Madhurani Gupta and another vs Shairu Bux Damani and another

Somasundaram, J.—The petitioner in C.R.P. Nos. 1647 and 1648 of 1990 is the first respondent in R.C.O.P. No. 312 of 1984 on the file

of the 9th Judge, Court of Small Causes, Madras. The petitioner in C.R.P. Nos. 1650 and 1651 and 1990 is the second respondent in R.C.O.P.

No. 312/84. The respondent in all the civil revision petitions is the petitioner in R.C.O.P. No. 312 of 1984. For the sake of convenience the

parties are referred to in this order as per the nomenclature given to them in the Rent Control Original Petition. The petitioner is the landlord and he

filed R.C.O.P. No. 312 of 1984 under S. 10(3)(a)(iii) and S. 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960,

hereinafter called the Act. The case of the petitioner is as follows:

The petitioner is the owner and landlord of the premises bearing door No. 20, Murugappan Street, Madras-79 and the first respondent is a tenant

occupying a shop for business purposes in the ground floor of premises No. 20, Murugappan Street on a monthly rent of Rs. 175/- and the second

respondent is also a tenant under the petitioner occupying a shop for the business purposes (sic) premises No. 20 referred above in the ground

floor on a monthly rent of Rs. 30/-. The petitioner is carrying on the business under the name and style of ""Wire House"" as proprietor thereof in the

car shed in premises No. 20, Murugappan Street. The petitioner''s son and wife are carrying on the business under the name and style of ""Damani

Brothers"" also in the petition premises in an adjoining small place in the car shed. The petitioner another son and daughter-in-law are carrying on

business at No. 13, Errabalu Street Madras-1. The petitioner was originally carrying on business at No. 100, Broadway, Madras-1 which had a

(sic) area of 1600 sq.ft. As the lessor of the said premises No. 100, Broadway wanted the petitioner to vacate and hand over vacant possession,

the petitioner is forced to vacate the said premises and carry on his business in the car shed portion in the petition premises. The car shed portion

wherein the petitioner is now carrying on business is just about 300 sq.ft. whereas in the original place of business at No. 100, Broadway he was

carrying on business in about 1600 sq.ft. in area. The business of the petitioner''s son and wife is also carried on in the same, place. The car shed

portion measuring 300 sq.ft. is not sufficient for both the business of the petitioner as well as the business of his wife and son, and the petitioner

bona fide requires the petition mentioned premises in the occupation of the respondents for the occupation of the petitioner and his wife and son by

way of additional accomodation. The petitioner''s another son and daughter-in-law are doing business under the name and style of Southern

Capacitors'' in No (sic) Errabalu Street which is a rented building and as the petitioner, his son and daughter-in-law did (sic) own any building of

their own, the portion in the respondents'' occupation in the petition premises is required for the purpose of business of his son and daughter-in-law

which is being carried on in the building not of their own.

The first respondent filed a counter contending as follows:- A single petition for eviction filed under S. 10(3)(a)(iii) and S. 10(3)(c) of the Act is

not maintainable, The requirement of the petitioner for his business as well as for the business of his son and daughter-in-law is not bona fide. The

petitioner''s son and daughter-in-law are having other non-residential buildings of their own. If this respondent is evicted, she will be put to

irreparable loss and hardship and that will outweigh the little advantage to the petitioner as this place is suitable only for textile business and most of

the shops in that area are textile shops.

The second respondent filed a counter contending that he is running a cycle shop in the petition premises for the past three decades, by which he

is eking his livelihood. This respondent is in occupation of only 117 sq.ft. Irreparable hardship will be caused to him in the event of his eviction from

the petition mentioned premises which will outweigh the advantage to the petitioner.

The Rent Controller, on a consideration of the evidence on record, found that a single petition under S. 10(3)(i)(iii) and 10(3)(a)(iii) and 10(3)

(c) of the Act is maintainable. The Rent Controller further found that the petitioner is not entitled to an order of eviction under S. 10(3)(a)(iii) as he

had not proved that his son and daughter-in-law carried on the partnership business under the name and style of ""Southern Capacitors"" However,

the Rent Controller found the petitioner''s requirement for additional accommodation for his business of his son and wife under the name and style

of ""Damani Brothers"" is bona fide. Consequently the Rent Controller allowed R.C.O.P. No. 312 of 1984 and ordered eviction.

As against the order of eviction passed by the Rent Controller, the first respondent filed R.C.A. No. 143 of 1988 before the Appellate

Authority (8th Judge, Court of Small Causes, Madras) and the second respondent filed R.C.A. No. 145 of 1988. As against the finding of the

Rent Controller that the petitioner is not entitled to an order of eviction under 10(3) (a) (iii) of the Act, he filed R.C.A. No. 255 of 1988. The

Appellate Authority heard all the Rent Control Appeals together and by a common judgment dismissed R.C.A. Nos. 143 and 145 of 1988 and

allowed R.C.A. No. 255 of 1988. The Appellate Authority, while allowing R.C.A. No. 255 of 1988, found that the petitioner is also entitled to an

order of eviction under S. 10(3)(a)(iii) of the Act. As against the judgment of the Appellate Authority in the above Rent Control Appeals, the

respondents have filed the above civil revision petitions.

Two questions which arise for consideration in these civil revision petitions are the following:

(1) Whether the petitioner bona fide requires the petition premises for the business of his son and daughter-in-law under S. 10(3)(a)(iii)of the Act?

(2) Whether the petitioner''s requirement of the premises for additional accommodation is bona fide?

Let us first examine the question whether the petitioner is entitled to an order of eviction under S. 10(3)(a)(iii) of the Act. According to S. 10(3)

(a)(iii), a landlord, in order to obtain an order of eviction under that section has to satisfy the following conditions:

(i) The petition-premises is non-residential in nature:

(ii) The petitioner or his family members are carrying on business in the building which does not belong to them:

(iii) The petitioner or his family members are not occupying any non-residential building of their own for the purpose of such business: and

(iv) The claim is bona fide.

It is admitted that the premises in question is non-residential in nature. The evidence in this case discloses that the petitioner''s son, S.R. Damani,

and his daughter-in-law, Pushpa Damani, are carrying on business under the name and style of Southern Capacitors in No. 13, Errabalu Street,

Madras-1 which does not belong to them. Exs.P11 and P12 are the registration certificates of TNGST and C.S.T. relating to M/s. Southern

Capacitors, Ex. P22 is the assessment order dated 13.1.1984 in respect of ''Southern Capacitors"".

Ex. P-19 series are rent receipts issued by one Lakshmi Estate which shows that the building bearing No. 13, Errabalu Street belonged to a third

party and not to the petitioner''s family. Exs.P-28 to P-31 marked as additional evidence before the Appellate Authority show that the petitioner''s

son and daughter-in-law are partners of ""Southern Capacitors"" and they are having 50% share in the partnership business and two other partners

are having the other 50% share in the firm. The above documents clearly go to prove that the petitioner''s son and daughter-in-law are partners of

the firm ""Southern Capacitors"" and the firm is carrying on business in No. 13, Errabalu Street, Madras-1. There is also evidence to show that the

petitioner or his family members are not occupying any non-residential building of their own for such business. The Supreme Court in Krishnan

Nair and Others Vs. Ghouse Basha, considered the question whether the landlord is entitled to maintain on application under S. 10(3)(a)(iii) of the

Act on the ground of requirement of premises for accommodating the partnership business where one of the members of the family is a partner.

The Supreme Court, while answering the question in the affirmative, held as follows:-

Partnership, as is well settled, has a compendious way of describing these who constitute the firm under S. 4 of the Partnership Act, Now, if that is

the position, in our opinion if a person carried on a business along with other partners and it was the other partner who actually carried on the

business the position perhaps would have been entirely different. If the same were only sleeping partners that would have been different. On the

contrary, here having regard to the past conduct of the sons and having regard to the shares this was their only application where sons were

carrying on the business along with other partner. If that is the position in our opinion under S. 10(3) (a) (iii) of the Act as the, sons and members

of the family carrying on the business in terms of the section will be entitled to the benefit of eviction.

In that case, their Lordships relied on the earlier decision reported in D.N. Sanghavi and Sons Vs. Ambalal Tribhuwan Das, where the meaning of

the expression ''his business'' under S. 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 came up for consideration. The said

section is in parimateria S. 10(3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. In the said decision D.N. Sanghavi and Sons

Vs. Ambalal Tribhuwan Das, it was held:

The meaning of the expression ''his business'' in S. 12(1)(f) of the Madhya Pradesh Accommodation Control Act 1961 is to be determined by

examining the object of the Act and the setting of the phrase ''his business

In Aisha Thnajiysa A. v. Messrs. Lalchand Kewalram 1989-2-L.W. 123 FB a Full Bench of this Court dealing with the same question, following

the principle laid down by the Supreme Court in the decision referred above held as follows:

Thus, on a careful analysis of the ratio laid down in the above quested decisions and in view of the latest decision of the Supreme Court reported in

Krishnan Nair and Others Vs. Ghouse Basha, , we hold that the petition for eviction can be filed under S. 10(3)(a)(iii) of the Act to accommodate

a partnership firm in which the members of the landlord''s family are partners along with the strangers. But, however, in view of the observations of

the Supreme Court in the above quoted case, we (sic) to make it clear that the members of the landlord''s family in the partnership firm must be

directly and substantially involved in the partnership business considering the extent of their interest in the business i.e., the shares they have in the

partnership business and the part they play, i.e. active partners but not sleeping partners. Any observation found in Jayaram v. Ramalinga 1973

TLNJ 393 running contra to what we have (sic) pressed above stands, overruled and we uphold the decision in V. Danmull Sowcar Vs. Syed Ali

Mohamed, , subject to the above qualification that the members of the landlord''s family in the partnership firm should not be sleeping partner.

The above decisions clearly go to show that the petitioner is entitled to maintain an application under S. 10(3)(a)(iii) of the Act on the ground of

requirement of premises for accommodating the partnership business where one of his sons and daughter-in-law are partners.

Mr. Pal Pandian, Learned Counsel for the first respondent would contend that the petitioner has not proved that his son and daughter-in-law,

who are the partners of ""Southern Capacitors"" are active partners, carrying on a partnership business and that they are not sleeping partners. There

is no merit in the above contention of the Learned Counsel. The recitals in the partnership deeds Exs.P30 and P31 do not show that the son and

daughter-in-law of the petitioner are sleeping partners and that they are having 50% share in the partnership business. Further there is no plea in the

counter filed by the respondents that the son and daughter-in-law, who are partners of Southern Capacitors'' are only sleeping partners. The

Authority has rightly hold that the (sic) son and daughter-in-law are not sleeping (sic) of the firm Southern Capacitors.

It was next contended by Mr. Pal Pandian that the son and daughter-in-law of the petitioners for whose benefit the eviction is sought for are

not examined as witnesses and their non-examination is a serious infirmity which detracts from the bona fides of the requirement of the petitioner. In

support of this contention Learned Counsel relied on an unreported judgment of this Court in C.R.P. No. 1988 of 1983 dated 15.12.1989. The

above decision can be distinguished on facts. In C.R.P. No. 1908 of 1983 the learned Judge found that the person who was examined as P.W. 1

knows practically nothing about the tenancy in favour of the respondent in that case as well as the bona fides of the requirement, But, that is not the

position here. P.W. 1 in this case is the brother of the partner S.R. Damani and the husband of the other partner Pushpa Damani. P.W. 1 speaks

about the business carried on by the firm ''Southern Capacitors'', 13, Errabalu Street, Madras-1. His evidence also shows that he represented the

firm ''Southern Capacitors'' before the Sales-Tax Authorities and he knows about business carried on by the partnership firm Southern Capacitors.

Learned Counsel for the respondents would further submit that the consent of the other partners of ''Southern Capacitors'' had not been obtained

for shifting the partnership business from No. 13, Errabalu Street and the partnership business cannot be shifted to the petition premises without the

consent of the other partners and this is also an infirmity which militates against the petitioner''s case that the requirement of the petition premises for

the partnership business is bona fide. This contention of the Learned Counsel for the respondents cannot be countenanced, because, such a plea

was not raised in the counter filed by the respondents. When such a point was not raised in the counter, there is no necessity on the part of the

petitioner to prove that the consent of other partners for shifting the business had been already obtained. Mr. Mohan, Chief Justice, in Aishath

Hajiya v. M/s. Lalchand Kewalram 1989-2-L.W. 123 after the Full Bench answered the reference and while disposing of the civil revision petition

on merits, pursuant to the order made by the Full Bench, dealing with the question of obtaining the partner''s consent, held as follows:

The next question is whether the consent of the other partner is required. In D.N. Sanguari v. A.T. Das, in paragraph 10, it is observed as follows:

In neither of these two passages nor anywhere else in the evidence he has stated that on the terms of the partnership business or even that he

would also occupy the suit accommodation along with his partners on obtaining possession from the appellants

In this case it is admitted by Mr. Raghavan, that this was not raised in the counter. However, he would say that it is for the petitioner to prove that

she had obtained consent. Therefore, where that was not so stated in the petition, the tenant was not called upon to raise this issue. I am unable to

accept this because unless this was put in issue, there was no necessity on the part of the landlady to say that the consent had been contained

already and the other partner has also consented.

Mr. Mohan Parasaran, Learned Counsel for the second respondent would contend that according to S. 2(6A) of the Act, ''member of his

family'' in relation to a landlord means his spouse, son, daughter, grand-children, or dependent parent. The above definition of ''member of his

family'' in S. 2 (6A) does not include a daughter-in-law and, therefore, eviction cannot be sought for by the petitioner for the benefit of his

daughter-in-law also. I am unable to accept this contention of the Learned Counsel for the second respondent. The question as to the meaning to

be given to the expression ''member of his family'' will depend upon the context in which the word is used. The word ''family'' is one of great

flexibility; sometimes the word ''family'' in a broad sense would mean all those who are connected by blood relationship or marriage and, therefore,

are to be considered as belonging to the family. The word ''family'' may be taken as the collective body of persons living in one house or under one

head or manager and may take within its fold a household consisting of parents, sons, daughter-in-law and their children. A Division Bench of this

Court in Angamuthu Ammal v. K. V. Muthu 1984 I MLJ 170 interpreting S. 2(6A) of the Act has held as follows:

In this Act, unless the context otherwise requires ''member of his family'' in relation to a landlord means his spouse, son, daughter, grand-child or

dependent parent"". The opening clause in S. 2 clearly indicates that the definition will apply only when the context to the situation does not call for

any other meaning being given to the words defined in the section. Therefore, ''members of the family'' in relation to a landlord defined in S. 2(6A)

cannot be said always to lake in only the persons mentioned therein viz., the spouse, son daughter, grand child or dependent parent. If the context

so required it is certainly permissible for the Court to hold that any other person"" would also fall with in the meaning of the expression ''member of

his family'' in relation to a landlord. As pointed out by Mr. Srinivasan it cannot be said that the daughter-in-law of a person is not a mother of the

family of the landlord A daughter-in-law is not a person enumerated in S. 2(6-A). However, it must be open to a landlord to maintain a petition for

eviction of a tenant for the needs of his widowed daughter-in-law. The opening clause in S. 2 of the Act has come up for consideration before the

Supreme Court in K. Balakrishana Rao v. Haji Abdulla 1980 I SCC 321. There the Supreme Court dealing with the definition clause in the Tamil

Nadu Buildings (Lease and Rent Control) Act observed as follows:

A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein. The

opening clause of S. 2 of the principle Act itself suggest that any expression defined in that section should be given the meaning assigned to it

therein unless the context otherwise requires.

The Division Bench approved the following observations of this Court in the decision. Asha Bibi v. Habissa Sahie AIR 1957 Madras 583.

Technically the (sic) family may be taken to mean the collective body of person who live in one house and under one head or manager and includes

within its fold a household consisting of parents, children and servants and as the case may be lodgers or boarders. Leader the Musalman Wakf

Validating Act, it is intended to be (sic) in a broad and popular sense. Popularly however the ten indicates persons descended from one common

progenitor ad having a common lineage. It will take in both agnates and (sic) and relations by blood or marriage. The nephews of the settlor are in

this sense the members of his family. Similarly daughter-in-law, the son of a half brother or the son of self-sister.

From the above occasion it follows that a daughter-in-law of a person is a member of the family of the landlord or the purpose of S. 2(6A) of the

Act and eviction can be sought for, for her benefit also under S. 10(3)(a)(iii). On the basis of evidence on record the. Appellate Authority rightly

held that the requirement of the petitioner for the purpose of the partnership business of his son and daughter-in-law is bonafide and entitled to an

order of eviction under 10(3)(a)(iii) of the Act.

The next question that arises for consideration is whether the requirement of the petition premises for the additional accommodation of the

petitioner is bona fide. The case of the petitioner is that additional accommodations required for the purpose of business of the petitioner under the

name and style of ""Wire House"" and for the business of his wife and son under the name and (sic) of ""Damani Brothers"". Ex. P.-14 is the

partnership (sic) entered into between the petitioner''s son and wife for the purpose of carrying on business as agents, Astributors, contractors,

suppliers. Manufacturers, hporters and Exporters under the name and style of M/s. Damani Brothers"". Exs.P-5, P-6 and P-10 relate of the

business of ""Wire House"". Ex. P-10 certificate issued by the bank authorities shows that the petitioner is the proprietor of M/s. Wire house and the

one is being carried on from door No. 20, Murugapper, Steel, Madras-1. It is also admitted by the respondent as R.W.1, that the petitioner is

doing business in portion of the petition-premises. The evidence in this case also discloses that the petitioner''s business was originally carried on in

No. 100, Broadway, Madras-In an area measuring about 1600 sq.ft. which was vacated and handed over to the owner and that he had to core

and occupy the car shed in No. 20, Murugappa Street, which is only 300 sq.ft. The evidence in this case also shows that the petitioner has to

share this 300 sq.ft. with M/s. Damani Brothers consisting of his wife and son for their business and the petitioner Finds it difficult to accommodate

both the businesses in such a small area. Exs.P-5 and Ex. 6 show that the place of business for M/s. Wire House was originally No. 100.

Broadway, Madras-1 and now No. 20, Murugappa Street. Exs.P-7 and P-8 are the lease deeds in respect of No. 100, Broadway and the letter

acknowledging the taking delivery of vacant possession of No. 100, Broadway by the lesser in the year 1983. By reliable evidence has proved

that he was doing business earlier in a place having plinth area of 1600 sq.ft. and the same he had to vacate and come to occupy the portion having

only 300 sq.ft. and as such the present place is not sufficient to accommodate his business and the business of his son and wife. The above

circumstance shows that the requirement of the petitioner to have additional accommodation is bona fide.

Learned Counsel for the respondent would contend that the case of the petitioner is that the petitioner''s business ""Wire House"" and the

business of the petitioner''s son and wife ""Damani Brother"" are carried on in the car shed measuring 300 s.ft. But, the evidence in this case

discloses that the ground floor of the door No. 20, Murugappa street, measuring 300 sq.ft., excepting the portions occupied by the respondents is

in the occupation of the petitioners, that the petitioner has suppressed the fact that he is in occupation at a larger area and not merely 300 sq.ft. and

all these go to prove that the petitioner''s requirement of the premises in question either for additional accommodation or for the business of his son

and daughter-in-law is not bona fide. There is no merit in this contention of the Learned Counsel for the respondents. The case of the petitioner in

para 4 of the petition is that he is carrying on business under the name and style of ''Wire House in the cashed in premises No. 20, Murugappa

Street. The petitioner''s son and his wife are carrying on business under the name and style of ''Daman Brothers'' also in the petition-premises in an

ad joining small place in the car shed. The evidence of P.W. 1 that the area measuring 400 sq.ft. is in the occupation of the respondents that the

petitioner is in possession of 300 sq.ft. and the remaining portion in the ground floor of door No. 20 Murugappa Street is occupied by the

compound wall, lavatories, well, motor room, pumpset etc., (sic) not challenged in the cross-examination. Further, the respondents have not stated

in their counter that the petitioner is actually is possession of a larger area in the petition-premises. Again it has to be remembered that the evidence

in this case discloses that originally till 1983 the petitioner was carrying on business at No. 100, Broadway, Madras-1 in a portion measuring 1600

sq.ft. and he shifted his business to a portion of the petition premises measuring 300 sq.ft. and the portion in the occupation of the petitioner which

is not sufficient to carry on his business and the business of his wife and son. Taking into consideration the evidence available record the Rent

controller as well as the Appellate Authority have rightly held that the petitioner bona fide requires the petition premises for additional

accommodation for the purpose of the business carried on by the petitioner and the business of his son and wife.

The next question that has to be considered is whether the hardship that will because to the respondents in the event of the landlord eviction

being passed will outweigh the advantage that will accrue to the petitioner. Mr. Paul Pandian, Learned Counsel for the first respondent would

contend that he was carrying on business in textiles in the petition premises since 1972, and he developed his business in textiles in the said

premises and has spent Rs. 26,000/-. for furnishing the shop and that the respondent has got stock over Rs. 5,00,000/-. and the outstanding to be

collected is said to be Rs. 3,00,000/-. and that he had invested a huge sum of Rs. 21,00,000/-. and that if he is evicted from the shop he will be

put to hardship which will outweigh the advantage that will accrue to the petitioners. In support of his contention Learned Counsel relied on the

decision reported in M/s. Childrens Choice v. G.K. Adiseshiah 1982 I M.L.J. 411. Mr. Mohan Parasaran Contended that the second respondent

has been running a cycle shop in the petition premises. He and his son are eking out their livelihood and if evicted he will be put to great hardship.

In the counter filed by the respondents they have not specifically pleaded that it is difficult to get alternate accommodation in the same area. R.W.1

in his evidence has not even spoken to the fact that it is difficult to get alternate accommodation in the same area. The second respondent in his

evidence says that it is difficult to find other places to carry on his business. But, he has stated in his evidence that he had not made any effort to

find alternate accommodation. It is clear from the evidence that the respondents have not made any attempt to secure alternate accommodation in

the time area or in any other place for the purpose of carrying on their business. The petitioner has produced Exs.P-26 and P-27 to substantiate his

case that the first respondent is carrying on textile business in another place in the Elephant Gate area. this Court in the decision report in 1979-II-

MLJ 405, dealing with the question of relative hardship held as follows:

Learned Counsel for the petitioner invited my attention to the judgment of the supreme Curt reported in Basti Sugar Mills Co. Ltd. Vs. State of

Uttar Pradesh and Another, The Supreme Court has intend out that in deciding the aspect of relative hardship (sic) party has to prove the relative

advantages or disadvantages and that the entire onus cannot be thrown on the land (sic) prove that lesser disadvantages will be suffered by the

tenants and that they were remediable. The considerations to be taken into account in assessing to relative hardship he also been set out and in

particular it has been pointed at that the inability to get similar accommodation any where in the city would be weighty consideration, but that to

insist (sic) getting alternative accommodation of a similar nature in (sic) same locality will be asking for the impossible.

Applying these tests it is car in the instant case that the respondents have not made an attempt whatsoever to secure alternate accommodation and

having failed to do so they cannot be heard to complain that they are under a disadvantage by reason of the eviction order against them which will

outweigh the advantage to the landlord and therefore, the application for eviction should be rejected. A consideration of the circumstances as

reveale (sic) the evidence disclosed that the tenants will not suffer and disadvantage by an order of eviction being passed against them since they

can always shift their business to similar accommodation and the securing of other accommodation cannot be considered to be hardship that would

outweigh the advantage to the landlord by an order of eviction in his favour.

On the basis of evidence available on record the Rent Controller as well as he Appellate Authority have rightly found that the requirement of the

petition premises in the occupation of the respondents by the petitioner for conditional accommodation is bona fide and that the lordship that will

be caused to the respondents by the order of eviction will not outweigh the advantage to the petitioner. There is no infirmity in the finings of the

authorities below warranting interferes in these revisions. There are no merits in the civil revision petitions and they are liable to be dismissed.

Accordingly the civil revision petitions are dismissed, but, in the circumstances, there is no order as to costs.