The landlord is the revision petitioner. This Civil Revision Petition has arisen out of the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act ((herein after referred to as the Act) for eviction of the respondent/tenant from the property belonging to the petitioner on the ground of wilful default in paying the rent and owner's occupation for his sons to carry on their business.
2. The tenancy is non residential and the monthly rent is Rs.1300/- . The respondent is carrying on textile business in the petition mentioned premises. The property is measuring of an extent of 200 sq.ft. in the north eastern corner of the premises in Door No.152, South Masi Street, Madurai. The Rent Controller by order dated 31.10.2001 dismissed the eviction petition in RCOP.No.339/1996 and the same was confirmed by the Rent Control Appellate Authority by order dated 18.12.2002 in RCA.No.84/2001, which is challenged in this Civil Revision Petition by the landlord.
3. The eviction was resisted by the respondent/tenant on the ground that since the petitioner/landlord refused to receive the rent from December 1992, the respondent filed RCOP.No.147/1993 for deposit of rent and the respondent has been depositing the rent and hence, there is no wilful default.
4. Mr.R.Subramanian, the learned counsel for the petitioner would contend that though the respondent has been depositing the rent in RCOP.No.147/1993, but inasmuch as the provision under Section 8 of the Act not being strictly complied with by the respondent, mere deposit of rent cannot cure the wilful default and in order to support his contention, he relied on the decision of the Honourable Supreme Court rendered in the case of E.Palanisamy Vs. Palanisamy (D) by LRs and others [2002-4-CTC-572], wherein the Honourable Supreme Court has held that mere refusal of the landlord to receive the rent cannot justify the action of the tenant in straightaway invoking Section 8(5) of the Act without following the procedure contained in earlier sub sections.
5. In the instant case, both the court below have held that the respondent has complied with the legal requirements as provided under sub sections 2 to 4 of Section 8 of the Act before depositing the rent before the Rent Controller in RCOP.No.147/1993 and therefore, there is no wilful default. The said finding is justified by the evidence placed on record and therefore, as regards this ground, the findings of the court below are not liable to be interfered with and the same is confirmed.
6. The petitioner has two sons, who are carrying on the business under the name and style of M/s. Ganapathy Film Distributors in a rented building at Door No.24, Hanumantharayan Street, East Madurai. The petitioner bona fidely required the building in occupation of the respondent for the business of his sons and they are not owning any non residential building of their own. Though the Rent Control Appellate Authority has accepted the petitioner' case that his sons are carrying on business in a rental building, which is also evident from Exs. A3 t A14, the Rent Control Appellate Authority dismissed the petition solely on the ground that an extent of 500 sq.ft which was in possession of one Meyyappan another tenant, who vacated and handed over possession of the same to the petitioner, is sufficient for his sons' business and they cannot carry on the business in the petition mentioned premises, which is less than 500 sq.ft.
7. At this juncture, it is pertinent to point that the Rent Control Appellate Authority has accepted the contention of the petitioner that after obtaining vacant possession of another portion from another tenant Meyyappan, the petitioner effected repairs and is using the same as an additional accommodation for his family. The relevant portion from the order of the Rent Control Appellate Authority is extracted below:-
",e;epiyapy; nkw;go bka;ag;gd; vd;gthplkpUe;J fhyp bra;J RthjPdk; bgw;w fl;olj;ij nky;KiwaPl;lhsh; mtuJ FLk;g TLjy ;gad;ghl;ow;fhf gad;gLj;jp tUtjhft[k; vdnt me;j ,lj;jpy; rpdpkh bjhHp;y; bra;tjw;F nghJkhd trjp ,y;iy vdt[k; nky;KiwaPl;lhsh; jug;gpy; vLj;Jf; Twg;gl;Ls;sJ/ Mdhy; nkw;go ,lj;ijj; jw;nghJ rPuikg;g[ bra;J mjpy; nky;KiwaPl;lhshpd; FLk;gk TLjy; gad;ghl;ow;F gad;gLj;jp tUtjhf nky;KiwaPl;lhsh; vjph;nky;KiwaPl;lhsh; jug;gpYk; xg;g[f; bfhs;sg;gl;lLs;sJ"
However, ignoring the said admission, the Rent Control Appellate Authority has held that no evidence was adduced by the petitioner to prove that his family is occupying the said portion by way of additional accommodation and therefore, he has assumed that the said portion is still vacant. The Rent Control Appellate Authority has further held that an extent of 500 sq.ft. which was in occupation of another tenant Meyyappan is sufficient for the petitioner's sons and they cannot carry on the business in the petition mentioned premises, which is less than 500 sq.ft. The learned counsel for the respondent contended that this court must take into consideration of the subsequent events to show that the landlord's requirement is not real and genuine. In support of his contention, he would place reliance on the judgement reported in 1986-TNLJ-337 (B.Shaik Ameer Ali Vs. Dr.B.K.C.Mohandas Prasad and the judgement of the Apex Court reported in 1981-3-SCC-103 (Rai and another Vs. Raghunath Prasad).
8. Indisputably, the petitioner's sons are carrying on the business in the I Floor of the rental premises to an extent of about 48 sq.ft. It is the case of the petitioner that such a small extent is not sufficient for their business and aged people, who visit their Office are unable to climb the upstairs and further his sons find it difficult to travel the distance from their home to the Office. Though the respondent disputed that the sons of the petitioner were carrying on the film distribution business, but Exs.A22 to A87 evidence the fact that they are carrying on the said business in a rental premises.
9. The portion in occupation of the respondent is to an extent of 200 sq.ft. and it is the categorical case of the petitioner that the said portion with such an extent is sufficient for carrying on business for his sons, whereas the portion which was in occupation of Meyyappan was used by him for both residential and non residential purposes and the total extent is about 2000 sq.ft. The Rent Controller has found that out of 2000 sq.ft. 1300 sq.ft is vacant and the petitioner's sons can use it for their business. Both the court below have held that the extent which was in occupation of Meyyappan is more than what is required by the petitioner and as they required only an extent of 500 sq.ft, they can occupy the said portion for their business.
10. I am unable to agree with the said findings of the court below, as it is not the case of the petitioner that he requires an extent more than 500 sq.ft for his sons' business, but only required the portion in occupation of the respondent, which is measuring about 200 sq.ft, and according to him, that would suit the requirements of his sons to carry on business. The Rent Control Appellate Authority having found that the petitioner has already occupied the portion that fell vacant on account of vacation by Meyyappan, which is quite larger in extent for additional accommodation of his family, it cannot compel the petitioner's sons to carry on the business in that particular place.
11. It is held by the Honourable Supreme Court in the decision rendered in the case of V.Radhakrishnan Vs. S.N.Loganatha Mudaliar [1991-1MLJ- SC-1] that the owner can seek eviction of the tenant for the benefit of his or family members notwithstanding the fact that said owner is himself or herself occupying a building of his own for carrying on the business so long as such member of the family for whose benefit eviction is sought does not occupy any premises of his own in a City of Town.
12. In the instant case, both the ingredients of Section 10(3)a(iii) of the Act that the petitioner seek eviction for occupation of his family members and that his family members are not carrying on business in the own premises are satisfied and there is enough evidence available to prove the above said factors. In such circumstances, the court has to confine its job in identifying the bona fide claim of the landlord from the evidence adduced and not to assume certain things which are not in existence ignoring the various precedents on the issue before it. When the Rent Control Appellate Authority omits to consider the materials placed before it, this court can interfere under Section 25 of the Act to decide as to whether the authorities below approached the question from proper angle.
13. I am afraid that the reasoning of the court below that the petitioner's sons can occupy the portion of a building that was vacated by another tenant does not appeal to me to non suit the landlord. The requirement of law is that the building which has been vacated should be of such a character which would meet the requirement of the landlord and not that a building which was vacant could meet his requirements after repair/renovation etc.
14. It is by now well established by a series of decisions, which is not disputed either that it is not for the tenant to dictate as to what portion the landlord should require for his own purposes.
15. In the case of Nathella Sampathu Chetty Vs. Sha vajingjee Bapulal [1967-1-MLJ-289], the Division Bench of the Principal Bench of this court has held thus:-
"Section 10(3)(a)(iii) of the Madras Buildings Lease and Rent Control Act, 1960, allows a landlord to apply to the controller for an order directing a tenant to put him in possession of the building if the landlord is not occupying for purposes of business which he is carrying on a non residential building which is his own. If the conditions of the provisions are satisfied, the Controller may make an order as prayed for by the landlord provided he is further satisfied that the claim of the landlord is bona fide. This requirement that the claim of the landlord should be bona fide is common not only to this provision but also to several other provisions in the Act which provide for eviction of tenants. The expression bona fide, therefore will have to be understood in the context but subject to that, it means in cases under Section 10(3)(a) that the land lord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose.
That the landlord has made certain allegations or claims in some earlier proceedings may neither be relevant nor could they affect his bona fide in a later claim so long as it is provided that the landlord honestly desires to occupy the premises for carrying on his business. The fact that he owned several other buildings, which were not mentioned in the petition, is of no consequence as it is entirely open to a landlord to choose which building he would require for his business. (emphasis supplied.
So long as the evidence does not justify a finding that a claim is a device and is intended to serve an oblique purpose, it will go a long way towards the claim being honest. In other words, when once it is clear that the claim is not a device very little evidence might be required to find that the claim is an honest one."
The said view was reiterated in another decision rendered in the case of Natarajan Vs. V.M.Sundaram [1990-2-LW-595] that it is not for the tenant to say that the petition premises is neither suitable nor sufficient for the business conducted by the landlord. On identical facts, this court has held thus:- "7. The fact remains that the petitioner herein is the tenant under the respondent/ landlord. The petition premises is a non residential building. The petitioner herein is carrying on his business in the petition premises. The landlord is a graduate, who is carrying on his business in manufacturing and sale of soap. He is doing his business in a rented premises. He is not having a premises of his own other than the petition premises in the town. The landlord filed Ex.A2 to A5 and Exs.A8 to A10 to prove that he is doing soap manufacturing business. Even the tenant admitted that the landlord is doing business in soap manufacturing. The tenant contended that the petition mentioned premises is not useful for manufacturing soap. According to the evidence produced by the landlord he is manufacturing soap business as a cottage industry and not in a large scale. The landlord also stated that the petition premises is sufficient for his business. Therefore, there is satisfactory evidence on the side of the landlord to prove that he is doing his own soap manufacturing business in a rented building. Admittedly the landlord is doing soap manufacturing business after obtaining proper licence. It is not for the tenant to say that the petition premises is neither suitable nor sufficient for the business conducted by the landlord."
16. The tenant cannot say that the petitioner's sons' business could be carried on in the larger extent and the portion in his occupation is not suitable for the film distribution business on the ground that it is surrounded by shops carrying on textile business. The petition mentioned premises might be situated in an area where there are textile shops in the adjacent places, but that by itself is not sufficient for holding that it is not suitable for film distribution business. After all whether the petitioner's sons should carry on business is a matter of his choice and it is not for the court and the respondent to indicate the preference.
17. In the decision of the Principal Bench of this Court rendered in the case of S.V.Janardanam and another Vs. D.Kivraj Sowkar and two others [2002-2-LW-611], it is held that when the landlord, who owns the property filed an application under Sections 10(3)(a)(i) or 10(3)(a)(iii) of the Act, the authorities under the Act have to draw a presumption in favour of the bona fide requirements of the landlord. It is further held thus:-
"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) or 10(3)(a)(iii) of the Act, the authorities under the Act have to draw an presumption in favour of the bona fide requirement of the landlord "
It is the same view of the Honourable Supreme Court in the case of Sarla Ahuja Vs. United India Insurance Company Ltd. [1998-III-CTC-679], wherein the Honourable Supreme Court has dealt with the bona fide requirement of the landlord in paragraph 14 of the judgement and has held thus:- "14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, The Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to who else he can adjust himself without getting possession of the tenants premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to who else the landlord could have adjusted himself."
18. It is pertinent to point that in so far as the non residential building is concerned, the Act does not say that if the landlord owned more than one building, he would not be entitled to an order of eviction. It is entirely upon the petitioner/landlord to choose which building he would require for occupation for his sons to carry on their business.
19. A new plea was advanced by the learned counsel for the respondent only in this revision, during the course of the arguments that the petitioner ought to have availed the provision under Section 10(3)(a)(c) of the Act and the application filed under Section 10(3)(a)(iii) is not maintainable. He has not raised this contention before the authorities concerned. The scope of Section 10(3)(c) is different from 10(3)(a)(iii). Each sub section will come into play under different circumstances. The landlord must be in occupation if Section 10(3) (c) is to be invoked for additional accommodation. For instance, if the landlord is running a business in the I Floor and requires the ground floor for running the business, it is an additional requirement and hence, Section 10(3)(a)(c) will apply.
20. The Honourable Supreme Court in the case of Kanniammal Vs. Chellaram [2002-4-SCC-627] has held thus:-
"6. ... The phraseology employed by the legislature in framing Section 10(3)(c) and the use of non obstante clause therein make it clear that Section 10(3)(c) overrides the provisions of Sections 10(3)(a)(i)and (iii). The latter provisions i.e. Sections 10(3)(a)(i) and (iii) have two in built restrictions viz. The landlord seeking eviction of a tenant thereunder should not be occupying a building of his own, and secondly, the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord. The use of the words "requires additional accommodation", as qualifying "for residential purposes or for purposes of a business which he is carrying on" indicates that under Section 10(3)(c) the requirement for additional accommodation must be for the same purpose for which the part of the building in occupation of the landlord is being used. If a landlord is occupying only a part of a residential building he may seek ejectment of the tenant for his requirement of additional accommodation for residential purpose though the tenancy premises are being used by tenant for non residential purpose. Simiarly, a landlord who is occupying only a part of building for non residential purpose may have the tenant evicted if he requires additional accommodation for non residential purpose, it being immaterial that the tenant is occupying a part of the premises for residential purpose. Since the requirement of additional accommodation by the landlord is with reference to the manner of his user of that part of the building which is in his occupation, it is the nature of that requirement that should prevail over the manner of user of the tenant of the portion leased out to him. In other words, the need for additional accommodation is for extending the use of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used It is not the requirement of Section 10(3)(c) that the nature of the requirement of the landlord and the nature of the user of the leased portion by the tenant should coalesce."
Since the petitioner requires the building in occupation of the respondent for non residential purpose for his sons' business who carry on the business in the rental premises, definitely it would come only under Section 10(3)(a)(iii) of the Act and not under 10(3)(c) and so the contention of the learned counsel for the respondent has no merits.
21. For the above said reasons, I am of the considered view that the order of the Rent Control Appellate Authority, confirming the order of the Rent Controller is unsustainable in law and it is liable to be set aside and accordingly, it is set aside. Relief of eviction is granted in favour of the petitioner by allowing this Civil Revision Petition on the ground of owner's occupation. No costs. Considering his occupation of the premises for long years, the tenant is given two months time to vacate the premises from the date of this order on condition that he should file an affidavit of undertaking within two weeks from today to that effect, failing which the time granted to vacate the premises shall stand automatically vacated.
Srcm To:
1. The Principal Subordinate Judge, Madurai
2. The Additional District Munsif Court, Madurai Town