R. Sakunthala and Senthil Coffee Works vs K. Chockalingam

S. Tamilvanan, J.—This Civil Revision has been preferred, challenging the judgment and Decree, dated 09.02.2011 made in R.C.A. No.

404 of 2010 on the file of the Rent Control Appellate Authority/VIII Judge, Court of Small Causes, Chennai, reversing the Order and Decretal

Order, dated 30.04.2010 made in R.C.O.P. No. 1974 of 2009 on the file of the Rent Controller/XI Judge, Court of Small Causes, Chennai.

The first Petitioner is the proprietrix of the second Petitioner, Senthil Coffee Works, a proprietary concern, tenant under the

Respondent/landlord. It is seen that R.C.O.P. No. 1974 of 2009 was filed by the Respondent herein, as landlord to evict the Petitioners/tenants

u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (herein after referred to as the Act).

Learned Rent Controller, by order and decretal order, dated 30.04.2010 dismissed the Rent Control Original Petition. Aggrieved by which, the

Respondent/landlord preferred the Rent Control Appeal in R.C.A. No. 404 of 2010 before the learned Rent Control Appellate Authority/VIII

Judge, Court of Small Causes, Chennai. Learned Rent Control Appellate Authority, considering the evidence available on record and also the

arguments advanced by both the learned Counsel, allowed the appeal and reversed the order passed by the learned Rent Controller and ordered

eviction. As per the impugned judgment and Decree, the Petitioner/tenant was directed to vacate and hand over the possession of the R.C.O.P

premises to the Respondent/landlord within two months from the date of the impugned judgment and Decree. Aggrieved by which, the revision has

been preferred.

At the request of both the learned Counsel, the original records relating to the Rent Control Appeal with material papers of the Rent Control

Original Petition were called for by this Court for the disposal of the Revision preferred u/s 25 of the Act.

It is an admitted fact that the R.C.O.P relates to a non-residential premises and as per the impugned judgment and Decree, learned Rent

Control Appellate Authority, ordered eviction on the ground of Landlord''s own use and occupation u/s 10(3)(a)(i) of the Act.

Learned Counsel for the revision Petitioners/tenants submitted that the Respondent/landlord has not established his bonafide requirement for

seeking eviction u/s 10(3)(a)(i) of the Act. According to him, the erstwhile landlady of the Petitioners/tenants, Mrs. R. Sakubai had filed R.C.O.P.

No. 973 of 1988 for fixation of fair rent and she had filed a suit in O.S. No. 4071 of 1997, seeking injunction against the Petitioners and the suit

was dismissed. It is further contended on the side of the revision Petitioner/tenant that Appellate Authority has given a finding in the impugned

judgment that the Petitioner/tenant is owning a non-residential building, bearing Door No. 60 B, R.K. Shanmugham Salai, Chennai, which is a

residential building, constituting of four flats and the Petitioners is in occupation of one of the flats, hence, the findings of the Appellate Authority

that the Petitioners/tenants is not having relative hardship is erroneous and contrary to evidence.

Learned Counsel for the Petitioners/tenants further submitted that the Respondent/landlord has not whispered anything about setting up a dental

clinic for his daughter in his earlier communication to the Petitioners/tenants. Similarly, in the letter of attornment of tenancy, dated 28.12.2008

marked as Ex.P.2, the intention of the Respondent/landlord in purchasing the property is silent regarding setting up a dental clinic for his daughter.

The R.C.O.P premises is measuring only 135 sq.feet of constructed portion and the present clinic situated outside the residence of the Respondent

might be in a larger area than the petition premises and hence, there could be no bonafide requirement in favour of the Respondent/landlord.

Without evidence available on record, the Petitioners/tenants cannot raise a plea in the revision.

Per contra, learned Counsel appearing for the Respondent/landlord submitted that the R.C.O.P filed by Mrs.R. Sakubai, previous landlady is

nothing to do with this revision petition. It is an admitted fact that the Rent Control Original Petition was filed by the Respondent herein on the

ground of landlord''s own use and occupation. He has stated that his daughter, Dr. C. Deepa is a Dentist and that she is running her clinic in a

cramped area, a small portion of his residential house, which is inadequate and it is located in an inner area of a street. It is not in dispute that the

Respondent/landlord had issued Ex.P.12, legal notice, dated 23.07.2009, on the ground of the landlord''s own use and occupation, expressing his

requirement for running his daughter''s Dental clinic, for which Ex.P.13, reply notice, dated 03.08.2009 was sent by the revision

Petitioners/tenants, whereby the Petitioner had refused the request of the Respondent/landlord.

It is seen that the Respondent/landlord, in support of his claim produced Ex.P.5, a copy of the Decree Certificate of his daughter to show that

she is a dental surgeon. Ex.P.6 is a copy of the conduct certificate and Ex.P.7 is the certificate of registration made in favour of the

Respondent''s/landlord''s daughter by the Tamil Nadu Dental Council. In this revision, it is not in dispute that the Respondent''s/landlord''s

daughter, Dr. C. Deepa is a dentist and also running her clinic in a portion of the residence of the Respondent/landlord.

Learned Counsel appearing for the Respondent/landlord drew the attention of this Court to the document, Ex.P.8, whereby it is seen that loan

was sanctioned by the Indian Overseas Bank in favour of Dr. C. Deepa, daughter of the Respondent/landlord, by a proceedings of the Bank,

dated 30.04.2009 for setting up dental clinic. Learned Counsel appearing for the Respondent also submitted that as per Ex.P.9, prescription

paper, the alleged residential address of the Petitioners is given at New No. 11, Sowrashtra Nagar, Choolaimedu and certain photographs,

marked as Ex.P.10 and argued that the photos were taken to show that the daughter of the Petitioner was treating patients in a cramped portion of

his residence.

Learned Counsel appearing for the revision Petitioners/tenants submitted that the area of the rent control premises is only 135 sq.ft of

constructed portion, that was sold under Ex.P.1 in favour of the Respondent/landlord, out of a total extent of one ground and 1413 sq.ft. of land

and the building that the revision Petitioner is in occupation of the petition premises for more than 26 years, while the vendor of the property, Mrs.

Sakubai owned the property. It is seen from the evidence that the Respondent herein has not disputed the said factum in his cross-examination.

The short question involved in this revision petition is whether the Respondent/landlord is entitled to seek eviction u/s 10(3)(a)(iii) of the Act,

on the ground of his own use and occupation, for the purpose of setting up a dental clinic in the premises.

In support of the contention of both the parties, following decisions were cited by both the learned Counsel:

Sahul Hameed v. Ganthimathi 2010 (1) CTC 520

Uday Shankar Upadhyay v. Naveen Maheswari 2009 (5) CTC 782

T.K.V.S.L. Mahadevan v. Lathif Moosa 2009 (8) MLJ 1137

B. Kishore, Proprietor, ""B Kishore Auto Spares"" Vs. D. Maragathavalli,

Thirunavukkarasu v. Vasantha Ammal 1997 2 LW 607

Venkiduswami Pillai, M.V and 10 Ors. v. S. Swaminatha Rao 1996 2 LW 752

In Thirunavukkarasu v. Vasantha Ammal, reported in 1997 2 LW 607, this Court (S.S. Subramani, J) has held that the landlady therein was

entitled to evict the tenant for the requirement of her son to set up a clinic after his completing in six months time, his medical course. In the

decision, this Court has held that the need had already arisen and that tenant could not plead and insist that the landlady should wait till her son

finishes the course and then only file a petition.

In V. Radhakrishnan v. S.N. Loganatha Mudaliar, reported in 1991 (1) MLJ SC 1, the Hon''ble Supreme Court has held that the landlord can

seek eviction of the tenant for his own benefit or the benefit of his family members, not withstanding the fact that the said landlord himself or herself

occupying a building of his own for carrying on business so long a such member of the family for whose benefit eviction is sought does not occupy

any other premises of his own in a City or Town. Therefore, it is clear that for seeking eviction of tenant u/s 10(3)(a)(iii) of the Act, either it may be

for the occupation of the landlord or any family member of the landlord, carrying on business, if bonafide requirement is established.

In Nathella Sampathu Chetty v. Sha vajingjee Bapulal, reported in 1967 (1) MLJ 289, a Division Bench of this Court has held thus:

Section 10(3)(a)(iii) of the Madras Buildings Lease and Rent Control Act, 1960, allows a landlord to apply to the controller for an order directing

a tenant to put him in possession of the building if the landlord is not occupying for purposes of business which he is carrying on a non residential

building which is how own. If the conditions of the provisions are satisfied, the Controller may make an order as prayed for by the landlord

provided he is further satisfied that the claim of the landlord should be bona fide is common not only to this provision but also to several other

provisions in the Act which provide for eviction of tenants...

In T.K.V.S.L. Mahadevan v. Lathif Moosa, reported in 2009 (8) MLJ 1137, this Court has held as follows:

The tenant cannot say that the Petitioner''s sons'' business could be carried on in the larger extent and the portion in his occupation is not

suitable for the film distribution business on the ground that it is surrounded by shops carrying on textile business. The petition mentioned premises

might be situated in an area where there are textile shops in the adjacent places, but that by itself is not sufficient for holding that it is not suitable for

film distribution business. After all, whether the Petitioner''s sons should carry on business is a matter of his choice and it is not for the Court and

the Respondent to indicate the preference.

In Sarla Ahuja Vs. United India Insurance Company Limited, , the Hon''ble Apex Court, while dealing with the bonafide requirement of the

landlord in paragraph 14 of the judgment has held thus:

The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the

tenanted premises must be bonafide. When a landlord asserts that he requires his building for his own occupation,. The Rent Controller shall not

proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a

prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is boafide. It is often said by Courts

that it is not for the tenant to dictate terms to the landlord as to who else he can adjust himself without getting possession of the tenants premises.

While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to who else the

landlord could have adjusted himself.

In B. Kishore, Proprietor, ""B Kishore Auto Spares"" Vs. D. Maragathavalli, , this Court held that even if the landlord makes bonafide

preparations to commence business that would be enough for seeking the remedy u/s 10(3)(a)(iii) of the Act and no necessity that landlord or

member of his family for whom premises sought should be actually carrying on business on the date of filing of the eviction petition, accordingly, it

was held that it is open to the landlady to choose building, which she requires for her son and the tenant cannot dictate or compel such business,

being run in a small or sufficient portion.

The Hon''ble Supreme Court in Uday Shankar Upadhyay v. Naveen Maheswari, reported in 2009 (5) CTC 782, has held that once it is not

disputed that the landlord is in bonafide need of the premises, it is not for the Courts to say that ""he"" should shift to the first floor or any higher

floor. It is well-known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can

reach there easily. Accordingly, the Court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to

decide.

This Court in Sahul Hameed v. Ganthimathi, reported in 2010 (1) CTC 520, held that the landlady initially required the premises to do

business in pharmaceuticals, filed petition subsequently for doing business in hardware would not affect bonafides, when landlady has explained

reason in the evidence.

In Venkiduswami Pillai, M.V. and 10 Ors. v. S. Swaminatha Rao, reported in 1996 2 LW 752, this Court (AR. Lakshmanan, J), has held that

the tenant cannot dictate terms to the landlord and has further decided as thus:

...It has been established that the landlord bonafide 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.

It is a well settled proposition of law that in so far as non-residential building is concerned, the Tamil Nadu Buildings (Lease and Rent Control)

Act, does not say that if the landlord owns more than one building, he would not be entitled to an order of eviction. It is for the landlord to choose

which building he would require for occupation for his son or daughter to carryon business.

In the instant case, the Respondent/landlord requires the R.C.O.P premises for the purpose of setting up dental clinic to his daughter, who is a

Dentist. It is not in dispute that the daughter of the Respondent, Dr. C. Deepa is running her clinic in a portion of her residential premises.

According to the learned Counsel for the Respondent/landlord, the residence is situated in a narrow street comparatively than the approach road

available to the R.C.O.P premises. It is seen that the Respondent/landlord filed Rent Control Original Petition u/s 10(3)(a)(iii) of the Act, seeking

eviction of the tenant, on the ground of landlord''s own use and occupation, for the purpose of setting up clinic to his daughter, a practicing Dentist.

The Petitioner/tenant has not disputed the factum that the Respondent''s daughter, Dr. C. Deepa is a Dentist and she is running her private clinic in

a portion of her residential premises. In such circumstances, the tenant cannot say that the R.C.O.P premises, measuring is 135 sq.ft, would not be

sufficient for the Respondent''s/landlord''s daughter to run her clinic. There is no evidence available on record to show that the demised premises is

not suitable to run any dental clinic.

As decided in various decisions by the Hon''ble Apex Court and this Court, a tenant cannot dictate terms to the landlord whether the premises

is suitable for running business for the landlord or any member of the landlord, as the same has to be decided by the landlord. Admittedly, the

Petitioner, as proprietrix is running her coffee works in the premises and admittedly, it is a non-residential premises. In such circumstances, it

cannot be said that the premises is not suitable for the landlord''s daughter to run her clinic. Similarly, the grounds raised by the Petitioners/tenant

that there was one earlier R.C.O.P filed by the erstwhile landlady, Mrs. Sakubai is no way relevant in deciding the present R.C.O.P and the

revision. Merely the Respondent/landlord has not stated his intention of setting up a clinic in the R.C.O.P premises, while communicating

attornment of tenancy, the bonafide requirement of the landlord cannot be legally disputed.

In the case of the landlord''s own use and occupation of the premises u/s 10(3)(a)(iii) of the Act, it is true that the Court has to consider the

relative hardship. In the instant case, the Respondent''s/landlord''s daughter is running a clinic only in a portion of her residence, that has been

established by supporting materials. The Petitioners have also not disputed that the clinic run by the daughter of the landlord is comparatively in a

narrow street and that too in a portion of her residence. Hence, the Petitioners could run her clinic in the R.C.O.P premises, as it is a non-

residential premises, where the Petitioner/tenant is running her business.

In the aforesaid circumstances, as contended by the learned Counsel appearing for the Respondent/landlord, it is clear that the relative

hardship faced by the Respondent/landlord herein is more comparatively than that of the Petitioner/tenant and that the Respondent/landlord has

established the bonafide requirement, as contemplated u/s 10(3)(a)(iii) of the Act, hence, I am of the view that there is no illegality or material

irregularity in the impugned order, so as to warrant any interference of this Court and accordingly, the Civil Revision Petition is liable to be

dismissed.

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. Time granted for the

Petitioners to vacate and hand over the possession of the premises is two months from the date of receipt of a copy of this order. No order as to

costs.