BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(MD)No.1396 of 2008 MP.NO.1/2008 Chinnathurai petitioner Vs 1.Pitchumani Pattar 2.Gandhimathi Respondents Prayer This Civil Revision Petition is filed against the fair and decreetal order passed in RCA.No.37/2004 dated 23.6.2008 passed by the learned Rent Control Appellate Authority (Principal Sub Court) Tirunelveli confirming the fair and decretal order in RCOP.No.9/2003 dated 8.3.2004 passed by the Rent Controller (Principal District Munsif) Tirunelveli. !For Petitioner ... Mr.S.Meenakshi Sundaram ^For Respondent ... Mr.G.Prabhu Rajadurai :ORDER
The tenant 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
petitioner from the property belongs to the respondents/landlord under Sections
10(2)(i), 10(2)(iii)(a) and 10(3)(a)(iii). The Rent Controller ordered eviction
only on the ground under Section 10(3)(a)(iii) and dismissed the petition as
regards to other two grounds.
2. The petition mentioned premises is a non residential one and the
petitioner is carrying on tailoring business in the name and style of
M/s.T.S.Tailors on a monthly rent of Rs.500/- at Door No.26, I Floor, Swami
Sannathi St, Tirunelveli Town. The petitioner committed default in payment of
rent from January 2001 to December 2002 and there is a default of Rs.12000/-.
The 1st respondent is the landlord and father of the 2nd respondent. The 2nd
respondent’s son i.e. the grandson of the 1st respondent is without any
employment and therefore, the landlord requires the petition mentioned premises
for running a xerox shop and a public STD Booth. They have taken steps to
install a xerox shop and STD Booth.
3. The petitioner/tenant resisted the claim made by the respondents
stating that the landlord refused to receive the rent in the month of June 2001
with the sole intention to get enhanced rent and that necessitated the
petitioner to send the rent through money order and when the same was refused,
the petitioner sent a notice through his lawyer to specify the bank so as to
enable the petitioner to deposit the rent and as there was no response, he took
steps to deposit the rent into the court by filing a petition in RCOP.No.91/2001
and the same is pending. So he contended that there is no default much less
willful default. It is also stated by him that the 1st respondent’s grandson is
working as an Archakar in the Swami Nellaiappar Temple, Tirunelveli. Except the
petition mentioned premises which is of an extent of 5×5 the other portions are
in the occupation of the landlord and that apart, the respondents owns a
building at Door No.33 which is a few feet away from the petition mentioned
premises and therefore, there is no bona fide in the requirement of the
respondent.
4. The 1st respondent’s grandson Sundaram has been examined as PW.1.
Ex.P1 is the catalogue and the quotation for purchase of xerox machine. Ex.P2 is
the receipt issued for the deposit made for installing a STD Booth. Ex.P3 shows
the deposit made by the landlord for starting the business. Ex.P4 is the
photograph showing the petition mentioned premises. On the side of the tenant,
the petitioner has examined himself as RW.1 and had acquired one Parameswara
Pattar as RW.2 and the Manager of Tamil daily ‘Dinamalar’ as RW.3.
5. After considering the submissions made by the both sides and in
the light of the material evidence available on record, the Rent Controller
ordered eviction only on the ground of requirement of premises for own
occupation and the same was confirmed by the Rent Control Appellate Authority.
6. The learned counsel for the petitioner contends that Sundaram,
the grandson of the respondent is employed as Archakar in Nellaippar Temple and
therefore, eviction sought for on the said ground is not bona fide. Admittedly,
there is no evidence to show that Sundaram is permanently employed as an
archakar in Nellaippar Swami Temple. Even assuming that he has participated in
some temple festival as archakar, the same would not establish that he is
permanently employed in Nellaippar Temple. Had he been employed, certainly
there would be some documents to prove the same, but no such material is
produced before the Court.
5. Apart from the petition shop, the other portion is a residential
portion and the other building which the petitioner has referred is also only a
residential building.
6. It is held by the Hon’ble Supreme Court in the decision rendered
in the case of V.Radhakrishnan Vs. S.N.Loganatha Mudaliar (1991-1-MLJ-SC-1) that
the owner can seek eviction of the tenant for the benefit of his or family
members notwithstanding the fact that the 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 the city or town.
7. In the instant case, both the ingredients of Section
10(3)(a)(iii) of the Act that the landlord seeks eviction for occupation of his
family members and that his family member is not carrying on business in the own
premises are satisfied. In such circumstances, the court has to confine its job
in identifying the bona fide claim of the landlord from the evidence adduced.
The requirement of law is that the building which has been vacated should be of
such character which could meet the requirement of the landlord and not that a
building which was vacant could meet his requirement.
8. It is now well established by a series of decisions which is not
disputed that it is not for the tenant to dictate as to what portion the
landlord should require for his own purpose.
9. 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.)
10. 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.
11. Furthermore, it is not necessary that the landlord or member of
his family has to be carrying on business at the time of filing the petition and
it is enough if it is reasonably likely to carrying on business in future. The
aforesaid view is reiterated in S.N.Vairavelu Vs. P.Sundaram (2001 (4)CTC 710
Mad.)
12. In a recent decision of this Court reported in 2009 (2) MLJ 657,
it is held that once the bona fide requirement of the premises for the landlord
for his own use is proved and the landlord has established the ground of
eviction under Section 10(3)(a)(iii) of Tamil Nadu Buildings (Lease and Rent)
Control Act, he is entitled to the eviction of the tenant on that ground.
13. For carrying on xerox business and installing S.T.D.Booth the
landlord cannot be expected to make use of the residential portion. Considering
the clinching evidence let in on the side of the respondent/landlord that the
petition premises is bona fidely required for carrying out the business of his
grandson, both the courts below have concurrently held that the requirement of
the premises is bona fide and ordered eviction under Sections 10(3)(iii) of
Tamil Nadu Buildings (Lease and
Rent) Control Act and there is no perversity in the said findings warranting
interference.
14. In the result, the Civil Revision Petition is dismissed. No
costs. Consequently, the connected MP is closed.
Srcm
To:
1.The Rent Control Appellate Authority (Principal Sub Court) Tirunelveli
2.The Rent Controller (Principal District Munsif) Tirunelveli.
After pronouncement of the order, the learned counsel for the
petitioner/tenant has requested this court to grant time for vacating the
petition premises.
Considering the said request, the petitioner/ tenant is given six months
time from the date of this order to vacate the petition premises 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.