This Civil Revision Petition has been filed against the order and decreetal order, dated 02.03.2015, passed in R.C.A.No.21 of 2014 by the learned Rent Control Appellate Authority (Principal Subordinate Judge) Madurai, reversing the order and decreetal order, dated 11.02.2014, passed in R.C.O.P.No.167 of 2009, by the learned Additional Rent Controller (Additional District Munsif) Madurai Town.
2.The petitioner is the tenant and the respondent is the landlord. The respondent filed R.C.O.P.No.167 of 2009 before the Additional District Munsif Court (Additional Rent Controller), Madurai Town, for eviction of the petitioner on the ground that he requires the said building for his own occupation. According to the respondent, he is residing with his wife in first floor and he let out the ground floor to the petitioner for non- residential purpose. The respondent and his wife are aged persons and due to age related ailments, they are finding it very difficult to climb stairs to reach the first floor. The respondent's son is married and the first floor is not sufficient for their occupation. According to the respondent, during April 1993, the respondent and the petitioner entered into a registered Tenancy Agreement for four years and the monthly rent is fixed at Rs.1,500/- and the present monthly rent is Rs.2,500/- till date. The ground floor portion has two Halls, two Rooms with Kitchen, Veranda and Toilet. The ground floor portion will be more sufficient and convenient for the petitioner and his family members. For the above reasons, the respondent filed R.C.O.P.No.167 of 2009 for eviction on the ground of owner's occupation.
3.The petitioner filed counter statement and denied the various averments made by the respondent. According to the petitioner, the ground floor was let out to him for non-residential purpose and he was running a Jaggery business on commission basis. The respondent and his wife are hale and healthy and they tried to take advantage of their age to evict the petitioner. The respondent's son is working in Abroad. The respondent demanded Rs.10,000/- per month as rent. The petitioner did not agree for the same. In view of the same, the respondent has filed the present petition with mala fide intention.
4.Before the learned Additional District Munsif [Additional Rent Controller], Madurai Town, the respondent examined himself as P.W.1 and marked five documents as Exs.P.1 to P.5 and the petitioner examined himself as R.W.1 and did not mark any documents.
5.The learned Additional District Munsif, Madurai Town, considering the materials on record, by order dated 11.02.2014, dismissed the R.C.O.P. holding that the requirement of the respondent is not bona fide.
6.Against the said order of dismissal, dated 11.02.2014, the respondent filed R.C.A.No.21 of 2014 before the Principal Subordinate Court, Madurai.
7.The learned Principal Subordinate Judge [Rent Control Appellate Authority], Madurai, considering the evidence and medical certificate produced by the respondent and considering the judgment relied on by the learned counsel for the respondent, allowed the appeal, vide order dated 02.03.2015, setting aside the fair and executable order of the learned Additional District Munsif, Madurai Town and ordered eviction. The learned Principal Subordinate Judge held that requirement of landlord is bona fide and is not mala fide, as alleged by the petitioner. The learned Principal Subordinate Judge accepted the contentions of the respondent that due to old age and his personal requirement only, he has filed R.C.O.P., for eviction and the grounds raised by the respondent are bona fide.
8.Against the said order dated 02.03.2015, made in R.C.A.No.21 of 2014, the petitioner has come out with the present Civil Revision Petition.
9.The learned counsel for the petitioner submitted that the learned Principal Subordinate Judge failed to see that the respondent wanted a monthly rent of Rs.10,000/- from the existing rent of Rs.2,500/- per month. The learned Principal Subordinate Judge also failed to see that the respondent filed R.C.O.P.No.285 of 2010 for fixation of fair rent and the same is pending. The learned counsel for the petitioner further submitted that the petition premises was leased out for non-residential purpose and the requirement of the respondent for residential purpose is not maintainable. Originally, the petitioner's father was tenant under the respondent's father and the respondent's father also tried to evict the petitioner's father and both of them died. The petitioner and the respondent became tenant and landlord. The respondent admitted that he is not carrying on any business and therefore, the present R.C.O.P. is not maintainable. The learned counsel for the petitioner also submitted that the learned Principal Subordinate Judge erred in holding that the landlord can seek eviction of a tenant from non-residential property for residential use. The learned Principal Subordinate Judge erred in accepting the Medical Certificate produced by the respondent. The respondent did not examine the Doctor, who gave the said Medical Certificate. The respondent has not proved that he is taking treatment for his ailment. The learned Principal Subordinate Judge also failed to appreciate the facts that the respondent himself admitted that his son is working and residing in Abroad.
10.In support of his submissions, the learned counsel for the petitioner relied on the following judgments:
(i) 2005 (5) CTC 537 [K.A.M.A.K. Nataraja Nadar & Sons and others Vs. R.Kannan], wherein at paragraph 12, it has been held as follows:
?12. The landlord attempted to evict the tenants, classifying the building as residential one, thereby claiming the same for personal occupation of the grandson, who is going to be married soon. This ground was brought under cloud, by the tenants stating that the demised premises is, non residential building used as godown for stocking the goods, for the business of the tenants, and therefore seeking the same for occupation of the grandson, for residential purpose is not maintainable. Section 10(3)(a)(i) of the Act enables the Court to order eviction, in respect of the residential building, if it requires for the occupation of the landlord or any member of his family, if they are not occupying a residential building of their own in the city, town or village concerned, and if it is a non residential building, only Section 10(3)(a)(iii) of the Act would come into operation. The consideration or the ingredients required under Section 10(3)(a)(i) and 10(3)(a)(iii) of the Act are different in nature and both sections cannot go together. Therefore, the landlord is entitled to evict the revision petitioners, on the ground of personal occupation, for residential purpose, if it is made out that the building is used for residential purpose. In other words, if it is made out, that the building is used or let out for non residential purpose, then the landlord is not entitled to invoke Section 10(3)(a)(i) of the Act.?
(ii) 2001 (1) MLJ 118 [C.R.I. Limited, Chennai Vs. Murali Mani and others], wherein at paragraph 16, it has been held as follows:
?16.It is also relevant to point out that the demised premises has been leased out for nonresidental purposes and the landlady has sought for eviction of the revision petitioner for residential purposes. The law is well settled that eviction can be sought against the tenant by the landlord of a nonresidential premises for nonresidential purposes alone and not for residential purposes, subject to Section 21 of the Act.?
11.Per contra, the learned counsel for the respondent reiterated the averments mentioned in the R.C.O.P. and contended that the respondent and his wife are aged persons. The ground floor is convenient and suitable for their residence. The ground floor has two Halls, two Rooms with Kitchen, Veranda and Toilet and only a residential portion was let out to the petitioner for non-residential purpose. The respondent has proved that due to old age, he requires the ground floor portion for his residence by deposing as P.W.1 as well as by producing and marking Medical Certificate. The petitioner without any basis, has alleged that the respondent demanded Rs.10,000/- per month as rent and when the petitioner did not agree for the same, has filed R.C.O.P. with mala fide intention. The learned Additional District Munsif on erroneous appreciation of oral and documentary evidence let in by the respondent, dismissed the R.C.O.P., rejecting the Medical Certificate produced by the respondent. On the other hand, the learned Principal Subordinate Judge has properly appreciated the materials on record and allowed the appeal. The learned counsel for the respondent further contended that the landlord can seek eviction of tenant in a non-residential building for his own residential purpose.
12.In support of his submissions, the learned counsel for the respondent relied on the following judgments:
(i) 2008 (5) CTC 404 [M.Vedapuri Vs. O.M.Raj and another], wherein at paragraph 14, it has been held as follows:
?14.Merely because the landlords are having some other building, their bonafide requirement cannot be disputed on that ground. It is a settled proposition of law that the landlord on bonafide reason can seek a non- residential building for residential use. The Court has to consider whether the reason, as stated by the landlord is bonafide or not. In the instant case, it is not in dispute that the second respondent is suffering from leprosy and she is in need of treatment and the hospital is nearby the premises that was let out to the revision petitioner.?
(ii) 2013 (3) LW 845 [A.S.Venkataraman Vs. A.V.Harikrishnan Naidu], wherein at paragraph 14, it has been held as follows:
?14. .... It is well settled that the landlord is the person who has every right to choose which of the portion or shop is fit for his own occupation either for residential or non residential purpose and the tenant cannot dictate terms on this aspect. Being the owner of the premises and having satisfied his bonafide requirement, his wish and say are final in choosing the premises and the tenant has got no say in this.?
13.I have considered the submissions of the learned counsel appearing for the parties and perused the materials available on record.
14.The points for consideration in the Civil Revision Petition are,
(i) Whether the landlord can seek non-residential building for his own residential purpose?; and
(ii) Whether the request of the landlord is bona fide?
Point No.(i):
15.The building in question has two portions, i.e., ground floor and first floor. In the ground floor, the petitioner is tenant for non- residential purpose and he is carrying on Jaggery business on commission basis. In the first floor, the respondent is residing with his wife. Further, the respondent has averred that the ground floor has two Halls, two Rooms with Kitchen, Veranda and Toilet. These facts are not disputed by the petitioner. From this, it is seen that the ground floor portion, which is a petition premise in the R.C.O.P., can be used for residential purpose also. In the circumstances, if the building is let out for non-residential purpose, the landlord can maintain an application for eviction of tenant for residential purpose, provided, the structural and physical features of the building is suitable for residential purpose. The usage or purpose, for which the building is let out for residential or non-residential purpose is not a criteria to find out whether the building is residential or non- residential. The real test is structural physical feature of the building for deciding whether the building is suitable for residential or non- residential purpose. The learned counsel for the petitioner relied on two judgments of this Court, wherein it has been held that the landlord cannot seek eviction of tenant from non-residential portion for his residential purpose. On the other hand, the learned counsel for the respondent relied on two judgments of this Court, wherein it has been held that the landlord can seek eviction of tenant from the non-residential portion for residential purpose. The judgments reported in 2008 (5) CTC 404 [supra] and 2013 (3) LW 845 [supra] relied on by the learned counsel for the respondent, are later ones and I am inclined to follow the same. Therefore, I hold that the respondent is entitled to maintain R.C.O.P. for eviction of the petitioner from ground floor portion. From the materials available on record, it is clear that the ground floor is fit to be used for residential purpose. Point No.I is answered accordingly.
Point No.(ii):
16.The respondent has contended that he and his wife are aged persons and they are finding it very difficult to climb stairs. They have also produced Medical Certificate. The petitioner is not disputing the age of the respondent and his wife. His only contention is that the respondent and his wife are hale and healthy and they have not proved the Medical Certificate, as they failed to examine the Doctor, who issued the Certificate. This contention is untenable. There is nothing on record to disbelieve the Medical Certificate produced by the respondent as well as his oral evidence with regard to the respondent's and his wife's ailments. Secondly, the respondent's son is married and has a family. It is an admitted fact that the respondent's son is working in foreign country and his family is staying with him. In view of this fact, the petitioner contended that the respondent does not require the ground floor for his residential purpose. The first floor portion itself is sufficient for residence of the respondent and his family members. There is no immediate requirement for the larger portion of the building for residence of the respondent. This contention has no force. It is well settled that it is not for the tenant to dictate which portion will be more convenient for use of landlord. Further, the contention of the learned counsel for the respondent that as and when the respondent's son comes from foreign country and settle down at Madurai, the respondent cannot evict the petitioner from the petition premises overnight, has considerable force. The respondent has proved that his requirement of ground floor is bona fide. The petitioner has not proved that the respondent has filed R.C.O.P. only to get enhancement of rent. In view of the above foregoing reasons, I hold that the requirement of the respondent is bona fide. Point No.(ii) is answered accordingly.
17.In the result, this Civil Revision Petition is dismissed. No costs. The petitioner is directed to vacate the premises and hand over possession to the respondent/landlord, within a period of two months from the date of receipt of a copy of this order.
To
1.The Principal Subordinate Judge, (Rent Control Appellate Authority), Madurai.
2.The Additional District Munsif, (Rent Controller), Madurai Town..