M.V. Venkiduwami Pillai (Died) and 10 Others vs S. Swaminatha Rao

A.R. Lakshmanan, J.—The unsuccessful tenant is the petitioner in this Civil Revision Petition, which is directed against the order of the

Appellate Authority/Subordinate Judge, Nagapattinam, in R.C.A. No. 42 of 1988 dated 18-6-1991, reversing the order of the Rent

Controller/District Munsif, Thiruthuraipoondi, in R.C.O.P. No. 13 of 1986 dated 29-2-1988. During the pendency of the revision, the tenant M.

Venkiduswami Pillai died on 14-12-1993 and his legal representatives were brought on record as petitioners 2 to 11 by order dated 9-8-1996 in

C.M.P. No. 3769 of 1994.

The respondent/landlord filed R.C.O.P. No. 13 of 1986 against the tenant M. Venkiduswamy Pillai for eviction on the grounds of wilful default

in the payment of rent, bona fide requirement of the building for owner''s occupation and causing damage to the building concerned. The tenant

contested the eviction petition contending inter alia that the landlord had refused to receive the rent tendered by him. The landlord had also refused

to give the particulars of bank account to enable the tenant to deposit the rent in the bank account The requirement of the landlord is not bona file.

The Rent Controller dismissed the petition. Against; the same, the landlord filed R.C.A No. 42 of 1988 before the Appellate Authority, who

reversed the decision of the Rent Controller and allowed the appeal and ordered eviction giving two months time to the tenant to vacate the

petition mentioned premises. Aggrieved by the said judgment of the Appellate Authority, the tenant has preferred the above revision.

I have heard Mr. K. Jayaraman for the petitioners and Mr. P.L. Narayanan for the respondent.

Mr. K. Jayaraman, learned counsel for the petitioners contended that the tenant has not committed any default, much less willful default, in the

payment of rent and since the landlord refused to accept the rent tendered by the tenant. The refusal by the landlord has to be construed as willful

and therefore, the Appellate Authority ought to have held that the tenant has not committed any default. It is also contended that the Appellate

Authority ought to have drawn an adverse inference against the landlord from the fact of his refusing to receive the tenant''s letter containing the true

state of affairs. On the question of bona fide requirement of the building for own use, it is contended that the case put forward by the landlord was

false and unsustainable. There was no necessity for the landlord to shift his business to Muthupettai. It is further stated that the tenant''s son is doing

business independent of the tenant and therefore, the Appellate Authority ought to have seen that the tenant cannot use his son'' building for his

business. On the question of causing damage to the building, it is contended that the Appellate Authority ought to have held that minor damage to

the building is inevitable in the business of textiles and therefore, the same will not affect the building materially. Lastly it is contended that the

Appellate Authority ought to have held that the tenant has no other building except the petition building to carry on his business. Since the reasons

given by the Appellate Authority are faulty and unsustainable, the judgment of the Appellate Authority is liable to be interfered with.

Per contra, Mr. P.L. Narayanan, learned counsel for the landlord contended that the property was leased out to the tenant for running a shop at

the rate of Rs. 150/- per month. Due to personal reasons, the landlord has started a cloth business at Pandanallur in a rented premises. Since he

wants to return back to Muthupettai and also shift his cloth business from Pandanallur to Muthupettai, he informed his intention to the tenant and

requested him to vacate the above premises in order to enable him to start his cloth shop therein. Initially, the tenant has agreed to vacate the same

as and when he gets a suitable premises. At the instance of the landlord, a shop situated in the opposite side to the premises in question and

belonging to his brother was given to the tenant and a sale deed was also executed in the name of tenant''s son Dhanapalan. who is living with the

tenant in the joint family. In the said premises, the tenant has started a joint family business and is running the same. Even thereafter, the tenant has

not vacated the premises in question. Further, the tenant has committed willful default and also caused damage to the walls and the floor in the

premises in question which impaired materially the value of the building. In the circumstances stated above, the landlord was constrained to file the

eviction petition praying for the eviction of the tenant from the demised premises on the grounds of bona fide personal occupation, wilful default in

payment of rent and acts of waste. The Rent Controller dismissed the eviction petition against which the landlord filed an appeal and the Appellate

Authority allowed the same after considering all the facts, law and evidence on record. It is also contended that the landlord has filed the eviction

petition in the year 1986 and for the past several years, the landlord is carrying on his cloth business in a rented premises at Pandanallur and

because of the pendency of the matter for the last ten years in various forums, the landlord is not able to shift his business from Pandanallur to the

demised premises at Muthupcttai as desired by him and to the convenience of himself and his family On the other hand, the tenant is carrying on

business both in the property situated in the opposite row of the demised premises, which was purchased by him through the landlord from the

brother of the landlord, and also in the demised premises. The tenant is also conveniently. comfortably and happily earning on his business in the

property purchased by him from the brother of the landlord and there is no need for him to use the demised premises also for his business

However, the tenant has filed the revision only to drag on the proceedings and to squat on the demised premises under the guise of pending

litigation.

I have gone through the entire pleadings and of the judgments of the authorities below. I am unable to countenance the argument advanced by

the learned counsel for the tenant. Before the Rent Controller, Exs. A-1 to A-5 were marked on the side of the landlord and Exs. B-1 to B-18 on

the side of the tenant. The landlord has examined himself as P.W. 1 and the tenant as R.W. 1. However, for the reasons recorded in his order, the

Rent Controller dismissed the eviction petition. The Appellate Authority, for the reasons recorded in its order, has reversed the order of the Rent

Controller and ordered eviction. I have also perused the original documents filed in the proceedings. The entire reasoning of the Appellate

Authority, especially with regard to the ground of own use of the landlord, are sound and sustainable in law. It is not in dispute that the landlord is

already having a running javuli business in a different town called Pandanallur and wants the premises in question for the purpose of shifting his

business to Muthupettai in his own building, which was rented out to the tenant.

The Argument of the learned counsel for the petitioners that the Appellate Authority should not have opined that the landlord wants to shift the

business from Pandanallur to Muthupettai is totally unacceptable. It is not for the Court or for the tenant to dictate terms. Admittedly, the landlord

is earning on business in a different place and he wants to shift his business to Muthupettai Town and to earn'' on his business in his own building.

The reason for the shifting is also clearly stated in the eviction petition and also in evidence. The landlord has stated that he has incurred heavy loss

in the business at Pandanallur. Further, Muthupettai is the ancestral place of the landlord wherein he was previously running his family trade of

Jawuli business and then only he shifted the business to Pandanallur. It is now stated by the landlord that he has become a heart patient and

therefore, he wants to shift his business back to Muthupettai Town and also to train his sons in the trade, because his mother and brothers are in

Muthupettai Town. Considering all these points, the Appellate Authority has opined that the requirement of the premises by the landlord for his

own business is genuine and bona fide.

The contention of Mr. K. Jayaraman, learned counsel for the petitioners, that the landlord''s plea of own user is only a ruse to demand further

rental advance and exorbitant rent from the tenant is fallacious. It has been clearly denied in all the notices sent by the landlord to the tenant. It is an

admitted fact that the landlord has been asking the tenant to vacate not all of a sudden but since long for shifting his own business to the petition

mentioned building. There is absolutely no evidence to prove that the landlord has demanded further advance and enhanced rent as alleged by the

tenant. It is an admitted fact that the landlord has no other non-residential building of his own at Muthupettai except the petition mentioned building

for shifting his business, whereas the tenant has non-residential building for his business and that building is situated just opposite to the demised

premises. It may be true that the building was purchased in the name of the tenant''s son Dhanapalan, who is an undivided member of the joint

family and all of them are living together. Therefore, I have no hesitation to hold that the building is required for the bona fide requirement of the

landlord for his own use. The finding of the Appellate Authority in this regard does not suffer from any infirmity or illegality and therefore, the same

is liable to be confirmed.

It is contended by Mr. K. Jayaraman, learned counsel for the petitioners that since the landlord has refused to receive the rent from the tenant

and also refused to specify the name of the bank to enable him to deposit the rent, the Court below has committed an error in holding that the

tenant has committed willful default in payment of rent. It is the case of the landlord that the tenant is in arrears from January to June, 1986. It is not

the case of the tenant that he has paid the rent regularly every month on the due date. It is seen from Ex. B-7 money order receipt dated 7-3-

1986. that a sum of Rs. 300/- had been sent by way of rent for January and February, 1986. It is thus seen that the tenant has sent the rent for two

months. The tenant has not taken steps to pay the rent regularly. It is settled law that it is the duty of the tenant to pay the rent regularly every

month on the due date and that the landlord need not chase the tenant to get the monthly rent. Therefore, the finding of the Appellate Authority

ordering eviction on the ground of willful default in payment of rent does not suffer from any infirmity or illegality and as such the said finding is

confirmed.

The landlord has also specifically denied the allegation of the tenant that the petition for eviction has been filed since the landlord has demanded

a sum of Rs. 5,000/- by way of advance and also demanded exorbitant rent There is no evidence let in by the tenant to disprove the case of the

landlord in this regard.

The Appellate Authority has orders eviction also on the ground of causing damage to the building. It is in evidence that the tenant has caused

some minor damage to the building in the course of his carrying on the textile business In my opinion, minor damage to the building is inevitable in

the business of textile, which admittedly the tenant is carrying on in the petition building. A rightly pointed out by Mr. K. Jayaraman, learned

counsel for the petitioners, the minor damages it any will not affect the building materially or a value. I, therefore, hold that the eviction order on this

ground by the Appellate Authority is non tenable in law. However, it is the duty of the tenant to make good all the damages caused by him to the

demised premises in the course of his business

Mr. K. Jayaraman learned counsel for the petitioners, contended that if the tenant is vacated from the demised premises, it will cause of

inconvenience to the tenant and he will be deprived of his right to carry on the business in the premises in question. Such an argument cannot at all

be countenanced. In this case, on the admitted fact it is clearly established that the landlord is carrying on business in Pandanallur in a rented shop

and that he is not owning any other non-resident premises at Muthupettai except the premises in question to carry on his business. Therefore in has

opinion, the landlord is entitled to an order of eviction, since he has proved and established that he bona fide requires the premises for his own

occupation. The need, in my opinion, is genuine. The tenant may, no doubt, be put to inconvenient by being asked to vacate the demised premises

but that will not deprive the landlord''s bona fide requirement of the premises for his own occupation and viewed in this matter, the order of the

Appellate Authority ordering eviction of the tenant has to be upheld.

The landlord filed CMP. No. 8945 of 1996 to receive seven documents as additional evidence in this revision, as Exs. A-6 to A-12 It is seen

from the affidavit filed in support of the said petition that the tenant Venkutaswami Pillai during his lifetime had purchased Shop No. 72 in the name

of his son V. Dhanapalan. which is just opposite to the demised shop and a certified copy of the said sale deed dated 6-5-1981 is filed as

Document No. 1. That shop originally belonged to the landlord''s brother Shivaji Rao and at the instance of the landlord, the same was sold to the

tenant who purchased it in the name of his son V. Dhanapalan, primarily with a view to facilitate the tenant to move out of the demised premises.

But, even after the said purchase, the tenant has not done so. It is contended by the learned counsel for the landlord that this conduct of the tenant

shows the tenant''s mala fide.

It is also stated that the tenant possesses several other shops and buildings which are evidenced by sale deeds dated 25-11-1987, 25-6- 1990

and 21-5-1995. The property purchased under the sale deed dated 21-5-1995 is another shop bearing No. 21 in the same Victoria Bazaar and

this is two shops away from the demised ship viz., No. 23, Victoria Bazaar, The certified copies of the sale deeds were filed as Document Nos. 2,

3 and 4 respectively. It is stated that the landlord was earning on textile business in two shops at Pandanallur and since he sustained loss, he

restricted it to one shop at Pandanallur, which is also not doing well. In this regard, the landlord has filed a certificate dated 7-12-1992 given by

the Assistant Village Officer. Pandanallur as Document No. 5. Document No. 6 dated 5-9-1992 is the rental receipt issued by the landlords

landlord at Pandanallur. It is stated that the legal heirs of the tenant are very affluent people and to prove the same the landlord has filed the

certificate dated 5-7-1996 given by the Village Administrative Officer Muthupettai.

It is stated by the landlord that these documents were not produced either during the trial before the Rent Controller or before the Appellate

Authority because of the fact that either they were subsequent documents after disposal of the appeal or those documents were not available

during the said proceedings. According to the landlord, they are relevant piece of evidence which goes to the root of the case and which will also

establish the bona fide need of the demised premises for the landlord''s own use.

Counsel for the tenant resisted the petition for additional evidence stating that the landlord could have filed these documents either before the

Rent Controller or before the Appellate Authority and having failed to do so, the landlord could not be now allowed to file these documents as

additional evidence. The reasons given by the landlord for not filing these documents before the authorities below are not convincing and therefore

the petition should be rejected.

The contention raised by the learned counsel for the petitioners in regard to the maintainability of the above petition is not sustainable in law.

The documents filed by the landlord are all certified copies of sale deeds and certificates given by village officials and one rent receipt. Therefore,

the genuineness of those documents cannot be doubted. Those documents would go to show that the tenant is the owner of other shops which

were purchased by sale deeds dated 25-11-1987, 25-6-1990 and 21-5-1995 and that the property purchased under the sale deed dated 21-5-

1995 is a shop in the same Victoria Bazaar two shops away from the demised shop. This Court can take into consideration the subsequent events

in view of the decision of the Supreme Court reported in M/s. Variety Emporiun v. V.R.M. Mohamed Ibrahim Noma (1985) 1 M.L.J., (S.C.). 1

= 98 L.W. 26. The documents referred to above and filed as additional evidence are necessary for deciding the question involved in this revision.

17-A. Mr. K. Jayaraman, learned counsel for the petitioners vehemently opposed the petition to receive additional evidence contending that the

provisions of the CPC are not applicable to the Tamil Nadu Buildings (Lease and Rent Control) Act and the petition to receive additional evidence

in this revision filed u/s 25 of the Rent Control Act is not maintainable. There is no force in the contention of Mr. K. Jayaraman, counsel for the

petitioners. This Court in T.N. Krishnamoorthy Vs. Jagat Textiles, has held that the provisions of the CPC are applicable to the revisions filed

before this Court u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The said decision has been approved by a Division Bench of

this Court in Arya Vysia Samajam Vs. Murugesa Mudaliar and Others, . In view of the above decisions, it has to be held that the provisions of the

CPC are applicable to the revision petitions filed before this Court u/s 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.

17-B. This apart, the petition has been filed under Order 41. Rule 27., C.P.C., to receive the documents as additional evidence in this revision.

Therefore, the said petition is maintainable and the documents now filed can very well be received as additional evidence. In my opinion, the

documents which are now sought to be produced as additional evidence are necessary for deciding the issue involved in this case, particularly the

issue in regard to the requirement of the premises by the landlord for his own occupation. The tenant has not denied the truth or the existence of the

sale deeds referred to above. Therefore, M.P. No. 8945 of 1996 is allowed and the documents filed therein are received as additional evidence

and marked as Exs. A-6 to A-12.

In the instant case, there can be no manner of doubt that the building was required for the own occupation of the landlord. The Appellate

Authority has rightly accepted the case of the landlord on the bona fide requirement of the premises for own occupation. The Appellate Authority

has considered the natural consequences which flow from a comparative assessment of the advantage and disadvantage if a decree for eviction

follows. It is no doubt true that the tenant will have to be ousted from the shop if a decree for eviction is passed, but such an event would happen

whenever a decree for eviction is passed. This by itself would not be a valid ground for refusing the landlord''s claim for a decree for eviction.

I have also considered the evidence and of the judgments. It has been established that the landlord bona fide requires the premises for shifting

his business from Pandanallur to Muthupettai. It has also been established that the demised shop is absolutely necessary in order to augment his

income and to prevent any further loss from the business which he is now carrying on in a rented premises at Pandanallur. Being the owner of the

shop, he cannot be denied eviction and be compelled to carry on his business in a rented premises in another nearby town. Great prejudice will be

caused to the landlord if his petition for eviction is dismissed. The tenant has not proved that the landlord has any other means to augment his

income except the shop in question, which is sought to be evicted, so as to run the textile business by the landlord in the premises in question, The

landlord is admittedly doing textile business in Pandanallur. Nothing has been brought on record to show that the landlord is incapable of running

the textile business in the premises in question Admittedly, the shop belongs to him Therefore there is nothing for this Court to think that the

landlord cannot establish a textile business in the demised premises.

On the other hand, the tenant is possessed of several other shops and buildings, which are evidenced by sales deeds marked as additional

documents. I have already referred to those details in paragraphs supra. The property purchased on 21-5-1995 is a shop in the same Victoria

Bazaar two shops away from the demised shop. If the tenant had proved that he will not be able to get are accommodation anywhere in the town

concerned here he could set up a business, this might have been a weighty consideration. But the evidence in this case discloses the bona fide

nature of the requirement of the landlord. There is no satisfactory evidence to prove that there is no possibility of the tenant getting a shop. The

tenant having taken the demised shop on lease cannot be allowed to dilate the landlord that he cannot be evicted unless be gets a similar

accommodation in the very same locality.

It is argued that if the tenant is ejected, he may not get a shop as big as the shop in dispute in the very locality where the disputed shop is

situated This argument falls to the ground in view of the additional documents now filed, which show the several other shops have been purchased

in the names of the sons of the tenant, who are all living as members of the joint family. As rightly pointed out by Mr. P.L. Narayanan, learned

counsel for the landlord, the landlord''s necessity is imperative and his requirement is undoubtedly reasonable because the income which he gets

from the business which he is carrying on at Pandanallur is miserable very low and the rent which he is receiving from the tenant is not sufficient to

maintain him.

Thus, on a careful comparison and assessment of the relative advantages and disadvantages of the landlord and the tenant, it seems to me that

the scale is tilted in favour of the landlord and the inconvenience, loss and trouble resulting from denial of a decree for eviction in favour of the

landlord far outweighs the prejudice or the inconvenience which will be caused to the tenant. The Appellate Authority has weighed the evidence in

its proper perspective. The object of the Rent Control Act is to strike a just balance between the genuine need of the landlord on the one hand and

the inconvenience of the tenant on the other.

For the foregoing reasons, the reasons given by the Appellate Authority in ordering eviction on the ground of requirement of the landlord for

own occupation and also on the ground of willful default in payment of rent are confirmed. However, the reasoning of the Appellate Authority on

the ground of causing damage to the building is set aside. In the result, the Civil Revision Petition fails and is dismissed. However, there will be no

order as to costs. C.M.P. No. 3945 of 1996 is ordered as indicated above.