M.S.Abdul Raheem v. Precious Carrying Corporation (P) Limited & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.06.2012CORAM:THE HONOURABLE MR.JUSTICE R.S.RAMANATHANC.R.P.No.2131 of 2008 1.M/s. M.S.Abdul Raheem2.Mohideen Abdul Khader3.Mrs.M.S.Ameen Ammal.. Revision Petitioners/ Landlord Vs.1.M/s Precious Carrying Corporation (P) Limited,No.103 Armenian Street, Chennai – 1.2.M/s Eagle Transport (Madras) Limited,15 Armenian Street,Chennai – 1. .. Respondents/TenantsCivil Revision Petition is filed under Section 25 of the TamilNadu Building (Lease & Rent Control) Act to set aside the decree andjudgment dated 06.02.2008 in R.C.A.No.348 of 2005 passed by theLearned Appellate Authority namely VIII Judge, Small Causes Court,Chennai confirming the order and decree dated 4.2.2005 made inR.C.O.P.No.1680 of 2003 passed by the Learned XIV Judge Small CausesCourt, Chennai and allow the Civil Revision Petition and ordereviction of the respondents herein. For petitioners : Mr.P.Wilson, Senior Counsel for Mr.J. KannanFor Respondents : Mr.R.Bharath Kumar ORDERThe Revision Petitioners are the landlords. The RevisionPetitioners filed the above petition for eviction of the respondentson the ground of owners occupation and Act of Waste. 2. The case of the revision petitioners / landlords was thatthey purchased the property under a registered Sale Deed, dated05.02.1999 with an intention of utilizing the property for thebusiness purpose of the 2nd petitioner and son of the 1st and 3rdpetitioners and Thiru.Mohideen Abdul Khader, who is the son of the https://hcservices.ecourts.gov.in/hcservices/ 1st and 3rd petitioners is carrying on business under the name andstyle of "Kanmani Departmental Stores" in a rental premises at SevenWells, Chennai – 1 and they want to do business in the premisesbelonging to them and therefore, a notice was issued on 04.01.2001calling upon the respondents to vacate and hand over vacantpossession for owners occupation of the premises by the petitionersand even after that, the respondents did not vacate and therespondents have also committed act of Waste by demolishing the sunshade and also the load bearing walls and therefore, the respondentsare liable to be evicted.3. The respondents / tenants contested the petition statingthat the petition is barred under Section 19 of the Tamil NaduBuildings (Lease & Rent Control) Act 1960 (hereinafter referred to as"the act") and the petitioners / landlords filed RCOP.No.593 of 2001against the respondents / tenants for eviction under the same groundand that petition was allowed to be dismissed for default andthereafter, an application was filed to restore the eviction petitionand that was also allowed to be dismissed for default and hence thepresent petition filed under the same ground is barred under Section19 of the Act. There is no bonafide on the part of thepetitioners / landlords and the son of the petitioners 1 and 3 isdoing business in a small portion and he does not require a largeextent, for his business and the petition was filed only with a viewto evict the respondents / tenants. Both the Rent Controller andAppellate Authority held that the present petition for eviction isbarred under Section 19 of the Act as the earlier petition inRCOP.No.593 of 2001 was allowed to be dismissed for default and thereis no bonafide on the part of the petitioners / landlords. Hencethis revision is filed. 4. Mr.Wilson, learned senior counsel appearing for thepetitioners/landlords submitted that the Courts below erroneouslyheld that the present application for eviction is barred underSection 19 of the Act and the earlier petition in RCOP.No.593 of 2001was dismissed for default and no issues were settled or decided inthe earlier application and hence Section 19 of the Act will not beapplicable. He further contended that the petitioners/landlords haveproved the bonafide and admittedly the son of the petitioners 1 and 3is doing business in a rental premises which is situated 50 metersaway and they have purchased the premises for the purpose of doingbusiness in their own premises and when the petitioners/landlordsrequire the premises for the business of their son and when thepetitioners / landlords do not have any other premises of their ownin the locality and when the intention of the landlords is bonafide,eviction ought to have been ordered and without appreciating theprinciples, the Courts below erred in holding that there is nobonafide on the part of the petitioners/landlords. https://hcservices.ecourts.gov.in/hcservices/

5. On the other hand, the learned counsel appearing for therespondents/tenants submitted that both the Courts below have rightlyheld that the present petition is barred under Section 19 of the Actand there is no change of pleadings in RCOP.No.1680 of 2003, and inboth the RCOPs' the pleadings are identical ( RCOP.Nos.593 of 2001and 1680 of 2003) and earlier RCOP.No.593 of 2001 was dismissed fordefault and the petition filed to restore the same was also dismissedand that has become final. Therefore, the present petition inRCOP.No.1680 of 2003 is clearly barred under Section 19 of the Actand that was rightly considered by the Courts below and held againstthe revision petitioners / landlords. He further submitted thatadmittedly, the son of the petitioners 1 and 3 is doing business in asmall area and the petitioners' property is having larger extent andno evidence has been let in to prove the nature of business, the sonof the petitioners 1 and 3 is doing business in a rental premises andwhen he wanted the petition premises for doing business he has tomake preparation for that and in the absence of such particulars, itcannot be stated that the petitioners bonafide require the petitionpremises and considering all these aspects, the Courts below haverightly dismissed the petitions. 6. Heard both sides.7. In this revision, we have to find out whether the presentpetition in RCOP.No.1680 of 2003 filed by the petitioners / landlordsfor eviction is barred under Section 19 of the Act by the reason ofthe dismissal of the earlier RCOP.No.593 of 2001 filed by thepetitioners against the respondents and whether the requirement ofthe petitioners is bonafide. 8. Admittedly RCOP.No.593 of 2001 was filed by the petitionersfor eviction on the ground of owners occupation and Act of Waste andthat application was allowed to be dismissed for non prosecution andan application filed in M.P.No.567 of 2003 to restore the rentcontrol application was also dismissed. Therefore, we have to seewhether the present petition in RCOP.No.1680 of 2003 is barred underSection 19 of the Act. Section 19 of the Tamil Nadu Buildings Leaseand Rent Control Act which reads as follows:" Any application under Section 3A orSection 12, and any application under sub-section (2) or sub-section(3) or sub-section (3-A) of S.10 or under Sections 14,15 or 16, shallbe summarily rejected by the Authorized Officeror the Controller, as the case may be, if suchapplication) raises between the same parties orbetween parties under whom they or any of themclaim, substantially the same issues as havebeen finally decided or as purport to have beenfinally decided, in a former proceeding. https://hcservices.ecourts.gov.in/hcservices/ (i) under Act, or(ii) under any other law from time to time inforce before the date of the commencementof this Act and relating to matters dealtwith in this Act."Therefore, if the earlier petition was between the same partiesand the issues in both the petitions were similar and all the issueswere finally decided in the former proceedings, the above provisionwill be attracted. In this case, the parties in RCOP.No.593 of2001 and RCOP.No.1680 of 2003 are one and the same and the groundsfor eviction in both the petitions are also same and the pleadingsare also exactly the same. Nevertheless, the present applicationcannot be stated to be barred under Section 19 of the Act as theissues were not finally decided in the former proceedings andRCOP.No.593 of 2001 was dismissed for non prosecution. Hence, itcannot be stated that the present application for eviction namelyRCOP.No.1680 of 2003 is barred under Section 19 of the Act as rightlycontended by the learned senior counsel for the petitioners. In thejudgment reported in (1949) 2 MLJ page 594, a Division Bench of thisCourt, it is held that without adjudication on the merits, an issuecannot be said to have been finally decided, so as to get barred andthe subsequent application for the same relief in maintenable. Inthe absence of any provision similar to the provision Order IX Rule 9of CPC, it cannot be said that there is a general Rule of procedure,according to which, once a suit filed by the petitioner is dismissedfor default for non appearance of the plaintiff / petitioner,subsequent suit was not to be entertained for the same relief basedon the same cause of action. The above judgment was rendered withreference to the Madras Building (Lease Rent Control) Act (XV of1946) Section 10 of the said Act (XV of 1946) similar to Section 19and therefore, as per the above judgment, the present application isnot barred under section 19 of the Act, since the issues were notfinally decided in the former proceedings. In the judgment reportedin 2009 (1) SCC 689,(State of Uttar Pradesh and another Vs. JagdishSharan Agrawal and others) the Hon'ble Supreme Court, wherein thescope of order IX Rule 9 was considered and held that when the suitwas dismissed for non prosecution it was not passed on merit and thatorder cannot operate as resjudicata. Similarly in the judgmentreported in 1993 (1) MLJ 60, (Baliah Nadar and another Vs. Rayappanand others) a Single Bench of this Court, the same principles arelaid down. Therefore, having regard to the above judgments, theCourts below erred in holding that the present application is barredunder Section 19 of the Act.9. The petitioners/landlords filed applications for eviction onthe ground of owners occupation and act of waste both the Courtsbelow have dismissed the petition on the ground that there is nobonafide on the part of the petitioners requirement and as a matter https://hcservices.ecourts.gov.in/hcservices/ of fact the learned counsel for the petitioners/landlords also didnot press the relief of eviction on the ground of act of waste.Nevertheless, the learned counsel for the petitioners submitted thatthe Courts below erred in dismissing the application that there is nobonafide requirement of the petitioners/landlords and there is noproof for the Act of Waste.10. Admittedly the son of the petitioners 1 and 3 is doingbusiness in a rental premises in a nearby area and it is the case ofthe petitioners that the 2nd petitioner and the son of the petitioners1 and 3 are doing business in a rented premises and they purchasedthe building only for the purpose of doing business in their ownpremises. On the petitioners side P.W.1 and P.W.2 were examined andgave evidence about their requirement. When petitioners/landlordsfiled an application for eviction on the basis of owners occupationin respect of non residential premises, they have to prove thefollowing ingredients:-(i) The Building is a non residential one.(ii)They have no other non residential building of their ownexcept the tenanted premises.(iii)They are already doing business or have made preparation forstarting business.(iv)Their requirement is bonafide.11. It is not the case of the respondents that the landlordshave any other building of their own in the locality. It is alsoadmitted that the tenanted building is a non residential incharacter and the son of the petitioners/landlords namely petitioners1 and 3 is admittedly doing business in a rental premises in thenearby area. Therefore, the first three ingredients stated above aresatisfied. The Courts below dismissed the application holding thatno proof was adduced by the petitioners/landlords that they havetaken steps to commence business in the scheduled property, andadmittedly the son of the petitioners 1and 3 is having business in asmaller area and therefore, there is no bonafide. According to me,the approach of the Courts below is erroneous and perverse. The lawrequires that the petitioners/landlords must be carrying on businessand they require the premises for doing business. Even assuming thatthe son of the petitioners/landlords is doing business in a smallerextent, no law prohibits a person from expanding his business in alarger area and the fact the son of the revisionpetitioners/landlords 1 and 3 is doing business in the nearby areawould also prove his experience and would also prove the bonafideintention of the revision petitioners/landlords. Further P.W.1 and 2have let in evidence and spoke about their bonafide requirement fortheir own business purpose. Further the Courts below erred inholding that they have not filed application immediately after thepurchase of the building and they should not have waited for someyears to file application for eviction. According to me, all the https://hcservices.ecourts.gov.in/hcservices/ above the ingredients were proved by the landlords and the Courtsbelow on erroneous consideration dismissed the application. Hence thepetitioners/landlords have proved the bonafide requirement and theyare entitled to the order of eviction. Hence, the order of theCourts below is set aside and RCOP.No.1680 of 2003 on the file of theXIV Judge, Small Causes Court, Chennai is allowed and the revision isalso allowed. The tenants/respondents are granted six months timeto vacate and hand over vacant possession, on condition of filing anaffidavit of undertaking by the Respondents / Tenants within a periodof two weeks from the date of receipt of a copy of the order,undertaking to vacate and hand over vacant possession of the petitionpremises to the revision petitioners/landlords with a period of sixmonths from the date of receipt of a copy of this order. No costs.Consequently, connected M.Ps are closed. Sd/Asst. Registrar/true copy/Sub Asst.RegistraradlTo1.The Rent Control Appellate Authority namely VIII Judge, Court of Small Causes, Chennai.2. The Rent Controller XIV Judge, Court of Small Causes, Chennai.Copy to: The Section Officer, VR Section, High Court, Madras.+ 1 cc to Mr.R. Bharath Kumar, Sr.37614CRP.No.2131 of 2008 UG(CO)Eu 24.8.12