Mr. Sha Ukchand, Mrs. Shanthi Devi and U. Ashok Kumar vs Mr. Yogesh

M. Venugopal, J.—The civil revision petitioner is the respondent/tenant in R.C.O.P. No. 199 of 2000 on the file of the learned Rent

Controller viz., the District Munsif, Coimbatore.

The civil revision petitioner/tenant is the appellant in RCA No. 9 of 2003 on the file of the learned Rent Control Appellate Authority viz., the

Principal Subordinate Judge, Coimbatore. The respondent/landlord/petitioner filed R.C.O.P. No. 199 of 2000 on the file learned Rent Controller,

Coimbatore u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act of 1960 praying for an order of eviction directing the

tenant/appellant/revision petitioner to vacate the petition mentioned property and hand over vacant possession of the same. The

respondent/landlord/petitioner filed the aforesaid RCOP petition claiming the petition mentioned property for his own occupation, for a non

residential purpose. The revision petitioner/appellant/tenant filed a counter inter alia stating that the petition lacks merits and that the

respondent/landlord is already running a shop dealing in Electrical in the same premises and number of shops are vacant in the premises and that

the respondent/landlord/petitioner is having two shops on the first floor and kept under lock and key and further that the landlord in occupation of a

non residential area is not entitled for possession of the premises and that the respondent/landlord is having a shop in the first floor and is not visible

and that the work done by the landlord is only servicing which requires no visibility but only skilled persons and equipments to work and that the

petition has been filed with an ulterior motive, with a hidden trick of making the revision petitioner/appellant/tenant to vacate the premises.

The learned Rent Controller by his order dated 10.01.2003 has allowed the petition RCOP No. 199 of 2000 directing the revision

petitioner/appellant/tenant to vacate the petition mentioned property and hand over vacant possession of the same to the respondent/landlord

within two months from 10.01.2003.

Before the learned Appellate Authority viz., the Principal Sub Judge, Coimbatore, the revision petitioner/appellant/tenant preferred RCA No. 9

of 2003.

The learned Appellate Authority viz., the Principal Sub Judge, Coimbatore, has dismissed RCA No. 9 of 2003 on 05.09.2003 confirming the

orders passed by the learned Rent Controller in RCOP No. 199 of 2000 dated 10.01.2003.

Aggrieved against the orders passed by the learned Appellate Authority viz., the Principal Sub Judge, Coimbatore in RCA No. 9 of 2003 dated

05.09.2003 the civil revision petitioner/appellant/tenant has filed the present revision petition CRP (NPD) No. 1849 of 2003 before this Court.

The learned Counsel for the revision petitioner/appellant/tenant urges that the learned Appellate Authority as well as the learned Rent Controller

understood the claim of the respondent/landlord/petitioner as one for additional accommodation for the business carried on by him in the petition

premises and that the learned Appellate Authority has not referred to the statutory provision mentioned in the RCOP petition and simply confirmed

the order of the learned Rent Controller and that the learned Appellate Authority has not taken into consideration the decision of the Hon''ble

Supreme Court reported in Kanniammal Vs. Chellaram, and that there is a bar for the landlord from making an application for the requirements of

the business for owner''s occupation if he is already carrying on business in a portion of the building in which the tenant is also carrying on the

business and therefore RCOP No. 199 of 2000 filed by the respondent/landlord u/s 10(3)(a)(iii) of the of the Tamil Nadu Buildings [Lease and

Rent Control] Act of 1960 is not maintainable per se in law.

It is the further stand of the revision petitioner/appellant/tenant that the claim for additional accommodation can be maintained only u/s 10(3)(c)

of the Act and that the respondent/landlord is having sufficient accommodation both in the ground floor and also in the first floor, vacant non

residential portion for his purported business requirements by means of additional accommodation and that the learned Appellate Authority should

have come to the conclusion that the requirement is not bona fide.

The pith and substance of the plea of the revision petitioner/appellant/tenant is that the respondent/landlord/petitioner cannot lay a claim u/s

10(3)(a)(iii) of the Act in view of the facts mentioned in the RCOP petition and the nature of evidence let in the case and therefore, both the

authorities have come to the erroneous conclusion.

The demised property is situated in an area of 160 sq.feet (16 feet x 10 1/2 feet) as averred in the petition. It is not in dispute that the demised

property is situated in a prime locality in Coimbatore. The revision petitioner/appellant/tenant is a wholesale cloth merchant. The revision

petitioner/landlord is the tenant in the demised property for the last 37 years. The revision petitioner/appellant was inducted as a tenant in the

demised property under the respondent/landlord''s father Pappaji Rao, who died on 11.09.1999. Thereafter, the revision petitioner/appellant is

paying the monthly rent to the respondent/landlord regularly.

As a matter of fact, the respondent/landlord/petitioner requires petition mentioned property for starting his business in servicing of Electronic

equipment and it is the claim of the respondent/landlord that he is not in occupation of any other non residential building in the city and further, that

he is doing business in a small way at his residence and not in a non residential building and therefore, he requires the building for his own

occupation for a non residential purpose.

The learned Counsel for the revision petitioner/tenant for the proposition that the respondent/landlord is prevented from making an application

for the requirement of the business for owner''s occupation if he is already carrying on business in a portion of the building in which the tenant is

also carrying on the business, relied on the decision Kanniammal Vs. Chellaram, wherein it is observed as follows:

Rent Control and Eviction - Bona fide need of landlord - Requirement of non-residential premises in occupation of tenant for purpose of starting

son''s business where residence of landlord located in a portion of same building - T.N. Buildings (Lease and Rent Control) Act, 1960, Sections

10(3)(c)-Held, appropriate section for labndlord to seek eviction of tenant would be Section 10(3)(a)(iii) and not Section 10(3)(c), which only

permits landlord to recover premises if he requires ""additional accommodation"" for the same purpose for which he is using the portion already in his

occupation - On facts, held, appellant landlady rightly sought eviction u/s 10(3)(a)(iii) - High Court erred in allowing respondent tenant''s revision

petition, dismissing appellant''s review petition and setting aside concurrent decree of eviction against respondent - T.N. 10(3)(a)(iii) - Statute Law

- Non obstante clause - Role of.

He also relied on 2003 (2) TLNJ 449 (Dr. Anthony Sheik Shib Pong v. S.E. Mahboob Basha) wherein it is held that:

Tamil Nadu Buildings (Lease and Rent Control) Act - 18 of 1960 as amended Section 10(3)(a)(iii) - Eviction petition - non residential own

occupation should not be in occupation of his own premises - need not proved to be genuine - eviction cannot be ordered.

P.W.1-Yogesh in his evidence has deposed that the revision petitioner/tenant is paying rent to him after the demise of his father on 11.09.1999

and that he issued receipts towards the monthly rent paid by the revision petitioner and that the revision petitioner''s shop is the third one from the 5

corner and that he has studied Diploma in TV and Radio repairs and Ex.P.1 is the Diploma Certificate and that he joined as ''Technician'' in UMS

Company in the year 1994 and he served for 5 1/2 years and for running his own shop, he resigned the job.

P.W.1-Yogesh has further deposed that temporarily, he is running the shop near the stair case climbing portion TV, VCR will come for works

to him and the length of the portion is 6 x 6 feet in length and breath and in the upstairs for running the service centre, it is not convenient and apart

from the petition mentioned property, he has no other building.

P.W.1-Yogesh in his cross examination has deposed that in the shop run by him, there is no name and address and there is no Registration

Certificate and TNGST and in the upper portion of his building, there is one room which is vacant and another one is used by him.

P.W.2-Loganathan, the Advocate-Commissioner in his evidence has deposed that the respondent/landlord/petitioner at the time of his

inspection was keeping the electrical items beneath the stair case and for keeping the electrical items, there is no enough space in the stair case and

that the respondent/landlord was keeping the TV and Tape Recorders in his house and for the two rooms in the stair case, there is only one way

for reaching it and his report is Ex.C.1 dated 17.11.2000 and the sketch is Ex.C.2 dated 17.11.2000.

P.W.2-Thiru. Loganathan, Commissioner in his cross examination has stated that the respondent/landlord/petitioner has kept his belongings

and the belongings are kept in the bed room about which he has mentioned in his Ex.C.1 report and he has not inspected the Kothari Furniture

Godown in the first floor, which was locked and that the respondent/landlord/petitioner for his job is not keeping the name board and that he has

not mentioned about the articles being kept in the bed room specifically.

R.W.1-the revision petitioner/tenant in his evidence has deposed that the respondent/landlord has let out a portion to Kothari Furniture in the

South of the petition property and that it is not correct to state that the respondent/landlord is requiring the petition building for his own occupation.

R.W.2-Premchand in his evidence has deposed that he has not seen the respondent/land lord running his business in the stair case of the

petition building and in that place there is no name board and when Kothari Furniture handed over one room, there was no panchayat and near the

rental portion of the Kothari Furniture, for entering into the respondent/landlord in the respondent/landlord''s house, for getting into upstairs there

are steps and that he has climbed the said steps and seen it.

The learned Counsel for the respondent/landlord contends that the respondent/landlord is residing at Door No. 219 and that the door number

of the petition mentioned property is 217 and that the respondent/landlord has resigned his job from UMS Service Limited for the purpose of

starting his own business in servicing and that the landlord requires petition premises for his own occupation for a non residential purpose and

therefore, RCOP No. 199 of 2000 is maintainable in law.

The learned Counsel for the respondent/landlord relied on the decision 2001 (2) L.W 596 (Khusid Begum and Ors v. Basheer Alam) wherein

it is held thus:

Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Sections 10(3)(c)(a)(iii), 10(2)(i), and 11(4), wilful Default - Objection by

tenant that landlord ought to have applied u/s 10(3)(c) and not u/s 10(3)(a)(iii), not accepted - In view of the distinctive and divisible nature of the

property there can be no doubt that two portions can be enjoyed and sold separately without causing hindrance to each other - Failure to raise

objection in the counter and before the Appellate Authority is another ground not to allow tenant to raise the point in revisional stage.

An instance of welfare legislation causing grave inconvenience and hardship to poor people who are sought to be described as landlords.

Further, reliance was placed on the decision in Sait Nagjee Purushotham and Co. Ltd. Vs. Vimalabai Prabhulal and Others, wherein it is held

as follows:

A. Rent Control and Eviction - Bona fide requirement of landlord- Premises required for expansion of existing business - Eviction suit on ground of

- Maintainability - Held, it is always the prerogative of the landlord to decide for what purpose he requires premises in question, in this case for his

bano fide use of expanding his business - It cannot be a ground to say that landlord is already having his business in other cities and therefore such

need is not a genuine need - It is not tenant who can dictate terms to landlord and advise him what he should do and what he should not - It is

always the privilege of landlord to choose the nature and place of business - Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) -

Section 11(3) - Applicability.

On the side of the respondent/landlord, the decision in Shelat Brothers and etc. Vs. Lodd Narendradas and Others, wherein it is observed as

follows:

(B)...Mere user of a room in residential premises for non-residential purposes - Landlords not deprived from availing benefit of Section 10(3)(a)

(iii) on that account - Landlords'' applications were maintainable.

In regard to the plea that the respondent/landlord is residing at Door No. 219 and the Petition Door No. is 217, it is a new point taken before

this Court, in the considered opinion of this Court.

It is useful to refer to Section 10(3)(a)(iii) of the Tamil Nadu Buildings [Lease & Rent Control] Act, 1960 which runs as follows:

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

possession of the building:

(iii) 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:

u/s 10(3)(a)(iii) of the Act, the conditions for obtaining a non-residential building are

(i) The building should be non-residential in character

(ii) The landlord should be carrying on business on the date of application for eviction.

(iii) The landlord should not be occupying any building belonging to him in respect of the business and claim is bona fide for his business need and

is not found to be indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than the premises already fetched or

with a view to harass the tenant in possession, as per decision Janab Abdul Khader Vs. Hussain Ali and Sons by partner Mir Mahamood Ali, .

The same is the tenor of the decisions in Bank of Baroda Vs. Mahendra Dadha and Others, and Sankaranarayanan Vs. Palaniswami, .

It is pertinent to point out that the essential requirements of Section 10(3)(a)(iii) are:

The building should be non-residential in character.

The landlord should be carrying on business, the meaning to be attached to ''carrying on business'', to be gathered from judicial pronouncement.

He should not be occupying any non-residential building of his own in the city of Madras.

The landlord must satisfy that his claim is bona fide as per decision Krishna Ready and Others Vs. S. Vasudevayya, .

In T. Anandan Vs. Noorjahan, it is held that ""Carrying on business"" is a mixed question of fact and law. Each case will have to be decided on

facts and no general proposition can be evolved as to what constitutes ""Carrying on business"".

In Jayaram Metal Works Vs. G. Jaganathan and Another, , it is observed that ""A petition is maintainable if the business is being carried on in a

premises which is not the landlord''s own"".

In N. Mohambaram Vs. C.K.C.M. Kader Shah and Brothers, it is held that ""The fact that the landlord was storing his business materials in his

residence and has prior experience would not help him to contend that he was carrying on business on the date of filing of the petition"".

In K. Sankar Vs. G.L. Vijayan, it is observed that ""When it is found that the landlord is running a different industrial unit in a non-residential

premises of his own, he is not entitled to seek eviction invoking Section 10(3)(a)(iii)"".

At this juncture, it is pertinent to point out that Section 10(3)(a)(iii) of the Act concerns with the whole building in occupation of a tenant which

is a distinct and separate from the non-residential building in the occupation of the landlord, u/s 10(3)(c) both landlord and the tenant are in the

same building and the landlord requires it for additional accommodation resultantly seeking eviction, as per decision 83 LW 696 (Easwaran

Chettiar v. Subbarayan). It is to be noted that the scope of Section 10(3)(c) of the Act is different from Section 10(3)(a)(iii) of the Act. Each sub-

section will come into operative play under different circumstances. As a matter of fact, if Section 10(3)(c) of the Act is invoked for additional

accommodation, the landlord must be in occupation.

In 1994 (2) LW 661 (A.P. Swamy v. V. Kunjithapatham) it is held that ""The landlord, occupying the first floor of the premises for residential

purposes seeks eviction of tenant, who is carrying on business in the ground floor of the same premises u/s 10(3)(a)(iii). Held, the landlord ought to

have applied for eviction u/s 10(3)(c) only and petition filed u/s 10(3)(a)(iii) is not maintainable.

As far as the present case is concerned, the learned Appellate Authority has observed that the respondent/landlord/petitioner is doing TV,

VCR repair works in the stair case portion. Furthermore, the learned Appellate Authority has also observed in RCA No. 9 of 2003 order dated

05.09.2003 that the requirement of respondent/landlord for conducting his business is bona fide and for conducting the landlord''s business

additional accommodation is required and therefore, ordered eviction of the civil revision petitioner/appellant.

It is not out of place to point out that the learned Appellate Authority in paragraph 13 of the order passed in RCA No. 9 of 2003 dated

05.09.2003 has specifically adverted to the requirement of landlord as one of additional accommodation. Even the learned Rent Controller in his

order passed in RCOP No. 199 of 2000 dated 10.01.2003 in paragraph No. 17 has observed that ""in the stair case carrying of items like TV

etc., in a big way, it will be an hindrance"". In fact, it is the categorical evidence of P.W.1-Yogesh (in cross examination) that out of two rooms, one

is vacant and the other one is used by him.

P.W.2-Loganathan, the Advocate Commissioner in his cross examination has deposed that the Kothari Furniture godown is situated in first

floor, which he has not inspected on account of its locking and that the respondent/landlord has mentioned that Bed room is allotted to his brother

for his stay. Suffice it to state that both the learned Rent Controller and the learned Appellate Authority have not adverted to about the

maintainability u/s 10(3)(a)(iii) of the Act in RCOP No. 199 of 2000 dated 10.01.2003 and RCA No. 9 of 2003 dated 05.09.2003. Inasmuch as

the respondent/landlord who seeks eviction of the revision petitioner/appellant/tenant for his own occupation should not be in occupation of his

own premises as per Section 10(3)(a)(iii) of the Act and since there is a bar under the Act for the respondent/landlord in making an application for

the requirement of business for owners occupation if he is already carrying on business in a portion of the building in which the revision

petitioner/tenant is also carrying on the business as far as the present case is concerned this Court comes to the conclusion that RCOP No. 199 of

2000 on the file of the learned Rent Controller, Coimbatore is not maintainable per se in law and in that view of the matter, the orders passed by

the learned Rent Controller viz., the Principal District Munsif, Coimbatore in RCOP No. 199 of 2000 dated 10.01.2003 and the learned

Appellate Authority viz., the Principal Subordinate Judge, Coimbatore in RCA No. 9 of 2003 dated 05.09.2003 are set aside to prevent the

aberration of justice and resultantly, the civil revision petition is allowed.

In fine, CRP (NPD) No. 1849 of 2003 is allowed. Resultantly, the orders passed by the learned Rent Controller in RCOP No. 199 of 2000

dated 10.01.2003 and the learned Appellate Authority in RCA No. 9 of 2003 dated 05.09.2003 are set aside. RCOP No. 199 of 2000 on the

file of the learned Rent Controller viz., the Principal District Munsif is dismissed. It is open to the respondent/landlord to file a fresh petition as per

the relevant provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 for seeking appropriate relief against the revision

petitioner/tenant in the manner known to law. In the facts and circumstances of the case, the parties are directed to bear their own costs.

Consequently, connected miscellaneous petition C.M.P. No. 13645 of 2004 is closed.