Heard both sides.
2.The tenants are the revision petitioners. The landlord filed RCOP No.3 of 1995, on the file of the Principal Rent Controller, Dindigul, for eviction on the ground of wilful default in the payment of rent and for owners occupation under section 10(3)(a)(iii) of the Act.
3.The case of the landlord was that the agreed rent was Rs.750/- per month and the tenants have committed wilful default in the payment rent and deposited the rent in Court in RCOP No.48 of 1994 and even in that petition, the rent was not regularly deposited and the landlord required the building for the purpose of doing business of tobacco and his requirement is bona fide and he does not own any other buildings in that locality and therefore, eviction has to be ordered.
4.The revision petitioners/tenants filed the counter denying the wilful default in the payment of rent and contended that the landlord is admittedly doing business in partnership in a premises owned by the partnership firm and therefore, he is not entitled to evict the tenants and the landlord has got number of non-residential buildings, of his own for conducting business and with a mala-fide intention, he wants to evict the tenants, who are serving for the public. Therefore, it was contended that the requirement of the landlord is not bona-fide.
5.The learned Rent Controller, dismissed the petition on both the grounds and against the order of dismissal, the landlord filed appeal in RCA No.6 of 2001 and the learned Rent Control Appellate Authority, accepted the contention of the landlord and ordered eviction. Aggrieved by the same, this civil revision petition is filed by the tenants.
6.It is further seen from the order of the learned Rent Control Appellate Authority that the ground of wilful default was not pressed before the Rent Control Appellate Authority and eviction was ordered only on the ground of owner's occupation under section 10(3)(a)(iii) of the Act.
7.The learned counsel appearing for the revision petitioners contented that admittedly, the landlord is doing business in partnership with others, in a building owned by the partnership and therefore, he is deemed to be occupying a building of his own and hence, he is not entitled to claim eviction under section 10(3(a)(iii) of the Act.
8.The learned counsel appearing for the revision petitioners further contended that the requirement is also not bona fide and only with a view to evict the tenants, the landlord has wilfully refused to accept the money orders and the rent sent by the tenants and having realised that he is not entitled to eviction on the ground of wilful default, he has not pressed that relief before the Rent Control Appellate Authority and the landlord owns various other buildings in that locality, which are also non-residential and therefore, the requirement of the landlord is not bona fide and only for the purpose of getting more rent from the tenants, this petition was filed and hence, the landlord is not entitled to eviction order. In support of his contention, the learned counsel appearing for the revision petitioners relied upon the judgments reported in 2004(1) CTC 94, in the case of Bata India Limited, rep. by its Manager vs. M.R.Manickam and 1994-1-24, in the case of S.Devaji vs. K.Sudarshana Rao.
9.On the other hand, the learned counsel appearing for the respondent, Mr.M.S.Balasubramaniya Iyer, submitted that the landlord has proved the necessary ingredients for getting eviction under section 10(3)(a)(iii) of the Act and even though, the partnership business in which, the landlord is a partner owns a premises in that locality, that will not debar the landlord to get possession of the property from the tenants and the building, in which the partnership business is being carried on is owned by the partnership firm and in a partnership business, partners are not the co-owners and they are only entitled to have a share in the profit and therefore, owning of a premises by the partnership firm, in which the landlord is also a partner is not a bar for claiming possession of the other building, which exclusively belongs to the landlord. In support of his contention, the learned counsel appearing for the respondent, relied upon the judgment reported in AIR 1960 SC 100, in the case of Narayan Bhagwantrao Gosavi Balajiwaale vs. Gopal Vinayak Gosavi and others and AIR 1966 SC 1300, in the case of Addanki Narayanappa and another vs. Bhaskara Krishnapp(died) and thereafter his heirs and others.
10.The learned counsel appearing for the respondent Mr.M.S.Balasubramaniya Iyer, further submitted that it is an admitted fact that the respondent and his family members are doing tobacco business in that area and the respondent wanted to do independent business of tobacco and for that purpose required the premises in the occupation of the tenants and for starting tobacco business, no preparation is necessary and immediately on getting the possession, the business can be commenced and therefore, the landlord is bona fide requiring the premises for his own occupation and this civil revision petition has to be dismissed.
11.I have given my anxious consideration to the submission made by both the counsels.
12.In order to sustain the petition for eviction under section 10(3)(a)(iii), the following ingredients are necessary:-
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.
13.In this case, the main contention of the revision petitioners is that the landlord is a partner in the business and the partnership firm owns a premises in municipal locality and the partnership business is being carried on in the premises and therefore, under law, the landlord is having his own premises and hence, he is not entitled to eviction and doing business therein and therefore, he is not entitled to file the application under 10(3)(a)(iii) of the Act.
14.As contended by the learned counsel appearing for the respondent, in the judgment reported in AIR 1966 SC 1300, in the case of Annanki Narayanappa and another vs. Bhaskara Krishnapp (dead) and thereafter, his heirs and others, the Honourable Supreme Court has held that "the right of a partner in a partnership business is to claim a share in the share of profit and upon dissolution of the partnership to a share in the money representing the value of the property. As a firm has no legal existence, the partnership property will rest in all the partners and in that sense every partner has an interest in the property of the partnership. Nevertheless, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to any one."
Therefore from the above decision, it cannot be stated that the building owned by the partnership firm wherein the landlord is also a partner will debar the landlord to claim any other building belongs to him exclusively.
15.In the judgment reported in 2004(1) CTC 94, in the case Bata India Limited rep. by its Manager vs. M.R.Manickam, this Court has held that when the landlord is having a building of his own and a partnership business is being carried on in that premises in which the landlord is also one of the partners, the landlord is not entitled to claim other premises under section 10(3(a)(iii)of the Act. The reason was that the building belongs to the landlord and therefore, when the partnership firm business in which he is a partner is doing business in that premises he shall be deemed to be in possession of his own premises but that is not the case in this civil revision petition. Admittedly, the building in which the partnership firm is carrying on business does not belong to the respondent/landlord and it belongs to the partnership firm. Therefore, as held by the Honourable Supreme Court in the judgment referred to above, it cannot be stated that the landlord is owning the said premises.
16.Further, in the judgment reported in Vol.97 L.W 232, in the case of A.Gopalakrishna Chettiar vs. T.K.A.Yakub Hussain, it has been held that the fact that the landlord has been carrying on business in a premises belonging to the joint family of which he is a member does not dis-entitle him from getting his own building for the purpose of business.
Therefore, it cannot be stated that the landlord is a partner in the partnership business and that business is occupying a building on its own and therefore, the landlord is not entitled to eviction.
17.Admittedly, the building is a non residential building and the landlord is having rich experience in tobacco business and only for doing business in his independent capacity, he wanted to do business in the present building and hence, the requirement of the landlord cannot be doubted and it is only bona fide.
18.Further, in the judgment reported in (1983)96 L.W. 128 at page 130 [Tamil Nadu Wak Board, rep. by its Secretary K.T.Fakir Ahmed vs. S.Syed Inam Saheb and another] and (1985) 98 L.W. 666, [Thiru Chelliah Pandihan vs. Tmt.Anthoniammal and two others] this court held that there is no need for the landlord to carry on business when he files application under 10(3)(a)(iii) and it is sufficient, if he has got the resources to carry on business after obtaining possession. In this case, it is admitted that the landlord is doing partnership business with others and hence, it cannot be doubted that the landlord will not do the business in the premises in the occupation of the tenant. Hence, the landlord satisfies all the ingredients stated above.
19.Hence, the order of the learned Rent Controller Appellate Authority is confirmed and the civil revision petition is dismissed. The revision petitioners/tenants are the Cooperative institutions and considering the same, 12(twelve) months' time is granted for vacating and handing over the possession of the tenanted premises on condition of filing an undertaking affidavit to the same effect before the learned Rent Controller. No costs.
er To,
1.The Principal District Munsif, Dindigul.
2.The Principal Sub Judge, Dindigul.