Mr.Uamraj v. Shah Poosaji Samrathmalrep by its Kartha Champalal

THE HIGH COURT OF JUDICATURE AT MADRASDATE : 03.04.2009CORAMTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANC.R.P.(NPD).No.717 of 2006andC.M.P.No.422 of 2006Mr.Uamraj ..Revision Petitioners / Respondent / / Respondent (tenant)Vs.Shah Poosaji Samrathmalrep by its Kartha ChampalalNo.58, Perumal Mudali Street, Chennai-79.Respondent / Appellant / Petitioner (Landlord)Prayer :- This Civil Revision Petition has been preferred under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act,18/1960 as amended by Act 23/1973 & Act 1/1980, against the judgment dated 10.03.2006 in RCA.No.864 of 2000 passed by the Rent ControlAppellate Authority (VII Judge, Small Causes Court) Chennai, setting aside the order dated 7.8.2000 in RCOP.No.869 of 1998 on the file of the Rent Controller (XV Judge, Small Causes Court), Chennai. For Petitioner : Mr.G.Ramesh Kumar, AdvocateFor Respondent : Mr.V.Lakhmi Narayanan, Advocate ORDERThis Revision has been directed against the judgment inRCA.No.864 of 2000 on the file of the Court of VIIth Judge, Court of Small Causes, Chennai, which had arisen out of the order passed inRCOP.No.869 of 1998 on the file of the Court of XVth Judge, Court of Small Causes, Chennai.

The landlord / respondent herein had filed the said RCOP under Sections 10(2)(i) and 10(3)(a)(iii) of the TamilNadu Building (Lease and Rent Control) Act, (hereinafter referred toas 'the Act').2.The brief averments in the petition are that the respondent isa tenant under the petitioner / landlord in the premises bearing DoorNo.58, Perumal Mudali Street, Chennai, for a monthly rent of https://hcservices.ecourts.gov.in/hcservices/ Rs.655/-. The tenancy is for non-residential purpose. The tenant had committed default in payment of rent from 01.02.1997. Thepetitioner requires the petition scheduled building for his son who has no other place for conducting or starting new business of fancy items. Hence, the landlord / petitioner requires the building for his son's business of fancy items. The requirements of the petitioner is bonefide and genuine. 3. The tenant in his counter stated that he has not committed any wilful default in payment of the rent and that to his best of knowledge the petitioner's son is not carrying on any business and hence, the petition scheduled premises is not required for the petitioner for conducting a fancy store for his son.

4. Before the learned Rent Controller P.W.1 was examined andEx.P.1 to Ex.P.11 were marked. On the side of the respondent/tenantR.W.1 was examined and Ex.R.1 to Ex.R.10 were marked. After going through the evidence both oral and documentary the learned RentController has come to a conclusion that the landlord is not entitled to the relief asked for in the petition, had dismissed the petition. Aggrieved by the findings of the learned Rent Controller, the tenant has preferred RCA.No.864 of 2000 before the Rent Control AppellateAuthority / VIIth Judge, Court of Small Causes, Chennai. The RentControl Appellate Authority after giving due deliberations to the submissions made by the learned counsel on both sides and after going through the evidence let in before the Rent Controller and also after going through the orders of the Rent Controller, has confirmed the findings of the learned Rent Controller holding that the tenant had not committed any wilful default, but has allowed the appeal in partin respect of the findings of the learned Rent Controller under Section 10(3)(a)(iii) holding that the claim of the landlord isbonefide and that the ingredients for passing an order of eviction under Section 10(3)(a)(iii) of the Act have been made out, held that the petition scheduled premises is required for the petitioner'sson's occupation under Section 10(3)(a)(iii) of the Act passed order of eviction giving one month time to the tenant to vacate andhandover the possession to the landlord, which necessitated the tenant to approach this Court by way of this Revision.

5. Before this Court the tenant had filed M.P.No.735 of 2008 inCRP.NPD.No.717 of 2006 taking a new plea that the landlord and his son became entitled to a share in Door No.65, Perumal Mudali Street, Chennai, which was purchased by the petitioner's / landlord's wifealongwith three others and that pending RCA she died and hence, the both the petitioner and his son are entitled to inherit the said property and they are co-owners and entitled to 1/8 share each in the said property. To show the physical features of the property at request of the learned counsel for the revision petitioner, aCommissioner was appointed, who had visited the property and filed https://hcservices.ecourts.gov.in/hcservices/ her report and plan. The photographs enclosed with the Commission'sreport will go to show that the building in Door No.65, PerumalMudali Street, Chennai, is only under construction and the same is lying vacant.

Even though the petitioner / landlord and his son are entitled to any share in Door No.65, Perumal Mudali Street, Chennai, it is to be proved that either the landlord or his son is inoccupation of Door NO.65, Perumal Mudali Street, Chennai, to cliamthat the landlord is not entited to get an order of eviction under Section 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii) of the Actreads as follows:-Section 10(3)(a)(iii) :- in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which heor any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own; "The learned counsel for the respondent relying on a Judgment of this Court in 1990(2) LW 289 (M/s.Shapoorji Pollanji & Company (P) Ltd.,Salem and antoher Vs. A.Nishar and another), would contend that unless and untill the tenant proves that the landlord or his son isin occupation of any other non-residential building or any residential building he is not entitled to say that the landlord is not entitled to get an order of eviction under Section 10(3)(a)(iii)of the Act.

The relevant observation in the said Judgment runs as follows:-"There is no dispute that the mother of the respondents owned under Ex.A.3 the premises dealt with thereunder and that she had died. On her death, it is not in dispute, the respondents herein, their two sisters and their father became entitled to fractional interest in that property in accordance with the personal law governing them. It has been repeatedly held by a series of decisions of this Courtthat the owning or possessing of fractional interest in apremises, cannot be equated to the occupation of aresidential building of their own in the city, town or village concerned within the meaning of Section 10(3)(a)(i)of the Act. It would suffice in this connection to refer to Bghava .H.K. Vs. N.T.Rahmathunissa (99 Lw 865), where it has been laid down that on the mere fact that the landlord is entitled to a fractional share, his claim for own occupation cannot be negatived under Section 10(3)(a)(i) of the Act.

This is also reiterated in Anandan Vs. K.R.LakshmananChettiar (88 LW 999), where it has been pointed out that the words 'of his own' occurring in Section 10(3)(a)(i) of the Act meant that the premises must belong exclusively to the landlord and that, where the landlord owns and occupies premises of which he is a co-sharer, he can not be said tobe in occupation of premises 'of his own'. On the facts of this case, this principle would stand attracted and the mere https://hcservices.ecourts.gov.in/hcservices/ possession or occupation by the respondents of a fractional share in the premises belonging to their deceased mother, cannot deprive them of the right to claim an order for eviction against the petitions under Section 10(3)(a)(i) of the Act. "Only difference between the facts of the above said ratio and the fact of the case on hand is that in the said ratio the landlord had filed the petitioner under Section 10(3)(a)(i) of the Act ie., for residential building, but in the present case the landlord had filed the petition under section 10(3)(a)(iii) for non-residential purpose.

The revision petitioner has not raised the plea that the landlord and his son are having interest in Door No.65, Perumal Mudali Street, Chennai, either before the Rent Controller or before the Rent ControlAppellate Authority. It is admitted that while RCA was pending before the Rent Control Appellate Authority the wife of the landlord died and even thereafter the tenant had not raised the plea which he has raied before this Court as to the fact that under the sale deed the landlord's wife had purchased the property under Door No.65,Perumal Mudali Street, Chennai, along with 3 others and that the landlord and his son are co-sharers. 6. Now the point is not whether the landlord and his son are entitled to any share in Door No.65, Perumal Mudali Street, Chennai, or not, but the point is whether the landlord or his son is inoccupation of any of the non-residential portion in Door No.65,Perumal Mudali Street, Chennai, after the demise of the wife of the landlord.

As held in 1990(2) LW 289 (M/s.Shapoorji Pollanji &Company (P) Ltd., , Salem and another Vs. A.Nishar and another) the mere fact that the petitioner and his son are having a share in DoorNo.65, Perumal Mudali Street, Chennai, will not deprive them from getting an order of eviction against the tenant under Section 10(3)(a)(iii) of the Act. 7. The learned counsel for the respondent would contend that no elaborate preparation is necessary for starting a fancy store for the son of the landlord. It is admitted that the landlord was doing fancy business upto 1962 and it is in evidence that his son was assisting his uncle in his business at Bangalore upto to the year1993 and thereafter, came down to Madras and he is unemployed till date. Relying on a ratio in 1990 TNLJ 138 (Krishnasamy Naicker Vs.C.Veerabahu Pillai and two others), the learned counsel for the respondent would contend that for starting a fancy store business in the petition scheduled building, no elaborate preparation is necessary.

Reliance has been placed on the following observation in the said judgment:-"There is no dispute that the business in respect of the carrying on of which the petitioner requires the premises in the occupation of the respondents is commission https://hcservices.ecourts.gov.in/hcservices/ business. Ordinarily, no elaborate preparations are necessary for the setting up or the establishment of such abusiness. Essentially, the commission business is only bringing the buyer and the seller together and earning acommission either from one or both the parties so brought together. It is in evidence (vide Exhibit A-15) that thefather-in-law of the petitioner had been carrying on commission business and he had also been assessed to income-tax. The evidence of P.W.1 further discloses that for some years past, his father-in-law had discontinued the business and moved to another place. In the course of his evidence,P.W.1 has also stated that he is also desirous of starting the commission business originally conducted by his father-in-law.

With reference to his, a careful consideration of the evidence of R.W.1 does not establish that the desire ofP.W.1 to commence the business has not been made out. Indeed, R.W.1 had not even refuted in acceptable terms the claim of P.W.1 that the premises is required for the purpose of commencing commission business. Taking into account the nature of the business proposed to be carried on by the petitioner in the premises, no elaborate preparations as such would be necessary. A name-board, a table and perhapsa chair would be more than adequate to carry on the business and to secure this, no elaborate preparations also are necessary. The evidence clearly establishes that if the petitioner requires investment of funds, he has the wherewithal to invest the funds for the purpose of that business. Considering the nature of the business activities to be carried on in the premises, no elaborate preparationas such would be necessary.

"8. To point out that unless it is not proved by the tenant that the landlord is in occupation of another non-residential building, he cannot contend that the landlord is not entitled to get an order of eviction under Section 10(3)(a)(iii) of the Act, the learned counselfor the respondent would rely on a ratio decidendi in 1990(1) LW 582(M.K.Abdur Rashed Sahib Vs. A.R.Rahimunnissa Begum), wherein the relevant observation runs as follows:-"In Kannan A.S. Vs. S.C.M.Zackeriya (100 LW 213),referred to above, this court observed as follows:- "ThisCourt has uniformly held that when the premises are sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the premises are required who should not occupy premises of his or of her own. The fact that the landlord occupies premises of his own would not disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own. " https://hcservices.ecourts.gov.in/hcservices/

The learned counsel for the revision petitioner would contend that the landlord on the same ground of owner's occupation had filedRCOP.No.1224 of 1996 and the same was dismissed by the learned RentController. The said RCOP was dismissed because in the cross-examination P.W.1/landlord had admitted that there were four residential portions in the petition scheduled property inRCOP.No.1224 of 1996 and out of them he was residing at fourth floor and the 2nd & 3rd floors were rented out and there were 12 tenants in the said premises. Against the order passed in RCOP.No.1224 of1996, the landlord had preferred RCA.No.663 of 1997. Against the order passed in RCA.No.663 of 1997, CRP.NPD.No.3492 of 2001 was filed before this Court. While allowing the CRP.NPD.No.3492 of 2001 this Court has observed that bonefide requirement of the premises was not proved by the landlord. The learned counsel for the revision petitioner relying on AIR 1988 SC 1060 Hameedia Hardware Stores Vs.B.Mohan Lal Sowcar) would contend that since an earlier application filed by the landlord for eviction on the ground of owner'soccupation was dismissed by this Court, the present petition for eviction under Section 10(3)(a)(iii) of the Act filed by the landlordis not bonafide.

The learned counsel for the revision petitioner relying on1997(2) MLJ 278 [Fakir Mohideen Vs. Habibunnissa (dies) and others]would contend that the landlord who had filed the petition under section 10(3)(a)(iii) of the Act should not own a building of his own either residential or non-residential in the said city, town or village and that the subsequent event is to be taken into consideration ie., after the death of the petitioner's wife both thepetitioner/landlord and his son have become co-sharers of Door No.65,Perumal Mudali Street, Chennai. As I have observed earlier there isno evidence on record to show that neither the petitioner nor his son is in occupation of any portion of the said non-residential building bearing Door No.65, Perumal Mudali Street, Chennai. Under such circumstances, it cannot be said that the landlord is not entitled toget an order of eviction under Section 10(3)(a)(iii) of the Act.

The learned counsel for the respondent would contend that since the landlord and his son have become co-onwer of the building bearing Door No.65, Perumal Mudali Street, Chennai, due to the death of the wife of the landlord / petitioner will not confer unduebonafide to the tenant. In support of this contention the learned counsel for the respondent relied on 2006(3) KLT 284 (PremaRamakrishnan Vs. Salmath). Further, the learned counsel for the respondent would contend that even though the landlord and his son are entitled to a share in Door No.65, Perumal Mudali Street, Chennai, they cannot be forced to occupy the said premises alongwiththe other undivided co-sharers. In support of this contention the https://hcservices.ecourts.gov.in/hcservices/ learned counsel would rely on a decision in 2007(4) MLJ 388 (JulietaAntonieta Tarcato Vs. Suleiman Ismail), wherein it has been held as follows:-"In a suit for eviction for bonafide personal need of landlord, landlord cannot be compelled to share accommodation in another premises.