Mr. Uamraj vs Shah Poosaji Samrathmal rep. by its Kartha Champalal

A.C. Arumugaperumal Adityan, J.—This Revision has been directed against the judgment in RCA.No.864 of 2000 on the file of the Court

of VIIth Judge, Court of Small Causes, Chennai, which had arisen out of the order passed in RCOP. No. 869 of 1998 on the file of the Court of

XVth Judge, Court of Small Causes, Chennai. The landlord/respondent herein had filed the said RCOP under Sections 10(2)(i) and 10(3)(a)(iii) of

the Tamil Nadu Building (Lease and Rent Control) Act, (hereinafter referred to as ''the Act'').

The brief averments in the petition are that the respondent is a tenant under the petitioner/landlord in the premises bearing Door No. 58, Perumal

Mudali Street, Chennai, for a monthly rent of Rs. 655/-. The tenancy is for non-residential purpose. The tenant had committed default in payment

of rent from 01.02.1997. The petitioner requires the petition scheduled building for his son who has no other place for conducting or starting new

business of fancy items. Hence, the landlord/petitioner requires the building for his son''s business of fancy items. The requirements of the petitioner

is bonefide and genuine.

The tenant in his counter stated that he has not committed any wilful default in payment of the rent and that to his best of knowledge the

petitioner''s son is not carrying on any business and hence, the petition scheduled premises is not required for the petitioner for conducting a fancy

store for his son.

Before the learned Rent Controller P.W.1 was examined and Ex.P.1 to Ex.P.11 were marked. On the side of the respondent/tenant R.W.1 was

examined and Ex.R.1 to Ex.R.10 were marked. After going through the evidence both oral and documentary the learned Rent Controller has come

to a conclusion that the landlord is not entitled to the relief asked for in the petition, had dismissed the petition. Aggrieved by the findings of the

learned Rent Controller, the tenant has preferred RCA.No.864 of 2000 before the Rent Control Appellate Authority/VIIth Judge, Court of Small

Causes, Chennai. The Rent Control Appellate Authority after giving due deliberations to the submissions made by the learned Counsel on both

sides and after going through the evidence let in before the Rent Controller and also after going through the orders of the Rent Controller, has

confirmed the findings of the learned Rent Controller holding that the tenant had not committed any wilful default, but has allowed the appeal in part

in respect of the findings of the learned Rent Controller u/s 10(3)(a)(iii) holding that the claim of the landlord is bonefide and that the ingredients for

passing an order of eviction u/s 10(3)(a)(iii) of the Act have been made out, held that the petition scheduled premises is required for the

petitioner''s son''s occupation u/s 10(3)(a)(iii) of the Act passed order of eviction giving one month time to the tenant to vacate and handover the

possession to the landlord, which necessitated the tenant to approach this Court by way of this Revision.

Before this Court the tenant had filed M.P. No. 735 of 2008 in CRP.NPD. No. 717 of 2006 taking a new plea that the landlord and his son

became entitled to a share in Door No. 65, Perumal Mudali Street, Chennai, which was purchased by the petitioner''s/landlord''s wife alongwith

three others and that pending RCA she died and hence, the both the petitioner and his son are entitled to inherit the said property and they are co-

owners and entitled to 1/8 share each in the said property. To show the physical features of the property at request of the learned Counsel for the

revision petitioner, a Commissioner was appointed, who had visited the property and filed her report and plan. The photographs enclosed with the

Commission''s report will go to show that the building in Door No. 65, Perumal Mudali Street, Chennai, is only under construction and the same is

lying vacant. Even though the petitioner/landlord and his son are entitled to any share in Door No. 65, Perumal Mudali Street, Chennai, it is to be

proved that either the landlord or his son is in occupation of Door No. 65, Perumal Mudali Street, Chennai, to cliam that the landlord is not entited

to get an order of eviction u/s 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii) of the Act reads as follows:

Section 10(3)(a)(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;

The learned Counsel for the respondent relying on a Judgment of this Court in 1990 (2) LW 289 (Shapoorji Pollanji & Co. (P) Ltd. Salem and

Anr. v. A. Nishar and Anr.), would contend that unless and untill the tenant proves that the landlord or his son is in occupation of any other non-

residential building or any residential building he is not entitled to say that the landlord is not entitled to get an order of eviction u/s 10(3)(a)(iii) of

the Act. The relevant observation in the said Judgment runs as follows:

There is no dispute that the mother of the respondents owned under Ex.A.3 the premises dealt with thereunder and that she had died. On her

death, it is not in dispute, the respondents herein, their two sisters and their father became entitled to fractional interest in that property in

accordance with the personal law governing them. It has been repeatedly held by a series of decisions of this Court that the owning or possessing

of fractional interest in a premises, cannot be equated to the occupation of a residential building of their own in the city, town or village concerned

within the meaning of Section 10(3)(a)(i) of the Act. It would suffice in this connection to refer to Bghava. H.K. v. N.T. Rahmathunissa 99 Lw

865, where it has been laid down that on the mere fact that the landlord is entitled to a fractional share, his claim for own occupation cannot be

negatived u/s 10(3)(a)(i) of the Act. This is also reiterated in Anandan v. K.R. Lakshmanan Chettiar 88 LW 999, where it has been pointed out

that the words ''of his own'' occurring in Section 10(3)(a)(i) of the Act meant that the premises must belong exclusively to the landlord and that,

where the landlord owns and occupies premises of which he is a co-sharer, he can not be said to be in occupation of premises ''of his own''. On

the facts of this case, this principle would stand attracted and the mere possession or occupation by the respondents of a fractional share in the

premises belonging to their deceased mother, cannot deprive them of the right to claim an order for eviction against the petitions u/s 10(3)(a)(i) of

the Act.

Only difference between the facts of the above said ratio and the fact of the case on hand is that in the said ratio the landlord had filed the petitioner

u/s 10(3)(a)(i) of the Act i.e., for residential building, but in the present case the landlord had filed the petition u/s 10(3)(a)(iii) for non-residential

purpose. The revision petitioner has not raised the plea that the landlord and his son are having interest in Door No. 65, Perumal Mudali Street,

Chennai, either before the Rent Controller or before the Rent Control Appellate Authority. It is admitted that while RCA was pending before the

Rent Control Appellate Authority the wife of the landlord died and even thereafter the tenant had not raised the plea which he has raied before this

Court as to the fact that under the sale deed the landlord''s wife had purchased the property under Door No. 65, Perumal Mudali Street, Chennai,

alongwith 3 others and that the landlord and his son are co-sharers.

Now the point is not whether the landlord and his son are entitled to any share in Door No. 65, Perumal Mudali Street, Chennai, or not, but the

point is whether the landlord or his son is in occupation of any of the non-residential portion in Door No. 65, Perumal Mudali Street, Chennai, after

the demise of the wife of the landlord. As held in 1990(2) LW 289 (Shapoorji Pollanji & Co. (P) Ltd., Salem and Anr. v. A. Nishar and Anr.) the

mere fact that the petitioner and his son are having a share in Door No. 65, Perumal Mudali Street, Chennai, will not deprive them from getting an

order of eviction against the tenant u/s 10(3)(a)(iii) of the Act.

The learned Counsel for the respondent would contend that no elaborate preparation is necessary for starting a fancy store for the son of the

landlord. It is admitted that the landlord was doing fancy business upto 1962 and it is in evidence that his son was assisting his uncle in his business

at Bangalore upto to the year 1993 and thereafter, came down to Madras and he is unemployed till date. Relying on a ratio in 1990 TNLJ 138

(Krishnasamy Naicker v. C. Veerabahu Pillai and two Ors.), the learned Counsel for the respondent would contend that for starting a fancy store

business in the petition scheduled building, no elaborate preparation is necessary. Reliance has been placed on the following observation in the said

judgment:

There is no dispute that the business in respect of the carrying on of which the petitioner requires the premises in the occupation of the respondents

is commission business. Ordinarily, no elaborate preparations are necessary for the setting up or the establishment of such a business. Essentially,

the commission business is only bringing the buyer and the seller together and earning a commission either from one or both the parties so brought

together. It is in evidence (vide Exhibit A-15) that the father-in-law of the petitioner had been carrying on commission business and he had also

been assessed to Income Tax. The evidence of P.W.1 further discloses that for some years past, his father-in-law had discontinued the business

and moved to another place. In the course of his evidence, P.W.1 has also stated that he is also desirous of starting the commission business

originally conducted by his father-in-law. With reference to his, a careful consideration of the evidence of R.W.1 does not establish that the desire

of P.W.1 to commence the business has not been made out. Indeed, R.W.1 had not even refuted in acceptable terms the claim of P.W.1 that the

premises is required for the purpose of commencing commission business. Taking into account the nature of the business proposed to be carried

on by the petitioner in the premises, no elaborate preparations as such would be necessary. A name-board, a table and perhaps a chair would be

more than adequate to carry on the business and to secure this, no elaborate preparations also are necessary. The evidence clearly establishes that

if the petitioner requires investment of funds, he has the wherewithal to invest the funds for the purpose of that business. Considering the nature of

the business activities to be carried on in the premises, no elaborate preparation as such would be necessary.

To point out that unless it is not proved by the tenant that the landlord is in occupation of another non-residential building, he cannot contend that

the landlord is not entitled to get an order of eviction u/s 10(3)(a)(iii) of the Act, the learned Counsel for the respondent would rely on a ratio

decidendi in 1990 (1) LW 582 (M.K. Abdur Rashed Sahib v. A.R. Rahimunnissa Begum), wherein the relevant observation runs as follows:

In Kannan A.S. v. S.C.M. Zackeriya 100 LW 213, referred to above, this Court observed as follows: ""This Court has uniformly held that when

the premises are sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the

premises are required who should not occupy premises of his or of her own. The fact that the landlord occupies premises of his own would not

disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own.

The learned Counsel for the revision petitioner would contend that the landlord on the same ground of owner''s occupation had filed RCOP.

No. 1224 of 1996 and the same was dismissed by the learned Rent Controller. The said RCOP was dismissed because in the cross-examination

P.W.1/landlord had admitted that there were four residential portions in the petition scheduled property in RCOP.No.1224 of 1996 and out of

them he was residing at fourth floor and the 2nd & 3rd floors were rented out and there were 12 tenants in the said premises. Against the order

passed in RCOP.No.1224 of 1996, the landlord had preferred RCA.No.663 of 1997. Against the order passed in RCA. No. 663 of 1997,

CRP.NPD. No. 3492 of 2001 was filed before this Court. While allowing the CRP.NPD. No. 3492 of 2001 this Court has observed that

bonefide requirement of the premises was not proved by the landlord. The learned Counsel for the revision petitioner relying on Hameedia

Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, would contend that since an earlier application filed

by the landlord for eviction on the ground of owner''s occupation was dismissed by this Court, the present petition for eviction u/s 10(3)(a)(iii) of

the Act filed by the landlord is not bonafide. The dictum in the said said Judgment runs as follows:

The word ""claim"" in Clause (e) of Section 10(3) of the Act should, therefore, be construed as ""the requirement"" of the landlord or his

deservedness. ""Deserve"" means ""to have a rightful claim"" or ""a just claim"". Since Clause (e) of Section 10(3) of the Act is also applicable to a

petition filed under Sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona

fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of

the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non-residential building of the category

mentioned in Section 10(3)(a)(iii) and to achieve his aim fakes to start moneylending business (for which indeed no specified separate portion in a

building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and

a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non-residential building of his own in his

occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid Sub-clause (iii) are fulfilled. If the

requirement of ""claim"" being ""bona fide"" as contained in Section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the

non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on

business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make

his claim bona fide, the tenancy of no non-residential building will be secure. It will be preposterous to attribute such an intention to the legislature.

Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine.

It is not in dispute in this case that son of the landlord is unemployed and that there is no other non-residential building is in occupation of either of

the landlord or his son. It is also not in dispute that the landlord was doing fancy store business till 1963 and that his son was also assisting his uncle

in his business at Bangalore. It is not in evidence that the landlord''s son is still assisting his uncle at Bangalore in his business. Now, the landlord

requires the petition scheduled premises for his son to start a fancy store business. Under such circumstances, it cannot be said that the requirement

of the building by the landlord is not bonafide or genuine.

The learned Counsel for the revision petitioner relying on Fakir Mohideen Vs. Habibunnissa (died) and Others, would contend that the

landlord who had filed the petition u/s 10(3)(a)(iii) of the Act should not own a building of his own either residential or non-residential in the said

city, town or village and that the subsequent event is to be taken into consideration ie., after the death of the petitioner''s wife both the

petitioner/landlord and his son have become co-sharers of Door No. 65, Perumal Mudali Street, Chennai. As I have observed earlier there is no

evidence on record to show that neither the petitioner nor his son is in occupation of any portion of the said non-residential building bearing Door

No. 65, Perumal Mudali Street, Chennai. Under such circumstances, it cannot be said that the landlord is not entitled to get an order of eviction u/s

10(3)(a)(iii) of the Act. The learned Counsel relied on the following passage in the above said Judgment:

It is settled law that a claim for eviction, on the ground of bonafide own occupation, that requirement must be available to the landlord not only on

the date of petition but it should continue to be there on the date of final adjudication of rights. If, in between the periods, there is a change of

circumstances due to subsequent events, that is also a matter which should be taken into consideration by this Court.

The appellate authority has found that P.W.1 has no building of his own. Ownership or possession of a building by the parents or younger brother

will not disqualify the landlord from getting possession of another building if the person for whose requirement the building is needed, is having no

other building.

....

Under Section 10(3)(a)(i) of the Tamil Nadu Buildings (lease and Rent Control) Act, a landlord is entitled to get possession of the building if he or

any member of his family is not occupying a residential building of his own in the City, Town or village concerned. In Section 10(3)(a)(ii) of the said

Act, it is further said that in the case of a non-residential building also, in case if the landlord or member of his family is not occupying a building of

his own, he is entitled to get possession. In both Sections 10(3)(a)(i) and 10(3)(a)(iii), one of the qualifications for getting possession is that the

landlord or the person for whose requirement the building is sought to be evicted should not own a building of his own (whether the requirement is

residential or non-residential) in the City, Town or Village. It is on the basis of the words ""his own"", learned Counsel for the landlady argued that

even if P.W.1 has now become the landlord, building No. 150 cannot be said to be his own. None has a case that after the death of the landlady,

a partition has been effected, and P.W.1 was given any right over the building. At the time of arguments, both the sides argued the case as if P.W1

continues to be a co-owner in regard to Building No. 150, Avvai Shanmugham Salai, which is situated in a land of more than two grounds. If

P.W.1 is a co-owner, what is the legal consequence.

Under such circumstances, unless the building bearing Door No. 65, Perumal Mudali Street, Chennai is partitioned and a share is allotted to the

landlord herein and his son, it cannot be said that the landlord is in occupation of another non-residential building. For the same proposition of law

2006(1) CTC 333 (Shahjahan v. Janath Ashraf Uduman) was also relied by the learned Counsel for the revision petitioner, which has no bearing

to the present facts of the case.

The learned Counsel for the respondent would contend that since the landlord and his son have become co-onwer of the building bearing Door

No. 65, Perumal Mudali Street, Chennai, due to the death of the wife of the landlord/petitioner will not confer undue bonafide to the tenant. In

support of this contention the learned Counsel for the respondent relied on 2006(3) KLT 284 (Prema Ramakrishnan v. Salmath). Further, the

learned Counsel for the respondent would contend that even though the landlord and his son are entitled to a share in Door No. 65, Perumal

Mudali Street, Chennai, they cannot be forced to occupy the said premises alongwith the other undivided co-sharers. In support of this contention

the learned Counsel would rely on a decision in 2007(4) MLJ 388 (Julieta Antonieta Tarcato v. Suleiman Ismail), wherein it has been held as

follows:

In a suit for eviction for bonafide personal need of landlord, landlord cannot be compelled to share accommodation in another premises. Even if

other members of landlord''s family no longer required the suit premises, the requirement of landlord for personal need survives.

Relying on Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, , it was contended on behalf of the landlord/respondent herein that

the subsequent events which tookplace after the filing of the RCOP due to protraction of litigation no importance can be attached to the same. The

relevant observation at paragraph 7 of the said Judgment runs as follows:

It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long

interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the

building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His

need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see

the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through

all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party

succeeded in prolonging the matter for such unduly long period.

Under such circumstances, I do not find any reason to interfere with the findings of the Rent Control Appellate Authority in RCA. No. 864 of

2000 on the file of the VIIth Judge, Court of Small Causes, Chennai.

In fine, the Revision is dismissed confirming the orders of the Rent Control Appellate Authority in RCA. No. 864 of 2000 on the file of the

VIIth Judge, Court of Small Causes, Chennai. Time for vacating the premises three months from today. Connected Miscellaneous Petition is also

dismissed. No costs.