Selvaraj vs Amudhavalli

M. Karpagavinayagam, J.—Selvaraj, the petitioner herein, is the tenant of a non-residential building of which Amudhavalli, the respondent

herein, is the landlady. Aggrieved over the concurrent orders of eviction passed by the learned Rent Controller, Mannargudi, confirmed by the

Appellate Authority, Nagapattinam, the petitioner/tenant has filed this civil revision petition.

The landlady/the respondent herein filed a eviction petition in the court of the Rent Controller, Mannargudi mainly on two grounds, namely, (1)

wilful default in payment of rent; and (2) bona fide personal requirement of the landlady for shifting her business to the premises in question.

On a perusal of the evidence, the Rent Controller held that there is no wilful default in payment of rents. However, he allowed the petition

holding that the landlady had established her bona fide personal requirement. The Appellate Authority also agreed with the Rent Controller and

dismissed the appeal filed by the tenant. Thus, the orders of both the Rent Controller and the Appellate Authority are put in issue by the tenant in

this civil revision petition.

Mr. AR.L. Sundaresan, the learned Counsel appearing for the tenant/the petitioner herein, would contend as follows:

(1) Both the authorities below have misconceived the scope of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act in

holding that it is sufficient to make the claim of the landlady a bona fide one, if the two conditions, namely,. (1) the landlady is carrying on a

business, and (2) the business carried on by the landlady in the premises is not her own, are satisfied. Merely, because these two requirements are

fulfilled, the authorities below cannot automatically come to the conclusion that the claim of the landlady for personal occupation is bona fide,

without any further proof of the genuineness of the claim. The mere desire to occupy the premises for carrying on the business is not sufficient to

warrant an order of eviction.

(2) P. W. 1, the husband of the landlady would admit in his evidence that he was owning two premises, one in door No. 105 and another in door

No. 154 in Peria Kadai Veedhi. However, in door No. 105 he was carrying on business by himself and in door No. 154, he was carrying on chit

business through his son. The business carried on by the respondent herein through her husband was only pawn broker business which could have

been very well shifted to either to door No. 105 or to door No. 154, especially when it is P.W.1 who is incharge of the business.

(3) The ground on which the landlady sought for eviction is that where she has been paying monthly rent of Rs. 245 for the rented premises for

running the pawn broker shop, the landlord, wakf Board, sent a notice to her demanding enhanced monthly rent of Rs. 490 and so, she was not

interested to pay such a fabulous rent to her landlord. Therefore, she had a desire to shift her business to the nonresidential building in question, her

own building. Mere notice issued by the landlord, viz., Wakf Board, to the respondent demanding for the enhanced rent could not be termed to be

threat of eviction. The respondent herein, instead of approaching the authority by filing a petition to fix fair rent for the said rented premises, had

simply filed the petition for eviction against the petitioner herein, even though there is no urgent need.

(4) The mere desire would not be considered to be a need. The application for eviction was filed only after the refusal of the tenant, the petitioner

herein, to give the enhanced rent of Rs. 500 as demanded by the landlady, the respondent herein. Therefore, the claim for requirement for personal

use is not a real and just claim.

In reply to the above submissions, Mr. Vijayaraghavan, the learned Counsel appearing for the respondent/landlady, in justification of the

impugned orders, would contend that the aspect of bona fide has been dealt with in detail by both the forums below and it has been concluded that

the landlady, the respondent herein, is in urgent need of the premises in question for the requirement of her personal use and for shifting her

business from the rented premises to her own non-residential premises and as such, the finding of fact rendered by both the forums below cannot

be lightly interfered with; in the absence of a grave illegality, in this revision.

The counsel on either side would cite several authorities in support of their respective pleas.

In the context of the above rival contentions, it is appropriate to go into the scope and interpretation of Section 10(3)(a)(iii) of the Tamil Nadu

Buildings (Lease and Rent Control) Act (hereinafter referred to as ""the Act"") The said section reads thus:

A landlord may, subject to the provisions of Clause (d) apply to the controller for an order directing the tenant to put the landlord in possession of

the building--

(i)...

(ii) ...

(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purpose of business which he or

any member of his family is carrying on, a non-residential building, in the city, town or village concerned which is his own.

On a plain reading of the above section, it is clear that a landlady seeking eviction of the tenant would be disentitled for claiming possession a

non-residential building where she requires those premises for her own use, if she is occupying a non-residential building of her own. Similarly, the

landlady would also be disentitled for claiming possession of non-residential premises for the benefit of a member of her family, if that member of

the family was in occupation of a non-residential building of his own. It is also clear that the husband of the landlady or the son of the landlady is

occupying a non-residential premises of his own cannot prevent the landlady or cannot operate as a bar to the landlady seeking eviction for her

benefit who does not occupy any other premises of her own.

It is settled law that the requirements to enable the landlady to put in possession of her nonresidential building from the occupation of a tenant

are as follows:

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

(2) The landlady should be carrying on business on the date of her application for eviction of the tenant.

(3) The landlady should not be occupying any other non-residential building belonging to her in respect of the business.

(4) The landlady''s claim is bona fide for her business needs and is not founded on indirect or oblique motive to evict the tenant.

The mere proof that the premises in question is a non-residential building and that the landlady is not occupying any other residential building of

her own for the purpose of the business which she is carrying on would not be enough for invoking Section 10(3)(a)(iii) of the Act. But, she must

show in view of Clause (e) of Section 10(3) that her claim is bona fide. In other words, any decision on the question whether the landlady deserves

to be put in possession of the premises in occupation of a tenant should naturally depend upon the bona fides of the landlady''s requirement or

need. The need of the landlady should be genuine.

u/s 10(3)(c) of the Act, the Controller shall, if he satisfied with the claim of the landlady is bona fide, make an order directing the tenant to put

the landlady in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make

an order rejecting the application.

To put it differently, unless the landlady deserves to get possession u/s 10(3)(e) of the Act by showing the urgent need and bona fides, the

eviction u/s 10(3(a) cannot be ordered. Unless the application filed by the landlady under the said section is found to be of any oblique purpose,

the controller cannot reject that application. Even if such application is for oblique purpose, one has to find out whether the requirement of the

landlady is bona fide.

While considering the question of bonafide, what is necessary to bear in mind is that mere desire on the part of the landlady is not enough. The

desire must be decided objectively and not subjectively. The burden also lies upon the landlady to establish that she genuinely requires the premises

for the purpose of continuing her own business.

The principles stated above, which are not in dispute, have been laid down in the following decisions:

(1) Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, . (2) S.J. Ebenezer Vs. Velayudhan

and Others, . (3) A. Sankaran v. S.K. Balasundaram (1994) 2 L.W. 152. (4) Maqboolunnisa Vs. Mohd. Saleha Quaraishi, . (5) Jagannathan v.

Amrut Gowri (1994) 1 L.W. 559 . (6) Gajendra Sha and Another Vs. M. Govindarajan, . (7) P. Embaru Vs. The Chairman, Madras Port Trust, ;

P. Embaru Vs. The Chairman, Madras Port Trust, .

The principles of the above decisions would clearly reveal that the landlady seeking eviction of tenant from a non-residential building u/s 10(3)

(a)(iii) of the Act, in order to succeed in her petition, should establish that she genuinely requires the premises, in addition to prove the other

ingredients referred to therein.

In this context, it shall be noticed that the Apex Court in Ram Dass Vs. Ishwar Chander and Others, , would hold that the question whether the

requirement of the landlords is bona fide or not is essentially one of fact, notwithstanding the circumstances that a finding of fact in that behalf is a

secondary and inferential fact drawn from primary facts are not necessarily questions of law. They can be, and quite often are, pure questions of

fact. The question as to bona fide requirement is one such.

In the light of the above rulings, the learned Counsel for the respondent, would bring to my notice, the decisions in M. Rengaiyan v. A.M.

Noorullah (1996) 2 L.W. 107 and Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , in which the Supreme Court of India

has laid down the principles in the following words with reference to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of

1960)--

Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with finding of fact merely

because it does not agree with the finding of the subordinate authority. The power conferred on the High Court u/s 25 of the Tamil Nadu Buildings

(Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court u/s 15 of the Code of Civil Procedure, but in the

words of Untwallia, J. in Dattonpant Gopalvarao Devakate Vs. Vithalrao Maruthirao Janagaval, , it is not wide enough to make the High Court a

second court of first appeal.

The learned Counsel for the respondent would also cite the authority in Boston and Others Vs. S.A. Akbar and Others, . On the basis of the

settled position of law, it is clear that the question whether the building is required bona fidely by the landlords for their own occupation, is a

question of fact. If findings are rendered by the Rent Controller and confirmed by the Appellate Authority, after evaluating the evidence, while

exercising powers u/s 25 of the Act, this Court is not entitled to reverse those findings of fact.

However, it shall be pointed out that it cannot be put as a total restriction on the power of this Court to go into the reasonings of the authorities

below and to the respective merits of the rival contentions, when there is a finding given by the Rent Controller and the Appellate Authority which

is held to be perverse on the basis of the findings of this Court.

In the light of the above principles, I shall now go into the merits of the contentions made on either side.

The premises in question was originally owned by the tenant/petitioner herein. This was purchased by the landlady on 4.4.1985. On the

request of the petitioner, the landlady let out the premises on the monthly rent of Rs. 275. From May, 1988, the rent as enhanced to Rs. 335.

Though previously the rental amount had been paid regularly, from the month of April, 1992, the payment of rent was stopped. The landlady is

doing power broker business in door No. 119, Big Bazar Street, Mannargudi which belongs to Alwakful Iswmailee Trust, Koothanallur on a

monthly rent of Rs. 245. But the owner of the said building issued a notice to the respondent herein demanding enhanced rent of Rs. 490. Since the

respondent/landlady was not at all willing to continue her business on such a fabulous amount of rent in that building and she was not having any

other non-residential building of her own for the purpose of doing her own business, she sent a notice to the tenant, the petitioner herein, to hand

over the possession of the premises to the landlady for shifting her business. Since there was not response, the landlady filed the eviction petition.

This plea of the landlady has been contested by the petitioner stating that the requirement was not bona fide, especially when the landlady''s

husband is owning two other non-residential buildings and that there was no wilful default in payment of rent.

The Rent Controller, on considering the evidence of P. W. 1, the husband of the landlady and R. W. 1 the tenant, though rejected the ground

of wilful default, accepted the contention of the landlady that she is entitled to the possession on the ground of personal occupation for continuing

her pawn broker business. The Appellate Authority also confirmed the finding of fact, as the said requirement is found to be a bona fide one.

There is no dispute in the fact that the respondent/landlady does not own any other nonresidential building in that area. It is also not in dispute

that the land-lady is doing pawn broker business in the rental premises. But, as correctly pointed out by the learned Counsel for the petitioner,

these things would not give rise to automatic cause of action to approach the Rent Controller for eviction u/s 10(3)(a)(iii) of the Act, unless there

are further materials to show that her requirement is real, just and out of need.

In this context, as pointed out by the Refit Controller as well as the Appellate Authority, Ex.P-5, the demand notice for enhanced rent issued

by the Wakf Board to the landlady, the respondent herein, who is doing pawn broker business in the said rented premises, enhancing the rent from

Rs. 245 to Rs. 490. assumes great importance.

The reading of Ex.P-5 would make it clear that the notice was issued on 6.11.1992 by the Inspector of Wakf Board, Pattukottai, in pursuance

of the Government Order, directing the respondent to pay the enhanced rent of Rs. 490 to be paid from July, 1992, After receipt of the said

notice, the landlady sent a lawyer notice on 11.12.1992 to the petitioner/tenant to hand over the possession to her, as she was not willing to

continue her business on such huge amount of rent in that building and that the said requirement on the part of the respondent herein was a bona

fide one Admittedly, though this notice was received by the tenant/the petitioner herein, there was no reply by him.

It is true that the landlady''s husband is owning two other properties bearing door Nos.105 and 154 in Peria Kadai Veedhi. As a matter of

fact, P.W.1, the husband in the course of cross-examination would admit that those properties are owned by him, but different business are being

carried on in those premises.

Merely because the husband of the landlady is owning some other prermises in which some other businesses are carried on, the landlady in the

eviction petition cannot be compelled to shift her business from the present rented premises to the premises of her husband in which some other

business are being carried on.

It is also seen from the evidence of P.W.1 that in door No. 105, he was having a jewellery business and in door No. 154, he was doing a chit

business through his son. It is also pointed out that P.W. 1 would admit that he only was doing the business in all the three places.

In fact, P.W. 1 did not conceal anything. As a matter of fact, the details about the refusal of rent on the reason that the premises was required

for personal occupation have been clearly given in the notice sent by the landlady to the tenant and also in the deposition given by P.W.1, the

husband of the landlady.

It is also pointed out by the learned Counsel for the petitioner that P.W.1 would state in the chief-examination that his wife has a desire to shift

the business in the rental premises to the premises in question. According to the counsel, this is not sufficient.

In my view, this submission, does not appear to be sound because the reading of the entire portion of the deposition with reference to the said

aspect would make it clear that the eviction petition was filed by the landlady out of urgent need. The relevant portion of the evidence is as follows:

Therefore, P.W. 1 has not only referred about the desire, but also the requirement as well as the need for personal occupation. In the light of

these materials, I do not feel that the courts below have committed any illegality in arriving at the conclusion that the requirement of the building by

the landlady is bona fide.

No doubt, it is true that there is only a notice for enhancement of rent and there is no threat of eviction. But, it is held by this Court in Ambrose

Vs. Abdul Rahim, by referring the decisions in Mrs. Mohini Suraj Bhan Vs. Vinod Kumar Mital, and Sitaramayya v. Rajasekhara Reddi (1951) 1

M.L.J. (S.N.) 40, that the landlord residing in a rental building need not prove that he was in danger of being evicted therefrom before he could get

possession of his own building under the Act. If it is established that there is a genuine present need of the premises for the landlord''s own

occupation, the court cannot presume mala fide.

It is also relevant to note in this context the decision of the Full Bench of this Court in A. Aishath Najiya v. Lalchand Kewalram (1989) 2 L.

W. 123 in which it is held that the law does not demand that a particular person should be under the threat of eviction and that mere demand for

higher rent by landlady at the earliest stage, as pleaded by the tenant, even assuming to be true would not debar the landlady from claiming eviction

on the ground of bona fide requirement of premises for her own use. In my view, the observation of the Full Bench judgment of this Court would

squarely apply to the present case.

In the present ease, as discussed above, the authorities below have considered the entire evidence on record and come to the conclusion that

the bona fide requirement of the respondent has been made out. Since the said finding, in my view, is on the basis of the correct reading of the facts

of law, I do not find any reason to interfere with the concurrent findings of the authorities below.

Hence, the civil revision petition fails and the same is dismissed. No costs.