Sankaranarayanan vs Palaniswami

The landlord is the petitioner in this Civil Revision Petition. He filed R.C.O.P. No. 9 of 1987 on the file of the Rent Controller/District Munsiff,

Tenkasi, for evicting the respondent/tenant from the property bearing Door No. 354 situated in Ward No. 15, Kadayanallur Municipality,

originally belonged to one S. Esakki Cheltiar. The respondent took the property on lease from the said S. Esakki Chettiar for running a business on

a monthly rent of Rs. 45/-. The petitioner obtained an Othi of the property on 10-12-1986 from the said S. Esakki Chettiar under Ex. A-1. The

petitioner has been running a business in Door No. 354 in Ward No. 15 in a building belonging to one Kulathurammal, who wanted the petitioner

to surrender the leasehold property. She had also issued notice demanding possession of the same from him. The petitioner as the Othidar is

entitled to maintain the petition for eviction since he requires the building to run his business.

The respondent/tenant resisted the petition for eviction. According to him, the petition is a vexatious one and that the owner of the premises viz.,

S. Esakki Chettiar, who wanted to evict the respondent from the petition premises, tried his best and failed and thereupon, the respondent filed a

suit in O.S. No. 402 of 1981 on the file of the District Munsif, Tenkasi, against the said S. Esakki Chettiar for permanent injunction. The suit was

decreed in favour of the respondent. Thereupon, S. Esakki Chettiar filed H.R. C.O.P. No. 19 of 1982 and the same was dismissed. The appeal in

R.C.A. No. 25 of 1983 preferred against the order of the Rent Controller was also dismissed. Therefore, with a mala fide intention, S. Esakki

Chettiar has Othied his property in favour of the petitioner with a view to evict the petitioner through him. The Othi document is a sham and

nominal document and the same is not binding on the respondent. There is no bona fide intention on the part of the petitioner to evict the

respondent.

The Seamed Rent Controller ordered eviction. The aggrieved tenant preferred R.C.A. No. 33 of 1987 before the Appellate

Authority/Subordinate Judge, Tenkasi, reiterating the same contentions raised before the Rent Controller. The learned Appellate Authority,

however, reversed the finding of the Rent Controller and dismissed the eviction petition on the ground that there is no bona fide on the part of the

landlord to evict the respondent. The Appellate Authority also held that the original owner S. Esakki Chettiar had failed in his attempt to evict the

respondent from the petition premises as seen from Exs. B-1 to B-6 and, therefore, he has set up the present petitioner to file the eviction petition

as an Othidar. The unsuccessful landlord has come to this Court by filing the above revision.

Mr. P. Peppin Fernando, learned counsel for the petitioner, contended that the Appellate Authority is not competent to hold that the mortgage

deed is not valid in law and that the Appellate Authority has also failed to note that all the earlier decisions between the respondent/tenant and the

previous landlord S. Esakki Chettiar are not binding on the present petitioner. This apart, the Appellate Authority has also failed to note that the

petitioner requires the premises in question for his own use and occupation and, therefore, the requirement of the petitioner is bona fide.

Per contra, Mr. G. Nagarajan, learned counsel for the respondent contended that the petitioner, who is ausufructuary mortgagee is not entitled

to evict the tenant on the ground of bona fide requirement of the premises for his personal occupation and that the Othi document under Ex. A-1 is

a sham and nominal document. This apart, the bona fide nature of the requirement has not been established in this case and that the present attempt

on the part of the petitioner is a colourable transaction brought out by the owner S. Esakki Chettiar when he failed to evict the respondent herein

on an earlier occasion.

In answer to the contention of Mr. G. Nagarajan, learned counsel for the respondent, that the usufructuary mortgagee is not entitled to maintain

the petition for eviction, Mr. P. Peppin Fernando, learned counsel for the petitioner invited my attention to the rulings of this Court reported in T.

Ezhumalai Vs. Padmavathi Ammal, wherein G. Ramanujam, J. has held that a usufructuary mortgagee is a landlord within the meaning of Section

2(6) of Madras Act XVIII of 1960 and that he is entitled to evict the tenant of the premises on the ground of his bona fide requirement of the

premises for his personal occupation. I respectfully agree with the view taken by G. Ramanujam, J., in the said case and hold that the present

petition by the Othidar is maintainable.

On the ground of bona fide requirement also I am inclined to agree with the learned Rent Controller. It has been found by him that the petitioner

is carrying on business in a rented premises. The contention on behalf of the respondent that the petitioner, as usufructuary mortgagee, cannot

require the building for his business, cannot also be accepted in view of the decision of this Court reported in K.R. Saraswathi Vs. V. Vadivelu

Chettiar, , wherein T. Ramaprasada Rao, J., as he then was, has construed the scope of Section 10(3)(a)(iii) of the Madras Buildings (Lease and

Rent Control) Act, XVIII of 1960 and held that the requirement by the landlord of the premises for the purpose of his business carried on by him

will be a ground for eviction u/s 10(3)(a)(iii) of Act XVIII of 1960. I am also not inclined to treat the usufructuary mortgage deed as a colourable

transaction only on the ground that the mortgagor had earlier attempted to evict the tenant and failed. In this case, the evidence on record clearly

establishes that the petitioner took the usufructuary mortgage in the regular course of business and, therefore, it cannot be said that the petition for

eviction is not bona fide. It is settled by law that a usufructuary mortgagee will also be a landlord within ihe meaning of Section 2(6) of the Madras

Act XVIII of 1960, having been clearly held by the decision of this Court in Baiuswami Servai v. Raju Servai, (1966) 2 MLJ 4 wherein

Venkataraman, J., has held that a usufructuary mortgagee was also entitled to evict a tenant of the premises on the ground of his bona fide

requirement of the premises for his personal occupation. It is also not in dispute that the petitioner is occupying a rented premises and that his

landlady has already issued a notice calling upon the petitioner to vacate the premises.

Mr. G. Nagarajan next contended that there is no bona fide on the part of the petitioner in filing this petition u/s 10(3)(a)(iii) of the Tamil Nadu

Buildings (Lease and Rent Control) Act. I am unable to agree with this contention as well. Section 10(3)(a)(iii) deals with the conditions for

obtaining possession of a non-residential building.

The conditions required are:

(a) The building should be non-residential in character.

(b) The landlord should be carrying on business on the date of his applying for eviction.

(c) He should not be occupying any other non-residential building belonging to him for the purpose of his business; and

(d) The landlord''s claim is bona fide for his business needs and not based on oblique motives like trying to obtain more rent or to harass the tenant.

In my view, the petitioner satisfies all the ingredients above referred to. The respondent/tenant has not shown to the satisfaction of this court that

the petitioner has any other non-residential building in the place in question for carrying on his business and that the requirement of the petition

premises by him is not bona fide. Admittedly, the respondent has been paying rent to the landlord. This apart, the present petitioner was not a

party to any of the legal proceedings initiated by S. Esakki Chettiar, Therefore, as rightly pointed out by Mr. P. Peppin Fernando, the decision

rendered by the Courts in the earlier proceedings is not binding on the present petitioner. In my opinion, it is beyond the jurisdiction of the

Appellate Authority to hold that the mortgage deed is not valid in law in rent control proceedings. Therefore, I have no hesitation to set aside the

judgment of the Appellate Authority and restore the order passed by the Rent Controller ordering eviction.

The above discussion of mine obliges me to interfere with the judgment of the Appellate Authority in this revision. Accordingly, the Civil

Revision Petition is allowed, the judgment of the Appellate Authority is set aside and the order of the Rent Controller is restored. No costs.

After the order was pronounced, learned counsel for the respondent/tenant wanted some time for the respondent to vacate premises in question.

Learned counsel for the petitioner/landlord has no objection for granting some reasonable time. Considering the request made, I grant three months

from today to the respondent/tenant to vacate and hand over vacant possession of the premises to the petitioner/landlord subject to his payment of

rent as before.

Order accordingly.