M/s. Raja Dresses vs A. Lalithamba (Deceased) and A.V. Subramania Sarma

B. Rajendran, J.—The deceased Lalithamba, who is the owner of the petition mentioned premises, has filed RCOP Nos. 950 and 951 of

2001 u/s 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for eviction of the tenants on the ground of ''additional

accommodation''. The Rent Control Original Petitions were dismissed on 13.09.2002 against which the landlady filed R.C.A. Nos. 988 of 2003

and 1159 of 2003 respectively before the Rent Control Appellate Authority and they were allowed on 22.01.2013. As against the same, the

tenants are before this Court with these two Civil Revision Petitions. The landlady has filed RCOP Nos. 950 and 951 of 2001 contending that her

son is running a Printing Press in the name and style of M/s. Packo Graphics in the rear side of the petition mentioned premises. Since the printing

press is in the rear side of the petition mentioned premises, it is not easily identifiable by the customers which had seriously affected the business

prospects of her son. Further, there is a 2''6"" passage adjacent to the stair case which is very narrow and shifting or removal of machinery has

become a difficult task. The petitioner''s son therefore intended to have an office space in the petition mentioned premises and for this purpose, the

landlady requested the tenants to vacate and handover the vacant possession of the petition mentioned premises so as to enable her son to carry

on the printing press business. The landlady also caused a statutory notice dated 29.12.2000 reiterating her demand. Thereafter, the landlady has

filed RCOP Nos. 950 and 951 of 2001 before the learned Rent Controller praying to direct the tenants to vacate and handover the petition

mentioned premises for being used as an additional accommodation by her son to carry on the printing press business.

The Rent Control Original Petitions have been resisted by both the tenants by filing counter. According to the revision petitioners/tenants, the

intention of the landlady is only to harass the tenants who have been carrying on their business for the past 20 years and earned reputation thereof.

According to the tenants, the requirement for additional accommodation is not bonafide but malafide. The son of the landlady is not carrying on any

business, as alleged.

Before the Rent Controller, on behalf of the landlady, A.V.S. Subramania Sharma, the respondent herein, was examined as PW1 and Exs. P1

to P7 have been marked. On behalf of the tenants, both the tenants have examined themselves as RW1 in the respective Rent Control Original

Petitions, however, they have not filed any documentary evidence. One Sarangapani was examined as a Court Witness through whom Ex. CW1

was marked.

The learned Rent Controller, after analysing the oral and documentary evidence held that the requirement of the landlady for eviction of the

tenants on the ground of additional accommodation is not bonafide but emanated out of a malafide intention and dismissed the Rent Control

Original Petitions. As against the same, the landlady has filed Rent Control Appeals. The Appellate Authority found that the tenants have not

chosen to give reply to the legal notice dated 29.12.2000, Ex. P5, sent by the landlady and thereby the tenants have indirectly admitted the running

of a printing press in the rear side of the petition mentioned premises. The Appellate Court also found that the father of the tenants have leased out

1540 square feet of land from the Corporation of Chennai and receiving the lease rent and therefore when the family of the tenants is in enjoyment

of lease hold property, the tenants can utilise such property for their business. Therefore, the Appellate Authority allowed the Appeals by setting

aside the orders passed by the learned Rent Controller.

The learned counsel for the tenants/revision petitioners would vehemently contend that for proving the requirement for additional

accommodation the onus is on the landlady to show that the requirement for additional accommodation is very much necessary and that the

additional accommodation sought for by her, if not granted, will result in greater disadvantage than the one that would be caused to the

tenants/revision petitioners, if they are ordered to be vacated. According to the counsel for the revision petitioners, the son of the landlady was not

at all doing any business in the petition mentioned property or it was proved by any documentary evidence. Even the licence issued in favour of the

son of the landlady expired during the year 1999 and it was not renewed when the Rent Control Original Petitions have been instituted by the

landlady. When the landlady has not proved that her son is carrying on any business in the rear side of the petition mentioned premises, the

question of granting the relief of additional accommodation does not arise. The landlady has also not filed any other documentary evidence such as

sales tax registration or other statutory registration in the name of her son to show that he is carrying on a printing press business in the rear side of

the petition mentioned premises. Therefore, the learned counsel for the petitioners would submit that the appellate authority erred in allowing the

Rent Control Appeals preferred by the landlady and prayed for allowing the Civil Revision Petitions.

Per contra, the learned counsel appearing for the landlady/respondent herein would contend that the appellate Authority has taken into account

the entire evidence made available while allowing the Rent Control Appeals. According to the learned counsel for the landlady/respondent, Ex. P2

is a licence issued for Packo Graphic in the name of the son of the landlady by the Directorate of Industries which would show that the son of the

landlady has obtained licence for carrying on offset printing business, multi colour cartons used for packing purpose, card board boxes, picture

vanish coating, book printing and cartons punching works etc., Ex. P2 is therefore not a licence for only carrying on printing business but for 6

allied business. The learned counsel further relied on Ex. P3 sketch and contend that it would clearly indicate the portion wherein the printing press

business is carried on. Ex. P3 further make it clear that the petition mentioned premises are adjacent to the portion where the printing press

business is carried on and one of the portions leads to the doorway to the portion where the printing press business is carried on. It is further

contended by the learned counsel for the landlady/respondent that the revision petitioners are brothers and their father is the lessee of the property

belonged to the Corporation of Chennai, which is situate just 50 meters away from the petition mentioned premises. In that lease hold property

there are 8 shops and after the demise of the father of the revision petitioners, all the four children, including the revision petitioners, have taken two

shops each. Therefore, if the revision petitioners are ordered to be vacated, the disadvantage that may be caused to them will be minimal than the

disadvantage caused to the landlady, if they are not ordered to be evicted. It is also admitted by the tenants in their cross-examination that the son

of the landlady is carrying on printing press business in the rear side. In fact, the tenants/revision petitioners have denied that their father was not

given lease of any shops nor the revision petitioners were allotted two shops each. Therefore, the landlady/respondent herein has taken out an

application in M.P. No. 528 of 2002 in RCOP No. 950 of 2001 to direct the Corporation to produce certain documents. In the said application,

the tenants/revision petitioners have filed a counter admitting that the shops have been allotted to their father and not in their name. It was further

admitted that after demise of their father Late. Amjad Ibrahim, the shops have been divided among the four brothers, including the revision

petitioners. Therefore, the learned counsel for the landlady/respondent would submit that it was proved beyond reasonable doubt that the

tenants/revision petitioners are in possession of two shops each which are 50 meters away from the petition mentioned premises, while so, the

disadvantage that may be caused to the tenants/revision petitioners if they are ordered to be evicted will be minimal and he prayed for dismissal of

the revision petitions.

In this context, the learned counsel for the landlady/respondent herein relied on the decision of this Court reported in S.C. Dhatchayani Vs. A.

Sathar Essa, to contend that the landlord can seek the eviction of a non-residential tenant or residential tenant for the purpose of additional

accommodation for residential use or non-residential use as the case may be.

I heard the counsel for both sides. The short point for consideration in these Civil Revision Petitions is whether the first appellate Court is right in

holding that the landlady/tenant has proved by legally acceptable evidence that her claim for additional accommodation is bonafide to enable her

son to carry on printing business in the petition mentioned premises.

It was the contention of the tenants/revision petitioners herein that the son of the landlady was not at all carrying on business in the rear side of

the petition mentioned premises. In this connection, it is necessary to analyse the evidence adduced before the learned Rent Controller. The

respondent herein was examined as PW1 and deposed that he is carrying on business of printing in the rear side of the petition mentioned premises

and to substantiate the same, he has filed the licence, Ex. P2 issued in his favour. It is seen from the records that Ex. P2 expired even on

25.12.1999. As rightly pointed out by the first appellate Court, mere expiry of licence will not disprove the claim of the landlady that her son is

carrying on business in the rear side of the petition mentioned premises. In the evidence of RW1, he has categorically deposed that he is using

printing machines in his business. Further, it is admitted by the tenants/revision petitioners in their evidence that when they went to tender the rent,

they only saw some chairs and table in the alleged space where the son of the landlady is alleged to have been carrying on business and therefore

they denied that the son of the landlady is not at all carrying on any such business. Whereupon, the respondent has produced Ex. P3 sketch to

show the topographic view of the petition mentioned premises which clearly demarcates the petition mentioned premises and the premises where

the son of the landlady was carrying on printing business. In fact, one of the doors of the petition mentioned premises leads to the space which is

used by the son of the landlady for carrying on printing business. Further, in Ex. P5, legal notice dated 29.12.2000, the landlady has categorically

mentioned that the petition mentioned premises is required for her son to carry on printing business. As rightly pointed out by the first appellate

Court, the tenants/revision petitioners have not chosen to send a reply repudiating the averments contained in the notice dated 29.12.2000. The

first appellate Court also dealt with the rival contentions urged before it and came to a definite conclusion that the respondent herein, who is the son

of the landlady, is carrying on printing business in the rear side of the petition mentioned premises and based on such factual finding, it ordered for

eviction of the tenants/revision petitioners herein.

In the decision relied on by the learned counsel for the respondent reported in S.C. Dhatchayani Vs. A. Sathar Essa, the learned single Judge,

after considering the various decisions, has held in para-38 and 40 as follows:-

We have seen above that while construing the word ""occupation"" appearing in Section 10(2)(vi) for determining whether a tenant has ceased

to occupy, the Courts were liberal in holding that the tenant will be deemed to be in occupation, even if he was not carrying on business but was

only keeping his business articles in the premises under lock and key. Therefore, as a natural corollary, even for the purpose of Section 10(3)(c),

an application for eviction will be maintainable, against a tenant, keeping the premises under lock and key with his business articles kept inside,

though he is not actually carrying on business there. After allowing such a benefit to a tenant in the very same Section where the word ""occupying

is used in the same sense both with regard to the tenant and with regard to the landlord, it may not be justified to assign a different meaning to the

word only in so far as the landlord is concerned. In other words, if we take a hypothetical case where a landlord is actually in physical occupation

of a portion of the same building and he files an application for eviction against a tenant who is not carrying on business but who is only keeping his

business articles under lock and key, the tenant may not be heard to contend that he is not occupying the remaining part of the building, within the

meaning of Section 10(3)(c). In such cases, the tenant will be construed to be in occupation of the remaining part of the building. Therefore, what

applies to him should apply equally to the landlord while construing the word ""occupation"" in Section 10(3) in the same sense with regard to both

the tenant as well as the landlord is clear from a bare reading of the same....

...

Applying the above principles to the case on hand, it is seen that the petitioner in the Civil Revision Petition has admittedly kept a portion in the

same building under her possession and control and has demonstrated a clear intention to occupy the whole building, immediately upon the

vacation of the portions in the occupation of the tenants. Today she is not actually residing there in view of the admitted averment that it is not

sufficient to accommodate her family. It does not mean that she is not in occupation. Therefore, the case would squarely fall u/s 10(3)(c) and the

Appellate Authority erred in holding otherwise.

I respectfully concur with the conclusion arrived at by the learned single judge of this Court in an identical case.

The next question for consideration is whether the tenants/revision petitioners are having properties of their own adjacent to the petition

mentioned premises. In fact, the tenants/revision petitioners have admitted in the counter filed to the application in M.P. No. 528 of 2002 in RCOP

No. 950 of 2001 filed by the respondent to direct the Corporation to produce certain documents. It has been specifically admitted by the

tenants/revision petitioners that the shops have been allotted to their father Late. Amjad Ibrahim, after his demise, the shops have been divided

among the four brothers, including the revision petitioners. It is further admitted that the said shops are situate just 50 meters away from the petition

mentioned premises. It is also admitted that 8 shops have been taken on auction by the father of the tenants and after the demise of their father, 2

shops each came to be allotted to the tenants/revision petitioners herein. In para-3 of the counter in MP No. 528 of 2002, it was stated as

follows:-

3...It is the admitted case that the shops referred was allotted to our father and not to us. The shops, licence etc., are not in the name of these

respondents. Even in the prayer the petitioner, seeks to summon for evidence the alleged records with regard to the allotment in favour of our

father Late. Mr. Amjad Ibrahim, we admit that the shops belonged to our father Late. Mr. Amjad Ibrahim and thereafter are with our other

brothers. The same is not in our possession. Without prejudice, this respondent submits that since it is an admitted case that the shops were

allotted to Mr. Amjad Ibrahim, the same has got no nexus to the present proceedings. Since we admit the allotment, in the name of our late father

Amjad Ibrahim, the present petition to reopen the evidence and summoning the DRO, Land and Estate Sections, Chennai Corporation is

unwarranted.

Taking into consideration the above said admission made by the tenants/revision petitioners, I am of the view that the disadvantage that may be

confronted by the respondent will be more than the disadvantage that may be caused to the tenants/revision petitioners if they are ordered to be

evicted from the petition mentioned premises. Therefore, in the light of the above findings, I am of the view that the Appellate Authority is justified

in ordering eviction of the tenants/revision petitioners and I do not find any reason to interfere with the same. Accordingly, the Civil Revision

Petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Time for vacating and handing over the vacant

possession of the petition mentioned premises by the tenants/revision petitioners to the respondent is one month.