T. Rajyalakshmi vs K.B. Anandhakrishnan and 2 Others

V. Kanagaraj, J.—This Civil Revision Petition is directed against the fair and decretal order dated 83.1995 made in R.C.A.No.754 of 1993

by the VIII Judge, Court of Small Causes, Madras thereby reversing the order dated 3.9.1992 made in R.C.O.P.No.3323 of 1989 by the XI

Small Causes Judge, Madras. The original Rent Control Petition has been filed by the landlady u/s 10(3) (a) (iii) of the Tamil Nadu Buildings

(Lease and Rent Control) Act seeking eviction of the tenant for owners occupation on ground that the first respondent therein is the tenant in

respect of the non-residential building at No.170, Govindappa Naicken Street, Madras-1 in the ground floor on a monthly rent of Rs.600/- ; that

the petitioner''s husband Radhakrishnan is carrying on business in the name and style of M/s.T.Lakshmikantham Chetty & Sons at No.212, Bazaar

Street, Sholingur, North Arcot District; that now the petitioner''s husband has decided to do textile business and further he has intended to settle

down along with the petitioner at Madras; that the premises consists of ground floor and first floor; that the entire ground floor is occupied by the

first respondent therein for nonresidential purpose and the first floor is occupied by other tenants for residential purpose; that neither the petitioner

nor her husband owns any other property, either residential or non-residential, in the city of Madras; that the premises is located in a busy

commercial locality and would be convenient for their proposed textile business; that the first respondent therein, who is deceased now, was the

sister of the petitioner and in spite of many demands to vacate the premises for her personal occupation, she failed to do so and hence issuing an

Advocate Notice dated 27.11.1989, thereby calling upon her to vacate the premises, the petitioner has filed the R.C.O.P. for vacating the tenant in

order to occupy the premises by the owner herself.

In the counter, besides generally denying all the averments of the petition, the respondent therein would contend that the widow of one Ratnam

Chetty, in consultation with her daughter, let out the premises to the respondent together with the goodwill of P.Ramappa Chetty & Son on a

monthly rent of Rs.500-, which subsequently got enhanced to Rs.600/- ; that the said widow of Ratnam Chetty herself is receiving the rents; that

therefore the Rent Controller has no jurisdiction to try the matter; that the tenant is not ''K.Geetha'' but ''P.Ramappa Chetty & Son, by Proprietrix

K.Geetha'', that the husband of the petitioner is not having any independent business of his own; that he is permanently residing at Sholingar taking

care of the partnership business; that the petition premises consists of ground floor, first floor and second floor and also partly built third floor, that

for the petitioner, there is no idea to move to Madras but in a motivated manner to evict the respondent and let out the premises to some

Marwadis for higher rent and for pagadi, she has come forward to file the eviction petition; that since the goodwill of the firm with the accessories

and telephone having been let out to carry on business, the petition premises does not come under the purview of the Rent Control Act; that

according to the petitioner, the husband of the respondent cannot carry on business, who is in essential service and hence the petitioner cannot

maintain the petition; that the building is exempted u/s 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act; that on account of the

personal misunderstandings that arose between the sisters regarding sale of the premises the petitioner has malafide filed the above Rent Control

Petition and there is no merit in the petition and would ultimately pray for dismissing the same with costs.

During pendency of the R.C.O.P., since the sole respondent died and her husband and children, being her only Legal Representatives have been

ordered to be impleaded as respondents 2 to 4 and they have also filed additional counter contending that ''K.Geetha'' is not the tenant but

''P.Ramappa Chetty & Son, by Proprietrix K.Geetha'' is the tenant and hence the petition as framed is not maintainable and it is a composite lease

and the Rent Controller has no jurisdiction to entertain the same; that the relationship of landlord and tenant was between Rajalakshmi and

P.Ramappa Chetty and Son and rent receipts were issued only in the name of P.Ramappa Chetty and son by Proprietrix K.Geetha; that after the

death of first respondent they have taken Sailashree the proprietor and rents were tendered but the petitioner refused to receive herself and also

when tendered in the Court, that the petitioner has filed the R.C.O.P. on the ground that she required the portion for her husband''s business and

he is not a dependent of the petitioner and subsequent to the filing of the R.C.O.P., he is also carrying on business and now the need of the

petitioner is over and would pray to dismiss the petition with costs

During enquiry, the petitioner, besides examining herself as PW1 would also examine her husband Radhakrishnan as P.W. 2 and would mark

28 documents as Exs.P.1 to P.28. On the part of the respondents, the second respondent, husband of the deceased first respondent, besides

examining himself as R.W.1 would also examine one Vudayarlu as R.W.2 and would mark ten documents as Exs.R.1 to R.10.

The Rent Controller, having discussed the merit of the case based on the pleadings and having regard to the evidence placed on record, would

ultimately allow the Rent Control Application, further giving a time of three months for vacating the premises and handing over vacant possession.

Aggrieved, the- tenants have preferred the Rent Control Appeal and the Rent Control Appellate Authority having heard the appeal and discussing

the merits of the case in his own way had ultimately allowed the appeal setting the fair and decretal order passed by the Rent Controller. It is only

against the said judgment and decree rendered by the Rent Control Appellate Authority, the above revision has come to be filed by the landlady on

certain grounds as put forth in the grounds of revision.

During arguments, the Learned Counsel for the revision petitioner/landlady would contend that the petitioner and other sisters including the

deceased first respondent in the original petition own their independent properties; that in 1980, in a family partition held between their mother and

the sisters, the petition premises fell to the share of the revision petitioner; that the deceased tenant was allotted a house in Amman Koil Street, in

which herself and her family members were living; that the deceased Geetha got married somewhere in 1974 and in the partition held in the year

1976, the ground floor was taken for business purposes by the second respondent the husband of the deceased first respondent and since he is an

Executive Engineer and a Government Servant, he could not do business; that having taken the tenancy in the name of his wife, he started the

business of selling iron safes, bureaus and such other articles; that the revision petitioner got married during 1984-85 i.e. subsequent to the partition

in the year 1980; that her husband is doing business at Sholingur and he wants to set up his business in the tenancy premises since they have

decided to settle down at Madras, but their request had been turned down and hence the petition; that the revision petitioner and her husband have

entered into box and deposed to the facts of the petition; that the first respondent herein and yet another Vudayavarlu have deposed on their side;

that Exs.P.1 to P.28 have been marked on the side of the revision petitioner and Exs.R.1 to R.10 on the side of the respondents.

The Learned Counsel for the petitioner would further contend that the contention of the respondent is that Ramappa Chetty & Son is not an

individual but a firm and that the said firm has only entered into the tenancy agreement; their second contention is that the tenancy u/s 30 of the

Tamil Nadu Buildings (Lease and Rent Control) Act is a composite tenancy subject matter of which are the building, machineries and the goodwill

and hence the Tamil Nadu Buildings (Lease and Rent Control) Act is not applicable to the tenancy but both the Courts below rejected these

contentions and regarding merits of the owners occupation, the petitioner has proved that her husband is in business. At this juncture, the Learned

Counsel for the petitioner would cite a judgment delivered in S.L.Subramanya Naidu v. V.R.Mohammed Ziauddin reported in 81 L.W.34,

wherein it is held:

In the present case, the landlord has done nothing except to announce for the first time in these proceedings that he intends to open a business and

that is certainly not sufficient to attract S. 10(3)(a)(iii) of the Act cannot apply to a case where the business carried on is in a town different from

the one in which the disputed premises is situated. But that apart, the business which his family is carrying on, cannot be regarded as a business

which he is carrying on and if he has to be regarded in his individual capacity, he is certainly not carrying on any business.

The Learned Counsel for the revision petitioner would further contend that before the Rent Control Appellate Authority, the above citation was

submitted by the respondents herein, for which the revision petitioner has submitted a judgment delivered in Associated Sales of India v. Pani &

Co. reported in 1963 (1) M.L.J. 38 (S.N.) wherein it is held:

Even otherwise, where it is proved that the landlord is carrying on grains business in mofussil and wants to open a branch of that business in the

city, the requirement will be bona fide and would constitute a ground for eviction of tenant.

At this juncture, the Learned Counsel for the revision petitioner would cite another judgment delivered in R.M.Solai Nadar v.

M/s.A.T.A.V.Guruswami Nadar & Co. represented by A.V.Guruswami Nadar reported in (1969) I M.L.J. 629=82 L.W.343 wherein besides

explaining the scope of Section 115 of the CPC and offering the true meaning of the terms ''requirement'' and ''carrying on business'' clarity is given

for the question of bona fides as given in the judgments delivered in N.Sampathu Chetty v. S.V.Bapulal reported in (1967) I M.L.J.289 and

Anandhayee Ammal v. S.M.Khaja & Co., reported in I.L.R.(1968) 3 Mad.284. (1967) I M.L.J. 368, wherein an application u/s 10 (3) (a) (iii) of

the Tamil Nadu Buildings (Lease and Rent Control) Act is considered. I extract the same hereunder:

Where there is a foundation or reasonable material for a Judge to come to the conclusion that there is a business either by the landlord or landlady

or his or her son, as the case may be, and it is for that business that the premises is required, there is no reason why the Tribunal should not apply

strictly Section 10 (3) (a) (iii) which makes it clear that the landlord would as a matter of course be entitled to it once that requirement is

established. It is not necessary that the son should carry on a business in the city, town or village in which the property is situate to enable the father

or mother to apply u/s 10(3) (a) (iii).

Citing the above judgments, the Learned Counsel for the revision petitioner would comment that the lower appellate authority under the wrong

impression that the judgment cited by the respondents herein reported in 81 L. W.34 as the latest, thoughtless of the fact that it had been of the

year 1967 and the other judgment cited by the revision petitioner herein reported in 1969 (I) M.L.J. 184=82 L.W.432 to be the older one even

though it is the latest and wherein what had been held in 81 L.W. 34 has been over ruled, allowed the appeal erroneously as a result of such wrong

conclusion arrived at.

The Learned Counsel for the revision petitioner would then cite the following judgments in order to emphasize the bona fides of the

requirement of the building by the landlady and when it is demanded, the tenant should be ordered to be evicted. They are:

Rajalakshmi Ammal and another v. S.S.Piramanavagam Pillai reported in Indian Law Reports (1979) I Mad 387= 92 L.W.68:-

2 Krishnan Nair and Others Vs. Ghouse Basha,

M.Aishati Najiya v. M/s. Lalchand Kewalram and others reported in (1989) II M.L.J. 28=1989-2-L.W.123 (F.B.);.

N.Athimoolam v. Arokianatnan reported in 1993 (I) L.W. 663; and

N. Rengaiyan Vs. A.M. Noorullah,

Citing the above judgments, the Learned Counsel for the revision petitioner would exhort that these judgments clearly held that the landlady need

not have the business in the city but if the same is even outside, the owner is entitled to get possession of the property on the ground of owners

occupation and would further say that Section 10(3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act barely requires that the

landlord must have the business somewhere not in the city itself where in the property is located.

The Learned Counsel for the revision petitioner would further reveal that on 3.9.1992, the Rent Controller ordered eviction and in execution of

the decree passed by the Rent Controller, the landlady had taken possession on 26.4.93 itself and continues to occupy the same, that the tenants

now come forward to state that the third respondent has become the Proprietrix of the once existed firm and that the said firm is now requiring the

property; that the third respondent is married and independently settled; that the fourth respondent too is a student; that the second respondent

being a Government Servant cannot run the business and the first respondent having already been deceased, they cannot run any business nor have

they got the capacity to do so much less under pretext of the defunct firm. The Learned Counsel would end up his argument stating that the

appellate authority should not have interfered with the valid order passed by the Rent Controller and would pray the Court to set aside the order

passed by the Rent Control Appellate Authority besides restoring the order passed by the Rent Controller.

In spite of posting the above matter for arguments, neither any of the respondents nor any counsel on their behalf appeared to argue the above

matter on their part and hence based on the arguments of the Learned Counsel for the petitioner and on the available materials on record, the

above matter has to be decided in revision.

It is a petition filed by the landlady u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, seeking eviction of the tenant

for owners occupation. On a perusal of the facts and circumstances of the case as pleaded by parties and the evidence placed on record by both

the parties and on careful consideration of the orders passed by the Rent Controller and the Rent Control Appellate Authority as well, what comes

to be known is that based on facts and overwhelming evidence placed on record, the Rent Controller has arrived at the decision to order eviction

of the tenant. But, on the contrary, though on facts the appellate authority has accepted the findings arrived at by the Rent Controller, under the

wrong impression that the judgment cited by the tenant reported in 81 L.W.34 is the latest taking the figures 81 as indicative of the year and

rejecting the later judgment cited by the landlady reported in 1969 (1) M.L.J. 184, has erroneously concluded to decide the matter in favour of the

tenant, which is erroneous and false. Secondly, the legal propositions are to the effect that when the landlady requires the premises bona fide to set

up her own business, it should positively be considered, irrespective of the fact that she has business interest, whether within the city limits the

premises is located or outside in the mofussil, and there should not be any classification that the business is at one place and the premises, wherein

the business is either sought to be shifted or expanded is at another place. In this sense, the landlady definitely has an upper hand than that of the

tenant, when the premises is required for her own occupation for business. Thirdly, if we look into the side of the tenants, everything is in the

shambles and neither any business is practically being carried on by them nor has any one of them the feasibility to do business in the near future as

it has been well brought forth in the argument of the Learned Counsel for the revision petitioner, which is not at all rebutted by the other side

validly. Hence, in these circumstances, presumption could be formed to the effect that the premises is not at all required for any business purpose

by the respondents.

Be it as it may, it is the strong case of the landlady that as early as on 26.4.1993 itself, in execution of the decree passed by the Rent Controller

in the R.C.O.P., she has taken possession of the premises and in fact, she is still in occupation of the same till date and for all practical purposes it

seems that the possession of the premises with landlady has become well settled and has attained a point of no return unless multifarious legal

proceedings are instituted and ultimately succeeded, which is far-fetched in the state of affairs that is prevalent and in my opinion it is quite

undesirable to think of disturbing the status that is prevalent at present. In all the above circumstances, the case of the landlady, definitely,

outweighs the case of the respondents/tenants and the prayer of the landlady has to be answered in the affirmative.

In result, the above Civil Revision Petition succeeds and the same is allowed setting aside the judgment and decree dated 8.3.1995 made in

R.C.A.No.754 of 1993 by the VIII Judge. Court of Small Causes, Madras. The fair and decretal order dated 3.9.1992 made in

R.C.O.P.No.3323 of 1989 by the XI Small Causes Judge, Madras is hereby restored and confirmed. However, in the circumstances of the case,

there shall be no order as to costs.