Rajkumar Chadda and another vs V.P. Abdulrahiman and Others

U. L. Bhat, J.—Petitioners in the two original petitions arc brothers. The common first respondent is their landlord. The landlord has a building bearing door No. 9/77. The eastern three rooms are let out to one of the brothers and three other rooms with the Varanda are let out to the other brother. The two brothers have rubber business as partners in the premises. Another portion of the same building consisting of four rooms and lean to are in the possession of the landlord, who is running a partnership business therein, the business being in fertilizers, pesticides, oil cakes, coir mats etc. The firm has agency from several reputed business concerns. The landlord filed eviction petition against the two tenants claiming that he requires the tenanted premises for his own occupation for the purpose of business (Section 11 (3) of Act 2 of 1965) or alternatively he requires additional accommodation for his personal use (section 11 (8) of the Act.). The claim was opposed by the tenants on various grounds. Learned Rent Controller upheld the claim for eviction u/s 11 (8) of the Act while rejecting the claim u/s 11(3) of the Act. The tenants filed appeals before the appellate authority, who set aside the eviction order passed u/s 11 (8) of the Act. The appellate orders were reversed and the orders of the Rent Controller restored by the District Judge in revision petitions filed by the landlord. The orders of the revisional court are now challenged under article 227 of the Constitution of India. Ext. C1 is the commissioner''s report. He describes the building in parts of which the two tenants and the partnership firm of the landlord are conducting business. Three rooms are let out to each of the tenants and in those rooms they are conducting business in rubber as partners. The remaining four rooms and lean to are used by the landlord for conducting his partnership business in fertilizers, pesticides, oil cakes etc. The question is whether the order of the learned District Judge upholding the decision of the Rent Controller that claim for eviction u/s 11 (8) has been made out and reversing the contrary decision of the appellate authority is liable to be interfered with under article 227 of the Constitution of India.

u/s 11(8) of the Act a landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use. There is no dispute that the landlord and the two tenants are occupying parts of the same building. In a part of the building landlord is conducting partnership business in the commodities referred to above. His definite case is that part of the building where he runs the business is inadequate for the purpose of business and he requires additional accommodation, for the purpose of that business, which according to him falls in the category of the expression ''personal use''. The learned Rent Controller upheld his claim and the same was rebutted by the learned appellate authority even on facts. The revisional authority concluded that the finding of the appellate authority is vitiated by ignoring the relevant evidence and on the basis of serious misapprehension of facts and evidence.

Landlord examined as PW--1 deposed to his case. He spoke to it in cross-examination also. Of course his evidence was denied by RW-1, one of the tenants examined on behalf of the both of them. The commissioner in Ext. C1 report has given a graphic description of the premises and the article kept therein. According to him, the portion in the occupation of the landlord consists of four rooms and lean to. One room is a small one and part of that is used as office. In the other three rooms he found bags of fertilizers stored upto roof height leaving no space at all. He found 110 bags of oil cakes kept outside the room. In the small room wooden cases of pesticides stored and lean to was full of coir mats. He found insufficient space for the office. In the small open compound also he found boxes of oil cakes were stored. Going by Ext. C1 report it is clear that the space available for the landlord is inadequate for his business and he requires additional accommodation. Leaned Rent Controller relied on Ext. C1 report to the extent it is corroborated by other evidence and circumstance. However the learned appellate authority declined to place reliance on Ext. C1 manly on the ground that the landlord might have managed to keep articles in the premises for the benefit of the commissioner and because the existence of stock was not proved by stock registers which were suppressed by the landlord. It is no doubt true that in the objections to the commissioner''s report there is such complaint of stage managing. But at the stage of evidence RW-1 definitely staled that the bags contained only sand and not fertilizers or like. He had no such case in his objection.

If he really had the knowledge that the bags contained sand, he would have pointed out the same to the commissioner. He did not do so. Tenants filed application to set aside the commissioner''s report. In that connection, landlord was asked to produce his records. He produced Exts. A5 to A8 stock registers for the relevant period and Exts. A9 and A10 account books. The learned appellate authority not only ignored these records but was carried away by the impression that the records were suppressed. The revisional authority has carefully considered these records and come to the conclusion that the stock registers and accounts corroborate the state of affairs found by the commissioner regarding existence of stocks. In these circumstances she finding of the appellate authority that the existence of stocks was not adequately proved is only vitiated as rightly found by the revisional authority. The reasons which weighed with the appellate authority to reject Ext. C1 report are also wholly untenable. The finding of the learned Rent Controller affirmed by the revisional authority that the landlord requires additional accommodation for the partnership business cannot be interfered with.

Learned counsel for the petitioners vehemently contended that the contemplated use of additional accommodation for the business of the firm cannot be personal use of the landlord and therefore section 11 (8) will not be attracted. Learned counsel invited my attention to the provisions in section 11 (3) for the purpose of comparison. Section 11(3) enables the landlord to apply for an order of eviction against the tenant if the landlord needs the building for his own occupation or for the occupation by any member of his family dependent on him. Recording to the learned counsel, the expressions ''personal use'' used are absent in section 11 (3) while they are present in section 11(8) and this is a conscious difference. Leaned counsel also referred to the decisions of this court in Gavinda Pal v. Sarvothama Rao (1981 KLT 330) and Jamecla v. Moosa (1981 KLT 791). Both those decisions have construed the provisions of section 11 (3) of the Act. In Gavinda Pat''s case (1981 KLT 330) the landlord was carrying on partnership business in the rented building, which was being acquired by the State and therefore wanted the tenant to vacate the building in the latter''s possession. It was contended that the purpose for which the landlord wanted the building was not his own occupation but the occupation of the firm of which he was a partner. This court held that the expression ''his own occupation'' does not connote the idea of exclusive occupation and even when a person carries, on business as a partner of a firm he occupies the business premises along with his partners though this may not be the case if he is only a dormant or sleeping partner. Where a partner is actively associated with and is concerned in the conduct of the business he occupies the business premises for the purpose of the business of the firm and the occupation is of all those who carry on such business. This court held that the expression ''his own occupation'' must receive a broad interpretation. The same view was taken in Jameela''s case (1981 KLT 791) also. The court stressed that it is wrong to assume that occupation of a firm will always be different from the occupation of the landlord as partner thereof.

I fail to see how these decisions help the petitioners. In the case of a partner who is actively concerned with running partnership business, he must be deemed to be in occupation of the business premises and when accommodation is required for running a partnership business it is treated as being required for his own occupation, Sec. 11 (8) does not contain the words ''his own occupation''. What section 11 (8) contemplates is requirement of additional accommodation for his personal use It is significant to note that the expression ''own'' is absent in section 11 (8). Additional accommodation must be required for his personal use and not for his exclusive personal use. When a partnership is running a business, at least so far as the active partners are concerned (it is unnecessary to consider the case of dormant partners since there is no case that the landlord herein is only a dormant partner) they are personally using the premises. The landlord in this case as an active partner of the business is personally using the premises and when additional accommodation is required for the business of the partnership the requirement is for his personal use. It may be that it is for the personal use of other active partners also. But as long as the provision does not insist on the requirement for exclusive personal use, the court will not be justified in putting such a narrow construction to the provision. Even in the absence of specific reference to the members of the landlord''s family this court in Subramonia Iyer v. S.H. Krishnaswamy (1981 (2) I. L.R. Ker.442) has interpreted the expression ''personal use'' as including use by members of the landlord''s family, who want to live with him, I am not able to agree that a partner who is actively running a partnership business in the premises is not putting the promises to personal use.

It is next contended that the learned District Judge was in error in reversing the finding of the appellate authority that the landlord has other premises sufficient for the purpose of his business and therefore does not honestly require additional accommodation in this building. I have carefully gone through the papers made available. I am inclined to agree with the learned District Judge when he states that the appellate authority ignored relevant evidence and entered finding on conjectures. Ext.B1 is the extract of the property tax register. It describes the landlord as the owner of building 9/155 and of no other building. It describes the landlord as one of the owners of building 9/62. The learned District Judge has pointed out that Ext. B1 does not indicate that the landlord is in possession of those premises. Assuming that he is in possession of building No. 9/155 it has to be noticed that it is situated two furlongs away from the disputed premises. According to PW-1 that premises is in the possession of one Balakrishnan. There is no documentary evidence either way in this regard. It is difficult to hold that a premises two furlongs away from the premises where landlord is conducting business in fertilizers, pesticides etc. will be convenient or sufficient as additional accommodation. The contra view taken by the learned appellate authority is perverse and unsustainable as rightly indicated by the learned District Judge.

It is next contended that the proviso to section 11 (10) of the Act states that eviction application is to be rejected if the Rent Control Court is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The contention is that the business conducted by the tenants is a substantial one running to crores and if they are deprived of the disputes premises they will suffer irreparable in injury and hardship caused to them would outweigh the advantages to be deprived by the landlord. The learned appellate authority indicated that Exts. X1 and X2 shows that the tenants had stocked goods in the central warehouse and drew an inference that hardship will be caused to the tenants. There is no dispute that tenants are in possession of a building in Kuriyal lane, which is also used for their rubber business. They are carrying on business in rubber in the disputed premises now. Learned Rent Controller took the view that the building in Kuriyal lane would be adequate for the purpose of the business and therefore no serious hardship will be caused to the tenants if they are evicted from the disputed premises. This finding was reversed by the learned appellate authority solely on the basis that the tenants on the occasion covered by Exts. X1 and X2 stocked goods in the central were-house. Learned District Judge has pointed out that the appellate authority has not properly considered the evidence at all. The commissioner inspected the building in Kuriyal lane. Ext.C1 report would show that partnership firm of the tenants is using that building as office and godown. The building has three rooms measuring 40''6"x34''4", 34''4"x8''6" and 34''4"x20'' with the height of 14''4" and 11''. In the big room commissioner found few rubber sheets and weighing machine. In one room he saw 21 bags of raw rubber scraps and in another 44 bundles of raw rubber sheets. The commissioner inspected the disputed premises also and noticed vacant space, therein, indicating that the entire disputed premises is hot fully utilised by the tenants. These circumstances ware fully ignored by the appellate authority, Learned appellate authority also failed to notice that Exts.X1 and X2 indicats that on the occasions covered therein tenant shad stored dried ginger in the warehouse. The tenants have no case that they are doing business in dried ginger in the disputed premises. Therefore, use of the central warehouse for storing dried ginger could not have been for want of space in the disputed promises or in the building in Kuriyal lane Exts.X1 and X2 are wholly irrelevant In these circumstances, finding of the revisional authority, that the view taken by the appellate authority in regard to the proviso u/s H (10) of the Act is vitiated, cannot be interfered with. Learned counsel for the petitioners finally pleaded for some time to vacate the premises. The eviction petitions were filed about ten years ago in 1977, I do not think, the request for more time comes with any grace from the petitioners. However, since they are conducting business in the premises I take a lenient view and grant them two months''s time to vacate the Premises. The original petitions are dismissed with this observation.