for the landlady, the Respondent herein, refers to Section 10(3)(a)(iii), which reads as follows:

A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant put the landlord in possession of the building-

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 interviews 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 cases he has obtained possession of a non-residential building, for possession of another residential building of his own.

Mr. M. Srinivasan, learned Counsel for the landlady also refers to the decision in R. Venkatesachary and Others Vs. The Judge, Court of Small Causes and Another, for the proposition that though the definition of a building in the Tamil Nadu Buildings (Lease and Rent Control) Act includes a portion of the building it does not mean that the owner of a house, portions of which have been let separately, cannot file an application for obtaining possession of the entire house as building. What is sufficient for the landlord is not the real question, but whether be requires the entire building bona fide for his occupation.

In the instant case, there is no error of jurisdiction or an apparent error of law on the face of the records. The appellate authority had found that the landlady requires both the portions for the business of her husband was well as her son. When the appeals had been preferred to the appellate authority by both the tenants occupying the different portions of the same building, one of then had withdrawn the appeal as not pressed. It is only the revision Petitioner, who was occupying another portion of the building, has come forward with this revision petition. It is contended on behalf of the revision Petitioner that the landlady cannot ask two portions of the building stating that one is required for her husband''s business and the other portion is required for the business of her son. A clear reading of the provisions u/s 10(3)(a)(iii) does not prohibit a landlady from asking two different portions for non-residential purposes, especially. when the portion is required for carrying on the business by her husband and another portion for carrying on the business by her son. In the instant case, the fact remains that the building is owned by the landlady. Though the definition of a building in the Act includes a portion of the building, it does not mean that the owner of a house, portions of which have been let separately, cannot conic forward with a petition against the tenants occupying different portions of the building. In the instant case, a careful and anxious scrutiny of the entire evidence shows that the bonafide requirement was fully satisfied by the landlady by examining her son. Nothing material has been elicited in the cross-examination of P.W. 1 to discredit the case of the landlady that she requires two different portions of the same building or the bonafide of the members of her family viz., the best and the son. Therefore, the concurrent finding of both the ''Learned Rent Controller and the appellase authority that the portions under he occupation of the revision Petitioner as well as the other tenant who had withdrawn his appeal before the appellate authority, are required by the members of her family as contemplated by the provisions of Section 10(3)(a)(iii) of the Act cannot be disturbed, there is no infirmiy in the judgment under revision, There is no merit in the Civil Revision Petition. The Civil Revision Petition is dismissed. But under the circumstances there is no order as to costs, three, months time is granted to the Revision Petitioner to vacate the premises on question.