Sironmani vs C.D. Anna Sholly

B. Rajendran, J.—The tenant is the revision petitioner. The landlady/respondent herein has filed RCOP No. 61 of 2010 before the learned

XV Judge, Court of Small Causes, Madras u/s 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as

''The Act'' for eviction of the tenant on the grounds of Owners Own Use and Occupation for non-residential use. The Rent Controller held that the

requirement of the landlady/respondent herein is bona fide, which was affirmed by the Appellate Authority on appeal filed by the tenant in R.C.A.

No. 408 of 2011. Aggrieved against the same, the tenant has come forward with this Revision Petition. The learned counsel appearing for the

revision petitioner would contend that courts below did not consider the definition ""carrying on business"" provided under the Act. The petition

mentioned premises was let out to the petitioner for non-residential use. While so, the landlady/respondent has not proved that her requirement to

occupy the petition mentioned premises for her own use and occupation for carrying on non-residential business was not proved in a manner

known to law by producing oral or documentary evidence. It was also not proved that as on the date of filing the Rent Control Original Petition,

the landlady/respondent was carrying on any business. Therefore, the conclusion arrived at by both the courts below that the premises is required

for the landlady to carry on non-residential business is liable to be interfered with. Both the courts below also failed to take note of the fact that in

the first floor of the petition mentioned premises, the landlady/respondent herein owns her own property and that property was let out to tenant for

rent. Therefore also, the alleged requirement to occupy the petition mentioned premises for carrying on non-residential premises is not bona fide

but mala fide. Lastly, the learned counsel for the petitioner would contend that the landlady has separately filed an application in R.C.O.P. No. 840

of 2008 for fixation of fair rent and the same was allowed on 07.12.2009. As against the same, the tenant/revision petitioner filed R.C.A. No. 81

of 2010 and the same is pending. Therefore, the learned counsel for the tenant/revision petitioner would contend that on the one hand, the landlady

has filed Rent Control Original Petition for fixation of fair rent and on the other hand, she filed the instant petition for eviction on the ground of

owners own use and occupation. Therefore, the intention of the landlady in filing the present petition is only to harass the tenant/revision petitioner

and the requirement is not bona fide. The revision petitioner is carrying on non-residential business for the past 20 years by promptly paying the

rent month after month and therefore, the learned counsel for the revision petitioner prayed for allowing the present Civil Revision Petition.

Contra, the learned counsel for the landlady/respondent herein would contend that no doubt, the landlady is the owner of a portion of the

premises in the first floor of the petition mentioned premises and the other half share portion owned by her brother. Therefore, the

landlady/respondent is not in occupation of the petition mentioned premises physically or directly and it was let out to tenant. According to the

counsel for the respondent, the owning of a portion in the first floor of the petition mentioned is not a bar for the respondent to seek for eviction of

the tenant on the ground of owners own use and occupation. As far as bona fides in seeking eviction, the learned counsel for the respondent would

contend that the petitioner is a destitute widow and she has been eking out her livelihood with the rental income received from the tenant who is

occupying a portion of the first floor of the petition mentioned premises. At the time when the landlady filed the Rent Control Original Petition, she

was pursuing her law degree and presently she has completed the same. Therefore, the landlady intended to set up a xerox and typing unit in the

petition mentioned premises for which she also underwent a training and obtained a certificate. This shows that the landlady has taken steps to set

up her own business and considering the same, both the courts below have rightly held that the landlady has proved the bona fides in seeking to

utilise the petition mentioned premises for her own use and occupation and ordered for eviction of the tenant from the petition mentioned premises

and he prayed for dismissal of the Civil Revision Petition.

I heard the counsel for both sides and perused the materials placed. The short point for consideration in this Civil Revision Petition is whether

the landlady/respondent herein is entitled for eviction of the tenant as contemplated u/s 10(3)(a)(iii) of the Act.

Though a feeble attempt was made by the tenant/revision petitioner in regard to ownership of the petition mentioned property, when she was

examined as RW1 before the Rent Controller, the tenant/revision petitioner admitted she had taken one shop out of the two shops from the grand

father of the landlady on 10.01.1986 for monthly rent and it was renewed subsequently. During the subsistence of tenancy, the tenant/revision

petitioner has taken another shop from the grand father of the land lady and presently she is continuing her tenancy in the two shops where she is

carrying on non-residential business of selling coconut, egg, banana and banana leaves under the name and style of ""S.M. Coconut Mandi"". It was

also admitted that after the death of the grand father of the landlady, the tenant/revision petitioner is paying the rent only to the landlady/respondent

herein. Thus, there is no dispute as regards ownership of the petition mentioned premises and the landlord-tenant relationship between the

respondent and the revision petitioner herein. When we analyse the evidence of PW1/landlady and RW1/tenant, in the cross-examination, RW1

admitted that she is paying the rent only to the landlady. As contemplated under the Act, a person lawfully entitled to receive the rent can also

maintain a petition for eviction. Therefore also, it is clearly proved that the landlady is the owner of the petition mentioned premises to whom, the

tenant/revision petitioner periodically pays the rent.

As far as the bona fides in seeking the petition mentioned premises for own use and occupation is concerned, admittedly, the building was let out

for non-residential purpose. The landlady requires the petition mentioned premises for running a xerox and typing unit and for this purpose, the

landlady also underwent a training. The certificate issued for having undergone the training in favour of the landlady/respondent herein was marked

as Ex. P1. Further, the landlady filed Ex. P2, certificate for having completed HDCA and Transcript in CSC Computer Education. There is no

dispute with regard to the training undergone by the landlady/respondent herein and this would show that the landlady/respondent had taken some

steps for setting up her own business. Thus, Exs. Pi and P2 would amply make it clear that the landlady/respondent, with an intention to carry on

her own business had made some attempts. The landlady/respondent also marked Ex. P4, a Tamil Nadu Government Gazette Publication to show

that she changed her name from C.D. Anna Sholly to H.D. Sarjana and this was also not disputed by the tenant/revision petitioner.

As regards the contention raised on behalf of the tenant/revision petitioner that the landlady/respondent herein is the owner of the portion of the

first floor premises in the petition mentioned premises, no doubt, the landlady/respondent is the owner of half of the portion in the first floor of the

premises and the other portion owned by her brother. The first floor premises is let out to a tenant for running a Tutorial centre. Therefore, it

cannot be said that the landlady/respondent herein is in occupation of a non-residential premises indirectly by letting it out for rent to tenants. The

word ""occupation"" contemplated under the Act would mean physical occupation of the building and mere occupation of the premises by a tenant

will not preclude the tenant/respondent herein from seeking eviction of the tenant/revision petitioner herein.

In this context, the Appellate Authority relied on the decision of this Court reported in Velmurugan Engineers by Proprietor, Reveendran Vs. A.

Kaliappan, wherein it was held that if the landlady takes some concrete steps to commence business, it is enough to prove her bonafides.

As regards the term ''carrying on business'' is concerned, the Appellate Authority relied on the decision of this Court reported in Sivanraj Vs.

Essakkimuthu, wherein it was held that it does not mean actual carrying on business. It is sufficient if the landlord take some steps for the purpose

of carrying on business. This proposition of law was reiterated by this Court in another decision of this Court reported in T.V. Jagatrakshagan

(since deceased) and Others Vs. N. Futaree Bai and Others, wherein it was held that ""carrying on business"" does not necessarily mean all steps

required for carrying on business to be taken. It will be sufficient if even one step is taken and proved.

As far as the word ""occupation"" defined under the Act is concerned, the Appellate authority relied on the decision of this Court reported in Bata

India Limited and Bata Shoe Mart Vs. M.R. Manickam, to hold that as per Section 10(3)(a)(iii) of the Act the landlord should not be occupying

any building belonging to her. In the present case, even though the landlady/respondent claims right over a portion of the petition mentioned

premises in the first floor, admittedly, the landlady/respondent is not carrying on any business in the petition mentioned premises or in any other

property by paying rent. As rightly pointed out by the Appellate Authority, as per Section 10(3)(a)(iii), the landlady/respondent herein need not be

in occupation of any other residential premises to seek for eviction of the tenant/revision petitioner herein and this requirement has been proved by

the landlady/respondent herein. The word ""occupation"" and ""ownership"" are totally different and to satisfy the term ""occupation"" the landlady must

occupy the premises physically and directly. In this case, the landlady is not in occupation of any other premises besides that the first floor portion

of the petition mentioned premises was let out and she is getting rent. Therefore, the landlady/respondent is not in occupation of any other non-

residential portion owned by her directly or physically. Therefore, I hold that merely because the landlady/respondent is the owner of a portion of

the petition mentioned premises, that will not disentitle her or it will be a bar for seeking eviction of the tenant/revision petitioner herein. It is also

seen from the deposition of PW1 that no where in the cross-examination of PW1 a suggestion was even put to the landlady that her requirement to

seek for eviction of the tenant is not bona fide. In fact, in the cross-examination, the landlady deposed that in the first floor portion of the petition

mentioned premises, she owns half share and the other portion belonged to her brother. It was further deposed that the first floor portion owned

by her was let out to Raj Tutorials. Further, in the cross-examination of RW1, she states that due to ill health, her son alone is taking care of the

business in the petition mentioned property and that she was having a non-residential premises which was let out to a tenant previously, but it was

closed 10 years before. While so, the requirement of the landlady/respondent herein for eviction of the revision petitioner on the ground of owners

own use and occupation cannot be said to be mala fide.

The learned counsel for the tenant/revision petitioner relied on the decision of this Court reported in (R. Sudhandhira Devi and others vs. K.

Navanithakrishnan) (2005) 4 MLJ 127 to contend that the burden of proof of pleadings is necessary to fulfil the provisions of Section 10(3)(a)(iii)

of the Act and such burden relating to bona fides was not proved by the landlady. In that case relied on by the counsel for the revision petitioner,

this Court considered that the pleadings raised on behalf of the landlord was vague and not substantiated or supported by any material evidence.

Therefore, this Court held that the landlord therein has not proved his bonafides. In the case on hand, the landlady has clearly pleaded and proved

her necessity to occupy the petition mentioned premises and the same was also substantiated by producing documentary evidence such as Exs. P1

and P2 Certificates issued in favour of the landlady to show that she had underwent a training. Therefore, the decision cited by the learned counsel

for the revision petitioner cannot be made applicable to the facts of this case.

Similarly, the learned counsel for the petitioner relied on the decision of this Court reported in D. Periyagopal @ Gopal Vs. K. Viswanathan,

to contend that the mind of the landlady or her aim is only to dispossess the tenant/revision petitioner herein. According to the learned counsel for

the revision petitioner, the landlady/respondent has also filed a Petition for fixation of fair rent, while so, her intention is only to dispossess the tenant

from the petition mentioned property. In that case, the dispute is with respect to occupation of residential premises. This Court found that the claim

of the landlord to shift or re-shift his residence from the first floor of the Petition Mentioned property was made without any rhyme or reason.

Therefore, this Court held that the action or intention of the landlord is only to throw out the tenant from the petition mentioned premises. This

decision cannot lend any support to the revision petitioner because, as mentioned above, merely because the landlady has filed a petition for

fixation of fair rent that will not disentitle her to seek the relief. In this case, the aim of the landlady is only to occupy the petition mentioned

premises for carrying on business and this Court do not find any mala fide intention to file the petition for eviction.

The learned counsel for the revision petitioner also placed reliance on the decision of this Court reported in Govinda Chettiar Vs. Pachayappa

Pandithar, wherein this Court considered as to what constitutes the term ""carrying on business"". In fact, this decision was also relied on by the

Appellate Authority. In that case, it was held that mere obtaining of licence will not entitle the landlord to seek for eviction of the tenant. In the

present case, the landlady has filed Exs. P1 and P2, pleaded her bona fide requirement to carry on business besides that she also proved that the

tenant has a non-residential building in the very same area where she was running the business quite some time. Therefore, I am of the view that the

said decision relied on by the counsel for the revision petitioner cannot be made applicable to the facts and circumstance of the case.

In the decision reported in K. Gopalan Nair Vs. V. Kamalammal and P.N. Raju Chettiar Vs. The State of Tamil Nadu and Another, relied on

by the counsel for the revision petitioner, it was held that mere intention to commence a business will not be sufficient to seek for eviction of the

tenant. The decisions cannot be made applicable to this case where, as mentioned above, the landlady has clearly pleaded and proved her bona

fide intention to commence a business of her own and they were also substantiated by documentary evidence, Exs. P1 to P4.

The learned counsel for the revision petitioner also relied on the decision of this Court reported in V.D. Murugesan Vs. V. Raj Mohammed u/s

25 of the Act, this Court can interfere with the decision of the Courts below if the decision is unreasonable and resulted in miscarriage of justice.

No doubt it is true that this Court is empowered to interfere with the decision of the Rent Controller as well as the Appellate Authority while

exercising its jurisdiction u/s 25 of the Act, only if the decision is perverse or arbitrary. In this case, both the courts below have analysed the entire

evidence made available on record and came to a just conclusion, which does not deserve interference by this Court.

The learned counsel for the revision petitioner lastly relied on the decision of this Court reported in (K. Gopalan Nair vs. V. Kamalammal)

(1981) 1 MLJ 40 to contend that the requirement of the landlady to occupy the petition mentioned premises need not survive only on the date of

filing the Rent Control Original Petition but it should survive continuously till the final adjudication of the case. In the present case, it is contended by

the landlady that she pursued her Law Decree at the time of filing the Original Petition and completed it now. It is also contended that she may or

may not practice as a lawyer. Thus, on the date of filing the Original Petition, she has not completed the Law Decree and subsequently completed

it. Further, after pursuing the Law Decree, the landlady may practice or carry on business of her own. However, if she intends to practice, then it is

for the landlady/respondent to obtain prior permission from the Bar Council of India for carrying on non-residential business in the petition

mentioned premises. Moreover, this Court also cannot forecast as to what whether the landlady/respondent may practice as a lawyer or not. In

any event, her requirement cannot be said to be mala fide and it is a bonafide intention. In fact, the tenant/revision petitioner also contended before

the Courts below as also before this Court that the income derived by the landlady through rent is sufficient for her to lead a decent life. As rightly

pointed out by the courts below, it is not for the tenant/revision petitioner to say whether the income received by the landlady is sufficient or not.

When the intention of the landlady is to augment her income by judiciously utilising her knowledge and skill, that cannot be said to be a decision to

dispossess the tenant from the petition mentioned premises. Both the Courts below have discussed in detail as to whether the landlady/respondent

has proved her bona fides and concluded that the landlady/respondent has pleaded and proved her requirement. Therefore, such a well considered

decision of the courts below is not required to be interfered with by this Court.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Today, after pronouncing the order in the above Civil Revision Petition, the learned counsel for the tenant/revision petitioner prayed this Court

to grant time for vacating the petition mentioned premises and to handover the vacant possession thereof to the landlady/respondent. Taking into

consideration the above submission of the counsel for the revision petitioner and other facts and circumstance, two months time is hereby granted

to handover the vacant possession of the petition mentioned premises. It is made clear that till such time, the revision petitioner shall pay the

monthly rent to the landlady without any default.