PRAYER in C.R.P.(NPD)(MD)No.139 of 2004 Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, [as amended by the Tamil Nadu Act 23/1973] against the fair and decreetal Order passed in RCA.No.12 of 2003, dated 08.04.2004, on the file of the Rent Control Appellate Authority (Principal Subordinate Judge), Tirunelveli, reversing the fair and Decreetal Order passed in R.C.O.P.No.48 of 2001, dated 07.02.2003, on the file of the Rent Controller (Second Additional District Munsif Court), Tirunelveli.
PRAYER in C.R.P.(NPD)(MD)No.50 of 2006 Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18/1960, [as amended by the Tamil Nadu Act 23/1973) against the Fair and Decreetal Order passed in R.C.A.No.63 of 2004, on the file of the Rent Control Appellate Authority (Second Additional Sub Court), Tirunelveli, dated 19.10.2005 modifying the fair and decreetal order passed in R.C.O.P.No.46 of 2001, on the file of the Rent Controller (First Additional District Munsif Court), Tirunelveli.
!For Petitioner ... Mr.K.Srinivasan ^For Respondent ... Mr.S.S.Sundar :COMMON ORDER C.R.P.(NPD)(MD)No.139 of 2004 This Civil Revision Petition is filed by the petitioner/land lord challenging the Order dated 08.04.2004 made in RCA.No.12 of 2003, on the file of the Rent Control Appellate Authority (Principal Subordinate Judge), Tirunelveli, reversing the Fair and Decreetal Order passed in R.C.O.P.No.48 of 2001, dated 07.02.2003, on the file of the Rent Controller (Second Additional District Munsif Court), Tirunelveli.
2. The petitioner in both the Civil Revision Petitions is the owner of the scheduled building situated at Block No.3, Keelapputhu Street @ Bharathirar Street, T.S.Ward.No.4 in Tirunelveli District. According to the petitioner, the respondent paid a sum of Rs.50,000/- to the petitioner on 26.10.1998 and the respondent was allowed to enjoy the building in lieu of interest. When the petitioner issued a notice on 25.04.2001, calling upon the respondent to receive a sum of Rs.50,000/- and surrender possession of the schedule building, the respondent denied to surrender possession by sending a reply stating that even prior to 26.10.1998, he occupied the building as a tenant and after 26.10.1998, he is enjoying the property in lieu of interest.
3. According to the petitioner, the respondent was paying rent of Rs.800/- per month before he paid the lumpsum amount of Rs.50,000/- and the same was endorsed in the passbook maintained by the respondent. From 01.11.1998 onwards, the respondent refused to pay the rent at the rate of Rs.800/- per month and the tenant claimed that the rent is only Rs.400/- per month. Since the respondent was in arrears of rent from 01.11.1998 to 31.05.2001 at the rate of Rs.800/- per month for 19 months to the tune of Rs.15,200/-, and when the same was demanded by the petitioner, he sent a Demand Draft for a sum of Rs.800/- along with a reply notice, there is arrears of rent to the tune of Rs.14,400/-. The same being wilful default on the part of the respondent, the petitioner filed R.C.O.P.No.48 of 2001, on the file of the learned Rent Controller [Second Additional District Munsif], Tirunelveli, on the ground of wilful default.
4. According to the petitioner, the schedule building was leased out to the respondent for the purpose of residence and also for running his milk vending business and the respondent was residing in the upstairs. Only about 5 years back, he shifted his residence to his newly constructed house at Gomathi Nagar, Suthamali Junction. As the petitioner is conducting his milk vending business in a rented premises and residing in a rented premises, the petitioner claims the demised building for his own occupation, viz,, for the purpose of his business and for his residential purpose. Thus, the petitioner filed Eviction Petition in R.C.O.P.48 of 2001 under Sections 10(2)(i), 10(3)(a)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
5. The said Eviction Petition was resisted by the respondent by filing a counter affidavit stating that the respondent having paid a sum of Rs.50,000/- to the petitioner, he was allowed to enjoy the building in lieu of interest, and as such, there is no arrears of rent. The building was originally granted on lease by the original owner viz., Sri Subramania Pillai @ Kolappa Pillai. At that time, the rent was fixed at the rate of Rs.10/- per month. The said Subramania Pillai @ Kolappa Pillai was the Maternal Uncle of the respondent's wife. The said Subramania Pillai @ Kolappa Pillai had no issues. The petitioner is the brother's son of the said Subramania Pillai @ Kolappa Pillai and on the demise of the said Subramania Pillai @ Kolappa Pillai, his wife Kalyani Ammal inherited the property and after the death of the said Subramania Pillai @ Kolappa Pillai, the respondent was paying the rent to Kalyani Ammal till her death. After the death of the said Kalyani Ammal, the petitioner was collecting the rent from the respondent. The petitioner had put up a room in the upstairs portion about four years back and he was collecting Rs.150/- per month towards rent for the upstairs portion. The rent for the ground floor was Rs.150/- per month. The respondent is selling cow milk and having a Lala's Sweet Stall in the ground floor and conducting Photo Studio in the upstairs portion. The respondent's son, by name S.Kumar, was assisting the respondent in his business.
6. For the entire building, i.e., for the ground floor portion and first floor portion, the petitioner was collecting a sum of Rs.400/- per month by way of rent from January 2000 onwards. In January 2000, the petitioner demanded a deposit of Rs.50,000/- from the respondent for the ground floor portion and first floor portion. The respondent agreed for the enhancement of rent to Rs.400/- per month and also paid a sum of Rs.50,000/- as advance, as demanded by the petitioner. Since the original owner, i.e., Subramania Pillai @ Kolappa Pillai, was very closely related to the respondent and due to cordial relationship, the respondent was not given any receipt for the rent paid. Similarly, the respondent maintained a close relationship and cordiality with the said Kalyani Ammal, who also did not issue any receipt for the rent paid. The petitioner sent a notice on 25.04.2001 by stating erroneous reasons, for which, a reply was given by the respondent in April 2001 itself. The averment with regard to the rent of Rs.800/- per month was denied and the payment of Rs.50,000/- is admitted. The contention with regard to the arrears of rent from 01.11.1998 to 31.05.2001 at the rate of Rs.800/- per month was denied. The water charges to the Corporation, current consumption charges and maintenance works, including fixing of iron shutter, were spent by the respondent. The respondent also got a valid license to conduct the business.
7. According to the respondent, the petitioner demanded exorbitant rent at the rate of Rs.1,500/- per month and the same having not been agreed, the petitioner refused to receive the rent for the Month of March 2001. The respondent sent a demand draft for a sum of Rs.800/- towards rent for the months of March and April 2001, along with a reply notice dated 04.05.2001 and the same was received by the petitioner, and therefore, according to the respondent, there is no arrears of rent. The averment with regard to the demise of the first floor portion for residential purpose is denied and also stated that the petitioner is owning number of buildings within the limit of Tirunelveli Corporation. There is no bona fide on the part of the petitioner in seeking the demised building for his own occupation for residential purpose as well as for business purpose. Only because the petitioner's request to pay the enhanced rent was not complied with by the respondent, the petitioner has chosen to file the Eviction Petition.
8. The learned Rent Controller came to the conclusion that there is wilful default on the part of the respondent/tenant and that the petitioner/landlord agreed for enhancement of rent to Rs.400/- per month, for ground floor portion and first floor portion and also received a sum of Rs.50,000/- towards advance. It is also the finding of the learned Rent Controller that two months rent was sent by Demand Draft by the respondent, and thereafter, the rent was not paid, and as such, there is wilful default. If really the landlord refused to receive the rent from March 2001 onwards, it could have been sent by the Demand Draft or Money Order. Insofar as the other ground, i.e., own occupation is concerned, the learned Rent Controller found that the schedule building is bona fidely required by the landlord for the purpose of own occupation for residential and for his business, since he has no building on his own for the purpose of doing milk vending business. The learned Rent Controller ordered eviction of the respondent by giving two months time.
9. As against the said Order of eviction, the respondent herein filed R.C.A.No.12 of 2003, on the file of the learned Rent Control Appellate Authority (Principal Subordinate Judge), Tirunelveli, which was allowed by the learned Rent Control Appellate Authority, by order dated 08.04.2004, holding that the amount of Rs.50,000/- paid as advance and permission given to the respondent to reside in the premises in consideration of the interest was not considered by the learned Rent Controller, and therefore, there is no default. The Rent Control Appellate Authority held that the respondent's money to the tune of Rs.50,000/- is with the petitioner/landlord and the said amount is yet to be returned and the monthly rent of Rs.400/- was sent through Money Order, which was proved through Ex-R-3 and the remaining amount of Rs.400/- per month even though to be treated as an admitted rent, since the amount of Rs.50,000/- was not returned and the interest was adjusted towards rent, there is no default in payment of rent. The learned Rent Control Appellate Authority also held that the landlord has not proved the monthly rent as Rs.800/- and if really the monthly rent was Rs.800/-, the landlord ought not to have received the Money Order sent at the rate of Rs.400/- per month.
10. Insofar as the requirement of own occupation is concerned, the landlord was having a building of his own for residential purpose and he is doing milk vending business in a rented building at Door No.358, West Car Street, belonged to the Karpagavinayakar Temple. Since there is a residential house of his own to the landlord, there is no requirement of the demised building for residential purpose. The learned Rent Control Appellate Authority also held that since the landlord is having rented premises for doing his premises, there is no requirement to get the demised building for business purpose also, and therefore, there is no bona fide on the part of the landlord in seeking the demised premises for his own occupation.
11. Since the Rent Control Appeal filed by the tenant was allowed, this Civil Revision Petition is filed by the landlord contending that the learned Rent Control Appellate Authority overlooked the specific allegation of non- payment of rent, which is substantiated by the evidence of PW-1. The learned Rent Control Appellate Authority assumed that the tenant paid a sum of Rs.50,000/- as advance, and therefore, the rent fixed as Rs.400/- was not correct. Ex-B-3 produced by way of additional evidence is in respect of the receipts for the period from April 2003 to December 2003 paid during the pendency of the appeal, and as such, there is wilful default in payment of rent and the building, which was required for the landlord on the ground of own use for non-residential purpose, was not considered properly, as the landlord is admittedly running his business in a rented premises.
12. The learned counsel for the petitioner argued that the learned Rent Control Appellate Authority ought not to have set aside the order of the learned Rent Controller in ordering eviction on both grounds, particularly, when the tenant has not positively proved the payment of rent and even assuming that the landlord is having a building of his own for residential purpose, he having a business of his own is required to have a building for his business purpose. The learned counsel also submitted that even assuming that the rent is Rs.400/- per month, it was paid only upto January 2000 and from April 2003 to December 2003, and not for the entire period and as such, there is wilful default in paying the rent.
13. The learned counsel for the respondent, on the other hand, submitted that the landlord having received a sum of Rs.50,000/- as advance and the amount having not been returned, even assuming that there is arrears of rent, the non- payment of the rent cannot be treated as wilful default. The learned counsel also submitted that the rent sent by the respondent through Money Order was accepted without any demur and if really the actual rent was not paid, the Money Order could have been returned, and therefore, there is no justification on the part of the petitioner to contend that there is wilful default in payment of rent. The learned counsel further submitted that the ground of eviction for his own use is not established, as admittedly, the landlord was having residential building and he is having a rented building for doing his business with less rent, and therefore, there is no bona fide on the part of the landlord in seeking eviction.
14. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
15. Insofar as the ground seeking eviction under wilful default is concerned, both the Courts have concurrently found that the tenant paid a sum of Rs.50,000/- towards advance and the same is not returned to the tenant till date. As rightly held by the learned Rent Control Appellate Authority, the tenant paid rent at the rate of Rs.400/- from April 2003 to December 2003 and also upto January 2000 at the rate of Rs.400/- per month. No protest was made by the landlord with regard to the payment of rent at the rate of Rs.400/- per month paid by the tenant at any point of time. Since there is a presumption in favour of the tenant to the effect that due to the huge amount of advance paid, a lesser amount of rent was fixed and since the petitioner is retaining the huge amount of advance, even if some arrears of rent is payable by the tenant, the same cannot be treated as wilful default in payment of rent. Therefore, the learned Rent Control Appellate Authority was right in holding that the landlord has not established the ground of eviction on the ground of wilful default. It is also found that no notice demanding arrears of rent was issued by the landlord. In the deposition given by the landlord, the receipt of rent by Money Order is admitted. Thus, the finding regarding the wilful default held against the landlord is confirmed.
16. Insofar as the ground with regard to requirement of the demised premises for own use by the landlord is concerned, in the petition for eviction, in paragraph 8, the petitioner clearly stated that the building is required for his business and he is not in occupation of any of his building for the purpose of his business. In the deposition also, the petitioner clearly stated that the building is required for his own business. The respondent herein as R1 deposed that the petitioner is doing milk vending business in the building owned by the Temple. The learned Rent Control Appellate Authority is right in holding that the landlord is having a building of his own for his residential purpose, and therefore, the demised premises is not required for his residential use. However, admittedly, the landlord is doing milk vending business in nearby area, which is a rented premises owned by the Temple. The said fact of doing business of milk vending, having not been denied or disproved and in fact admitted by the tenant himself, the landlord is entitled to seek eviction for his own use, since in the Eviction Petition itself, the landlord demanded the premises on his own business and for residential purpose.
17. In the light of the above proved fact of requirement, to have the building for his own business purpose, the learned Rent Control Appellate Authority is not justified in allowing the appeal on the said ground.
18. (a) In S.V.Janardanam and another v. D.Kivraj Sowkar and two others reported in 2002 2 LW 611, similar issue as to whether the authorities under the Act have to draw a presumption in favour of the bona fide requirement of the landlord when the requirement is proved in the absence of malice was considered by this Court. In paragraph 14, it is held as follows:-
"It is now well settled that when an application is filed under Section 10(3)(a)(i) and 10(3)(a)(iii) and the requirements of the provisions are satisfied, it is not for the tenant to say that the property is suitable or not suitable to the petitioners' requirement. Further, when the landlord who owns the property filed an application under Sections 10(3)(a)(i) and 10(3)(a)(iii), the authorities under the Rent Control Act have to draw a presumption in favour of the bona fide requirement of the landlord. When such being the legal position and particularly, when the requirement of the Section has clearly been made out in the petition, which has been corroborated by the oral testimony of P.Ws.1 and 2 and also further innocuously admitted in the evidence of R.W.1 to the effect that the petitioners are doing their business in a rented premises along with their father for the past ten years and they are having experience in doing business and they have purchased the property, they are not owning any other property of either nature, I am of the considered view that the requirement is only a bona fide requirement. The word "mala fide" is not a meaningless jargon. It has its own connotations. The mala fide intention has to be gathered from the entire reading of the petition as well as the evidence adduced in support of the case of petitioners. If so gathered as stated above, it has to be concluded that the requirement of the petitioners is bona fide".
(b). In Sait Nagjee Purushotham & CO, Ltd v. Vimalabai Prabhulal reported in 2005 (8) SCC 252, the Hon'ble Supreme Court held that it is always a prerogative of the landlord that if he requires premises in question for his bona fide use for expansion of business, there is no ground to say that the landlords are already having their business elsewhere, and therefore, it is not a genuine need. It is further held that it is not the tenant who can dictate terms to the landlord and advise him what he should do and what he should not. It is always a privilege of the landlord to choose the nature of the business and the place of business.
(c). In Varadhan v. Kannammal reported in 2004 (3) CTC 462, this Court held, whether the premise is not spacious enough to meet the requirement of the landlord for running the hotel business or not is not a ground to suspect the bona fide on the part of the landlord as held in R.Srinivasan and another v. K.S.Muthukumar and Sons reportd in 1996 TLNJ 364.
(d). In Hameedia Hardware Stores v. B.Mohan Lal Sowear reported in AIR 1988 SC 1060, the Hon'ble Supreme Court held that once the bona fide requirement of the landlord is proved, he is entitled to get the tenant evicted under Section (10)3(a)(iii) of the Act. In paragraph 13, the Hon'ble Supreme Court held as follows:-
We are of the view that by merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which section 10(3)(a)(iii) appears get a tenant evicted. He must show in view of clause (e) of section 10(3) that his claim is bona fide. The word 'claim' means "a demand for something as due" or "to seek or ask or for on the ground of right" etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on 400 the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement or need. The word 'claim' in clause (e) of section 10(3) of the Act should, therefore, be construed as 'the requirement' of the landlord or his deservedness. 'Deserve' means 'to have a rightful claim' or 'a just claim'. Since clause (e) of section 10(3) of the Act is also applicable to a petition filed under sub-clause (iii) of section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in section 10(3)(a)(iii) of the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non- residential building of the category mentioned in section 10(3)(a)(iii) and to achieve his aim fakes to start money-lending business (for which indeed no specified separate portion in a building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non - residential building of his own in his occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid sub-clause
(iii) are fulfilled. If the requirement of "claim" being "bona fide" as contained in section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstances that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secure. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is the object of enacting clause (e) of section 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family as held by this Court in Phiroze Bamanji Desai v. Chandrakant M. Patel & Ors., [1974] 3 S.C.R. 267 and Mattulal v. Radhe Lal, [1975] 1 S.C.R. 127. The learned Judge who decided the case out of which this appeal arises was, therefore, in error in holding that the landlord need not prove that his requirement was bona fide but that his claim was bona fide as provided in clause (e) of section 10(3) of the 401 Act. The learned Judge has made a distinction between 'requirement' and `claim' in the present case without there being a difference".
(e). In Punnoose P.M. v. K.M.Munneruddin reported in 2003 (3) CTC 348, the Hon'ble Supreme Court held that once the finding of the Appellate Authority is found incorrect, the High Court, exercising jurisdiction of revision under Section 25 of the Act, can set aside the same, since the said power is not narrow, as one under Section 115 of Civil Procedure Code.
(f). The choice of the landlord to choose the building for doing his business and it is not for the tenant to dictate terms as to how the landlord should choose building for non-residential purpose was considered by this Court in the decision of Kishore, B v. D.Maragathavalli reported in 2007 2 CTC 797. In paragraph 8, it is held as follows:-
"So far as the other non-residential portion is concerned, which is vacant, the Act does not say that if landlord owns more than one non residential building, he would be disentitled to an order of eviction. It is naturally open to the landlady to choose which building she would require for occupation of business of P.W.2. Contention of learned counsel for the Revision Petitioner that the Landlady has other portion vacant and the Landlady's Son could occupy anyone of those premises cannot be countenanced both factually and legally. According to Landlady, the other portion is insufficient to run Automobile business. Even assuming that other premises is available, choice is left to the Landlady as to which non-residential premises she should occupy and the Tenant cannot dictate terms in this matter. [emphasis added]".
19. In the light of the above decisions and having regard to the finding with regard to the requirement of the demised premises for the landlord for his own business, I am of the view that the Order passed by the learned Rent Control Appellate Authority reversing the Order passed by the learned Rent Controller is to be treated as perverse finding, warranting interference at the hands of this Court. Hence, the finding rendered by the learned Rent Control Appellate Authority insofar as that issue is concerned is set aside.
20. The Civil Revision Petition is partly allowed holding that the landlord has established the grounds of eviction under Section 10(3)(a)(iii) of the Act and he is entitled to evict the tenant on that ground, though not on the ground of wilful default. The tenant shall give vacant possession of the demised premises within a period of two months from the date of receipt of a copy of this Order.
CRP.(NPD)(MD).No.50 of 2006:-
21. This Civil Revision Petition is filed by the Landlord challenging the Order dated 19.10.2005 made in R.C.A.No.63 of 2004, on the file of the Rent Control Appellate Authority (Second Additional Sub Court), Tirunelveli, modifying the Order dated 11.12.2003 made in R.C.O.P.No.46 of 2001, on the file of the Rent Controller (First Additional District Munsif Court), Tirunelveli.
22. The landlord, who is the petitioner in CRP.(NPD)(MD).No.139 of 2004, filed application to fix the fair rent of the demised building. The learned Rent Controller fixed the rent as Rs.800/- per month. The said fixation of rent at the rate of Rs.800/- was modified by the learned Rent Control Appellate Authority and fixed the rent at the rate of Rs.400/- per month.
23. In C.R.P.No.139 of 2004, the finding with regard to the rent of the building at the rate of Rs.400/- was found correct, in view of the huge amount of advance paid, i.e., Rs.50,000/- by the tenant. Since the said finding, which is confirmed in the above Civil Revision Petition, fixing the fair rent at the rate of Rs.400/- by the learned Rent Control Appellate Authority, is just and proper, I hold, there is no perversity in the said finding, warranting interference. The Order passed by the learned Rent Control Appellate Authority in RCA.No.63 of 2004 dated 19.10.2005 is confirmed and this Civil Revision Petition is dismissed. No costs.
NB To
1.The Rent Control Appellate Authority (Principal Subordinate Judge), Tirunelveli.
2.The Second Additional Rent Controller, (Second Additional District Munsif Court), Tirunelveli.
3.The First Additional Rent Controller, (First Additional District Munsif Court), Tirunelveli.