IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P. (NPD) No.2699 of 2009 and M.P.No.1 of 2009 1. A.Ramesh 2. A.Jayanthilal ... Petitioners vs. P.Kalyani ... Respondent Civil Revision Petition under Article 227 of the Constitution of India against the Decree and Judgment in R.C.A.No.761 of 2007 on the file of the VII Judge, Court of Small Causes at Chennai dated 22.07.2009 and confirming the Decree and Judgment of the Learned XIV Judge, Court of Small Causes at Chennai in R.C.O.P.No.1991 of 2006 dated 01.11.2007. For Petitioners : Mr.N.Thiyagarajan Senior Counsel for M/s.N.RajaSenthoorpandian For Respondent : Mrs.Tamizhselvi for M/s.P.Devadas Associates O R D E R
The Petitioners/Appellants/Respondents have projected this Civil Revision Petition as against the Judgment dated 22.07.2009 in R.C.A.No.761 of 2007 passed by the Learned VII Judge, Court of Small Causes, Chennai.
2. The Learned Appellate Authority viz., the VII Judge, Court of Small Causes while passing orders in R.C.A.No.761 of 2007 has among other things observed that ‘the requirement of the Respondent/Landlady for occupation of her second son is a bonafide one and that she has established the ingredients of Section 10(3)(a)(iii) of the Act and resultantly, dismissed the Appeal without costs.’
3. Dissatisfied with the Judgment dated 22.07.2009 in R.C.A.No.761 of 2007 passed by the Learned Appellate Authority viz., VII Judge, Court of Small Causes, Chennai, the Civil Revision petitioners/Appellants/Tenants have filed this Civil Revision Petition before this Court.
4. According to the Learned Senior Counsel for the Revision Petitioners/Appellants, the Judgment of the Learned Appellate Authority in R.C.A.No.761 of 2007 dated 22.07.2009 is against the Law, weight of both oral and documentary evidence and probabilities of the case and further both the Authorities have failed to appreciate the fact that the Respondent/Landlady has not approached this Court with clean hands inasmuch as the Eviction Petition filed by the Respondent/Landlady lacks bonafide and the same has been filed with malafide and evil intentions to evict the Revision Petitioners/Tenants by hook and crook.
5. Added further, it is the contention of the Learned Counsel for the Petitioners that both the Authorities have failed to take note of the fact whether R.C.O.P.No.1991 of 2006 dated 01.11.2007 is maintainable as per Section 10(3)(a)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act 1960.
6. Expatiating his arguments, the Learned Senior Counsel for the Revision Petitioners submits that the Respondent/Landlady has agreed to continue with the tenancy of the Revision Petitioners for a further period of two years and she has been ready to enter into a Memorandum of Understanding in this regard and therefore, the immediate requirement of the premises for own occupation and the relevant preparation of the Respondent/Landlady in this aspect has been proved as a false and concocted story.
7. On the side of the Revision Petitioners, a plea is taken before this Court that both the Authorities under the Act have overlooked the averments mentioned in the R.C.O.P. Petition filed by the Respondent/Petitioner that she is in possession of the first floorof the petition premises which is alternatively available to her for the intended purpose.
8. It is the contention of the Learned Senior Counsel for the Revision Petitioners that whenever the Respondent/Landlady wanted higher rent she would cause a notice for eviction on the ground of owner’s occupation and when the rent has been enhanced then she will give up her demand for own use as was done on earlier occasion during the year 1999. In support of the said contention, the Learned Senior Counsel for the Revision Petitioners submits that both the Authorities have failed to take note of the fact that on 19.07.1999 Ex.P3 Lawyer’s Notice has been issued to the Revision Petitioners/Tenants requiring them to vacate the petition premises on the ground of own use and occupation of the Respondent/Landlady, but when the rent was increased from Rs.2,310/- per month to Rs.5,000/- per month she has given up her demand for her own use and occupation and this shows that her claim is not a bonafide one.
9. That apart, the Learned Senior Counsel for the Petitioners contends that P.W.2 does not even note the duration of the course that he has undergone and this creates a doubt in anyone’s mind as to whether he has done the certain courses alleged by him.
10. Advancing his arguments, the Learned Senior Counsel for the Revision Petitioners submits that both the Authorities have committed an error in holding that P.W.2 is a qualified person on the basis of Ex.P5 and Ex.P8 though the same have not been proved in the manner known to law.
11. The main contention advanced by the Learned Senior Counsel on behalf of the Revision Petitioners is that the Respondent/Landlady can utilise the entire first floor of the petition premises which is lying vacant for the alleged business of P.W.2’s DTP Centre and Cell Phone Service Centre and in fact, no reasons are given by the Respondent/Landlady for not occupying the first floor of the petition building. In short, the contention of the Learned Senior Counsel of the Revision Petitioners is that both the Authorities have not adverted to the factual aspects of the matter in a proper perspective which has resulted in miscarriage of justice and therefore prays for allowing the Civil Revision Petition in the interest of justice.
12. Per contra, the Learned counsel for the Respondent/Petitioner/Landlady submits that both the Authorities under the T.N. Buildings (Lease and Rent Control) Act 1960 have concurrently found that the Respondent/Landlady has established that she requires the premises for her sons own business and that the petition has been filed with bonafide intentions in order to support a business for her son and ordered eviction of the Revision Petitioners/Tenants and hence, this Court sitting in Revision at this stage need not interfere with the said finding of the fact so recorded.
13. In the main R.C.O.P. Petition filed under Section 10(3)(a)(iii) of the T.N.Buildings (Lease and Rent Control) Act, the Respondent/Petitioner/Landlady has among other things stated that her second son P.Srikanthan is qualified Bachelor in Electronic Science and completed the computer course of hardware and to gain experience is now employed in Cell Phone Service Centre at Avadi on temporary basis and that she bonafide requires the shop under the occupation of the Revision Petitioners/Respondents for carrying on a business in Computer by opening DTP Centre along with Cell Phone Service and Hardware for her second son P.Srikanthan.
14. Besides the above, in the Petition, the Respondent/Landlady has averred that her second son Srikanthan is experienced in Computer field and with the intention of carrying business in the petition premises purchased Intel Pentium 4.266 GB with all accessories at a cost of Rs.20,450/- in Supreme Computers and she is already having one more computer purchased 5 years back and obtained quotation in G.S.Computers and L.G Computers for purchase of one more computer as the computer is required for Cell Phone Service and also made arrangements for purchasing Cell Phone Service Units at a cost of Rs.15,000 and therefore, she has made all preparation for starting and carrying on business for her second son in the petition premises.
15. Further, the Respondent/Petitioner has also stated that she is having sufficient funds to carry on the business and purchase other accessories for starting DTP Centre and she is having Saving Bank Account in Indian Bank, Otteri Branch and at any time, she can raise funds as she is owning immovable properties worth several lakhs and moreover, nowadays nationalised Banks are also giving financial assistance for starting business under Self Employment Scheme.
16. It is the stand of the Respondent/Landlady that she is not owning any other property in the city of Madras for non-residential purpose and her second son P.Srikanthan is also not owning or occupying a building of his own in the city of Madras for non-residential purpose and therefore, she has been requesting the first Revision Petitioner/First Respondent to vacate two years back as his brother Jayanthilal has already shifted his jewellery business to Sowcarper and that the First Revision Petitioner/First Respondent can also join his brother and continue the business for which the First Revision Petitioner/First Respondent also agreed but he is evading to vacate under some pretext or other, etc.,
17. In the counter filed by the First Revision Petitioner/First Respondent, it is inter alia stated that he and his brother A.Jayanthilal are carrying on business at the petition premises under the Name and Style of M/s Nakoda Jewellers and the monthly rent of amenity charges in respect of the petition premises is Rs.8,000/- per month with effect from 01.09.2006 and not Rs.7,320/- per month and that after exchange of notices between the parties, the said rent and amenity charges were mutually increased by 10% from the then existing rent and amenity charges of Rs.7,320/- per month and is rounded off to Rs.8,000/- per month and the Respondent/Landlady is receiving the increased rent and amenity charges at Rs.8,000/- per month from 01.09.2006 on the solemn understanding that she will not claim shop portion from him.
18. In the counter, the First Revision Petitioner/First Respondent has taken a plea that he is not aware as to when the Respondent/Landlady has shifted her residence to Thirumullaivoyal nor he is aware about the number of sons she has or about their educational qualification and indeed, the Respondent/Landlady’s son P.Srikanthan for whose use and occupation the petition premises is now sought for is admittedly employed permanently in a Cell Phone Company drawing a very huge and lucrative salary will definitely not leave his service to start the alleged DTP Centre.
19. The stand projected by the the First Revision Petitioner/First Respondent in the counter is that the Respondent/Landlady is in the habit of making such false claim for owner’s occupation by issuing the legal notice demanding vacant possession of the petition premises as a tool to enhance the monthly Rent and Amenity charges and once the same are increased, she give up her demand for own use as has been done by her in the past and therefore, the Rent Control Original Petition is filed with malice and the same is devoid of merits.
20. The other contention of the First Revision Petitioner/First Respondent is that he along with his brother are carrying on business in the petition premises for the last more than 16 years and have built up their goodwill and business and they have stocks worth several lakhs at the petition premises and will have to recover several in their day to day business and as such, if they are evicted from the petition premises they will be put to irreparable loss and they will not be able to earn their livelihood and their business will be ruined and they will be left to fend for themselves.
21. The evidence of witnesses P.Ws.1 and 2 and R.W.1 assume significance in the present case on hand.
22. P.W.1 (the husband of the Respondent/Landlady) in his evidence has deposed that his wife’s grandmother Lakshmiammal settled the petition mentioned property in favour of his wife as per Ex.P2 Settlement Deed dated 23.01.1988 and that the Revision Petitioners/Respondents/Tenants of the ground floor paying a monthly rent of Rs.7,320/- and that the Revision Petitioners/Respondents came as Tenants in the month of October 1990 and that the measurement of the shop portion is 12X24 wherein the Revision Petitioners are conducting jewellery business and that the intial monthly rent of Rs.1,500/- and the Revision Petitioners gave an advance of Rs.40,000/- and also gave Rs.70,000/- towards security and that the rent was increased slightly and that the second Revision Petitioner/Second Respondent has started a shop in Sowcarpet.
23. It is the further evidence of P.W.1 that in shops with two shutters Rahamathullah has been inducted as a Sub Tenant for which a Notice Ex.P3 dated 19.07.1999 has been issued to the Revision Petitioners/Respondents but after receiving the notice, the Revision Petitioners have not sent a Reply and it was agreed to vacate Rahamathullah and permission has been granted to remove the two shutters and to make three shutters and also to decorate the shop and Ex.P4 an Agreement of Assurance dated 14.06.2000 has been entered into between the Revision Petitioners and the Respondent/Landlady and that in the Petition mentioned property, no other person is running the shop and that he is in the first floor till September 2000.
24. The evidence of P.W.1 is to the effect that he has taken a house at Thirumullaivoyal and has gone there and the first floor of the petition mentioned property is in his possession and that he has four children and that his first son Jayakanthan has studied M.C.A. and another son P.Srikanthan has studied BES and another son P.Rajinikanthan has studied MS at IIT, Madras and another son P.Naveenakanthan has studied B.E. EEE and he is Software Engineer and his second son has studied in Jaya Arts and Science and Ex.P5 is the Transfer Certificate and the second son has completed Computer Hardware Course as per Ex.P6 Certificate and he has been employed as Cell Phone Service Engineer in Cell World Company as per Ex.P7 Certificate and that he did his practical course in Radio Service Company as per Ex.P7 Certificate and his second son P.Srikanthan is working in his friend’s Cell Phone Shop without any remuneration and since the petition mentioned shop portion occupied by the Revision Petitioners is required for his son’s business, he asked the Revision Petitioners to vacate the same. For that the Revision Petitioners asked for time on the ground that he is to move to his brother shop at Sowcarpet and subsequently, a Notice has been issued by his wife to the Revision Petitioner in July 2006 and that the Revision Petitioner came to his house and asked for two years time and also offered to pay Rs.8,000/-, Rs.8,320/- as rent and asked for signing of the Agreement and when the Agreement has been prepared and handed over at that time, the Revision Petitioner has refused to sign and on 29.09.2006, he sent Ex.P11 Notice for which his wife sent a Reply Ex.P12 dated 17.10.2006 and the Rejoinder Ex.P13 dated 27.10.2006 has been issued by the Revision Petitioners’ Advocate and presently, the Revision Petitioners are paying the rent of Rs.7,320/- and the Receipts thereto are Ex.P14 series (9 receipts from October 2006 to June 2007).
25. Continuing further, the evidence of P.W1 is to the effect that the petition premises is required for running a Cell Phone Service Centre and DTP Centre for his son’s requirement and for that purpose, he has purchased INTEL Computer 10 years before and another computer in the year 2005 for his house and Ex.P15 is the Computer Bill of the year 2005 and since further computers are required, he received the quotation Ex.P16 and for starting a Cell Phone Service Unit, an expense of Rs.15,000/- to Rs.20,000/- will be incurred and to raise capital to this extent, he has means and Ex.P17 is the Indian Bank Pass Book in favour of his wife (Respondent/Petitioner) and Ex.P18 is the Indian Bank Pass Book in his name and that he has retired from Southern Railway and receiving a pension of Rs.5,000/- per month and his house at Thirumullaivoyal is valued about Rs.40 lakhs and his wife (Respondent/Petitioner) has no other property except the petition mentioned property and further his son is also not owning any other property.
26. It is the evidence of P.W.1 in his cross-examination that in the locality where the petition mentioned property is situated, there are no Government Offices, Banks or other offices and in that place, jewellery shops and other shops are situated and after Ex.R2 Agreement dated 27.08.1999, every year 10% increase has to be paid and thereafter for three years till 2003, such an increase amount was paid and after informing the Revision Petitioners/Respondents to vacate them, they have not paid the increased rate.
27. P.W.2 (Second Son of the Respondent/Landlady) in his evidence has stated that his brothers are in good position and that he alone is not employed and a lawyer’s Notice has been issued for running Cell Phone Service Centre and DTP Centre in the petition mentioned property for which he has purchased two computers and for running that Cell Phone Service Centre and DTP business, he requires the petition mentioned building since no other Company is situated near the petition mentioned property and therefore, he will have good business and for commencing the said business, he is in possession of a sum of Rs.20,000/- and that he has no other place except the petition mentioned building and further, his mother/Respondent/Landlady is also not owning any other property other than the petition mentioned building.
28. It is the further evidence of P.W.2 that the Civil Revision Petitioner has purchased a property opposite to the petition mentioned building at a distance of 100 feet and apart from that in Sowcarpet, he is having a shop.
29. The evidence of P.W.2 in his cross-examination is to the effect that if really the petition mentioned building is required then he would have commenced his shop in the first floor of the building and it is correct to state that in his chief examination, he has not mentioned as to why the first floor of the building has not been used and further that in Thirumullaivoyal, they are living as a joint family and it will take two hours to reach the petition mentioned building from Thirumullaivoyal and presently, they are residing at Thirumullaivoyal.
30. R.W.1 (the First Revision Petitioner/First Respondent) in his evidence has stated that the second Revision Petitioner/Second Respondent is his brother and that he is running a jewellery shop in the petition mentioned property and as per Ex.R2 Agreement dated 27.08.99 entered into between himself and the Respondent/Landlady, the rent has been determined at Rs.5,000/- per month and Ex.P3 Notice has been issued in the year 1999 for which Ex.R1 is the Reply Notice and in the year 1999, the rent has been at Rs.2,310/- and in Ex.P3 Notice dated 19.07.1999, it is mentioned that the petition mentioned building is required for the father and four sons and that as per Ex.R2 Agreement, the rent has been increased and presently, a monthly rent of Rs.7,320/- is being paid and Ex.P9 is the first Notice issued by the Respondent/Landlady and presently, the petition mentioned building is asked for the requirement of the Respondent/Landlady’s son Srikanthan and the Reply Notice is Ex.P11 and after Ex.P9 Notice, talks have been held in regard to the increasing monthly rent and that they have agreed for the rent being increased to Rs.8,000/- per month and the rent increased in September 2006 has been paid in October 2006 as Rs.8,000/- per month.
31. It is the further evidence of R.W1 that the first floor of the petition mentioned property is lying vacant which is in possession of the Respondent/Landlady and in NSC Bose Road, he has one shop and that shop is running by two brothers jointly and that he is not owning any property at a distance of 100 feet from the petition mentioned property and that property belongs to his father and that is being utilised for residential purpose and he is not residing with his father in that house and he is residing at No.9, Nainiappan Street, Chennai-12 and further from the year 2003, he is paying the same monthly rent of Rs.7,320/-.
32. It is the categorical evidence of R.W1 in his cross-examination that the Respondent/Landlady has no other non-residential house apart from the petition mentioned building and the Respondent/Landlady’s son P.Srikanthan has no property in the city of Chennai.
33. The Learned Senior Counsel for the Revision Petitioners cites the decision of the Hon’ble Supreme Court HAMEEDIA HARDWARE STORES V. B.MOHAN LAL SOWCAR, AIR 1988 SUPREME COURT 1060 , wherein it is held as follows:-
” A Landlady seeking eviction of a tenant from a non-residential premises under S.10(3)(a)(iii) of the Act in order to succeed in his petition should establish that he bona fide requires the premises in addition to proving the other ingredients referred to therein. C.R.P.No.215 of 1986, D/25-1-1988. (Mad) Reversed. (1982) 2Mad LJ 333, Air 1984 NOC 281 ?(Mad) and (1986) 99 Mad LW 966, Overruled.”
He also relies on the decision of this Court A.P.SWAMY V, V.KUNJITHAPADAM, 1994 (2) LW 661, wherein it is held that ‘the Landlady occupying first floor and seeking eviction from the ground floor for non-residential purpose, held, ought to have applied under Section 10(3)(c) and not under Section 10(3)(a) and therefore, this ground is not made out.’ He also draws the attention of this Court to the decision of the Hon’ble Supreme Court SMT.BUNKA DEVU V. 1ST ADDL. DISTRICT JUDGE AND OTHERS, AIR 1984 SC 1376, wherein it is observed that ‘the Landlady keeping his household effects in part of the premises but residing elsewhere, he is deemed to be in occupation of the premises.’
34. In response, the Learned counsel for the Respondent/Landlady cites the decision of this Court SHERWOOD EDUCATIIONAL SOCIETY V. ABID NAMAZIE AND TWO OTHERS, 1997 (1) MLJ 445, wherein it is held as follows:
“Sitting in revision, this Court can exercise its powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act only if it is shown that the Judgment by the Appellate Authority is, in any way, illegal, irregular and improper. It cannot reappreciate the evidence as a Court of appeal. If a decision is based on materials and that decision could be arrived on those materials, for the purpose of arriving at a different conclusion, the evidence cannot be re-read or re-appreciated.”
Also, in the aforesaid decision, at page 450, in paragraph No.22, it is held that ‘ It is settled law that the best evidence in a case is the admission of the opposite party.’ He also relies on yet another decision of this Court RUTH MARGARET GONSALVES V. K.T.H.PRESSES BY ITS PROPRIETOR, KUMAR, 1987 (1) MLJ 405, wherein it is held as follows:
” The Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act contemplates that if a part of a building is occupied for residential or non-residential purposes and the Landlady needs the premises in the occupation of the tenant for either residential or non-residential purposes, as the case may be, eviction can be ordered. The evidence of the landlady in the present case undoubtedly shows that she had used the word ‘business’ for describing her activity of making home made condiments and pickles. But is has to be remembered that the said activity of making home-made condiments and pickles in small quantities for earning a living is being carried on in the same premises in which she is residing. The premises are predomenently used for residence. If she has no other premises to carry on this activity and does it in her residential place, it cannot be said that any particular portion is being used for non-residential or business purposes. The present claim, therefore, does not at all fall under Section 10(3)(c), but squarely falls within only Section 10(3)(c)(iii).’
35. That apart, the following decisions are cited by the Learned counsel for the Respondent/Petitioner/Landlady:
a) In the decision V.V.RAMAKRISHNAN Vs. T.R.ANANTANARAYANAN, 1984 [1] MLJ NOC 4, it is held that “In other words, the Landlady is carrying on lodging business and he proposes to run hotel business. It being an allied business, it is an additional requirement under section 10 [3] [a] [iii] of the Act. It is for this reason both the Courts have taken the concurrent view that the petition is well maintainable.”
b) In M.ABDUL RAHMAN Vs. S.SADASIVAM, 1984 [1] MLJ 410, it is laid down as follows:
“Section 10 [3][a][i] of Act XVIII of 1960 uses the expression “if the Landlady requires” and naturally in cases coming under that sub-section the Rent Controller has to see whether the requirement is bona fide. But the expression “require” does not occur in section 10 [3][a][iii] of the Act and it merely enables the Landlady to apply to the Rent Controller for an order of eviction in case the Landlady is not occupying for purposes of business which he is carrying on of any non-residential premises of his own in the city. In such a case the Controller has no jurisdiction to consider whether the requirement is bona fide. If the conditions set out in section 10 [3][a][iii] of the Act are found to be satisfied on an enquiry by the Rent Controller, then, unless the application filed by the Landlady under that section is found to be for any oblique purpose, the Rent Controller, cannot reject that application. The mere fact that at an earlier stage the Landlady had demanded enhanced or higher rate of rent, will not show that the claim of the Landlady that he wants the premises for his own occupation is either mala fide or oblique. Therefore, in respect of a claim made under section 10 [3][a][iii] of the Act, the Rent Controller has no jurisdiction to go into the question whether the Landlady is bona fide. When the provisions under section 10 [3][a][i] and 10 [a][iii] use different expressions, it should be taken that the Legislature intended these provisions to have different operation. Thus once the Landlady establishes that he is carrying on business in a premises, which is not his own and that he has no other non residential premises in the city except the building in respect of which eviction is sought, the Rent Controller has only to find whether the claim made is true and is not for any oblique purpose.”
c) In THIRU CHELLIAH PANDITHAN Vs TMT. ANTHONIAMMAL AND TWO OTHERS, 98 LW 666 at page 667, it is held as follows:
“Having regard to the later decisions, the fact that the Landladys are not actually carrying on the business when they make an application for eviction of the tenant on the demand of requirement for their business could not be fatal to their claim under section 10 [3][a][iii] of the Act. In the present case, the bona fides of the Landladys that they wanted to started their own business was accepted and upheld by the court below and it could not be proper to interfere with that finding in that revision.”
d) In A.S.KANNAN Vs. S.C.M. ZACKERIYA, 100 LW at page 213, it is held as follows:
“This Court has uniformly held that when the premises are sought for by the Landlady for the benefits 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 Landlady occupies premises of his own would not disentitle his from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own.”
e) In M.NEMICHAND JAIN Vs. P.ETHIRAJAN, 1992 [2] MLJ 422, this Court has held thus:
“Though there is no specific averment, it is clear from the eviction that the respondent is seeking eviction of the petitioner herein on the footing that he requires the premises for the purpose of his son’s business which is being carried on in a rented premises. Taking into consideration all the averments made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of bona fide requirement. The Courts have to consider only the evidence on record and decide whether the bona fide requirement has been made out. The absence of an express sentence in the pleading does not vitiate the proceedings.”
f) In ARUMUGHA CHETTIAR Vs. JAYARAMAN, 1995 [2] MLJ 282, it is held hereunder:
“The most important point that has to be considered in this case is, whether the petitioner is entitled to get possession of a non residential building under Sec.10[3][a][iii] of the Rent Control Act. For this it has to be seen whether the petitioner is ‘carrying on business’ as contemplated under the Act. The appellate authority has said that the petitioner has not taken any steps and there is no evidence that he is ‘carrying on business’. The appellate authority assumed that for the purpose of getting possession of a non residential building the Landlady has to prove that he is actually carrying on a business. The said assumption has no legal foundation. ‘Carrying on business’ does not mean actually carrying on business. ‘Carrying on business’ may consist of a series of steps and even if one step was proved the requirement of the building for the purpose would be satisfied. But if there was no step at all taken and the matter was only in the stage of intention, it is difficult to bring such a case within section 10[3][a][iii] of the Rent Control Act.”
g) In MESSRS. BROOKE BOND INDIA LIMITED, REPRESENTED BY AREA SALES MANAGER, MADURAI Vs. R.RAGHAVAN, 1996 [1] MLJ 631, it is is held that “Taking into consideration the inflation, the original rent that the tenant was paying will not be sufficient and even if there is a demand or payment of enhanced rent, that will not show that the demand for eviction is lacking in good faith.”
h) In THIRUNAVUKKARASU Vs. VASANTHA AMMAL, 1972 [2] LW 607 at page 608, it is held as follows:
“In this case, at the time when the eviction petition was filed, the landlady’s son had to complete only six months more to finish his MBBS course. The need has already arisen, and the tenant cannot insist that the landlady should wait till her son finishes the M.B.B.S. Course, and thereafter file a petition for eviction and prove bona fide. If that be the case, by the time the building is obtained, the need will cease to exist. Even under our Statute, the words used are, ‘carrying on business’. Originally, there was a doubt whether medical profession is a business. But that doubt no longer subsists in view of a very recent decision of the Supreme Court reported in 1995 Supp. [3] SCC 190 [Dr. Jess Rapheal Vs. K.L.Regina Joseph].”
i) In M/s.VELMURUGAN ENGINEERS BY PROPRIETOR, REVEENDRAN Vs. A. KALIAPPAN, 1998 [2] MLJ 472 at page 473, it is held as follows:
“It has been held repeatedly by this Court that to bring the requirement under section 10[3][a][iii] of the Act, it is enough if the Landlady shows that he had taken some concrete steps towards the commencement of the business. The Landlady had completely satisfied the requirement of owner’s occupation [non-residential] and the requirement is bona fide. The Landlady has to succeed on the ground of owner’s occupation as well.”
j) In V.RADHAKRISHNAN Vs. S.N.LOGANATHA MUDALIAR, 1999 [1] MLJ SC 1 at page 3 and 4, the Hon’ble Supreme Court has observed as follows:
“On a plain reading of Sec.10[3][a][iii] of the Act, it appears to us that the legislature intended that a Landlady seeking eviction of the tenant could be disentitled from claiming possession of the non residential premises where he requires those premises for his own use, if he is occupying a non residential building of his own. Similarly, the Landlady would also be disentitled from claiming possession of non residential premises for the benefits of a member of his family, if that member of the family was in occupation of a non residential building of his own. Any other interpretation of this section would not only be doing violence to the plain language of the section but would result in absurdity inasmuch as the benefit of the provision would stand denied to the family members of the Landlady who do not occupy any premises of their own for whose benefits eviction is sought, if the Landlady himself is in occupation of a non residential premises of his own. The fact that the Landlady who seeks eviction for the benefit of a member of family is himself occupying a building of his own, cannot operate as a bar to the Landlady seeking eviction for the benefit of a member of his family who does not occupy any premises of his own. Thus, it follows and we hold that the law laid down in Jaganatha Chettiar’s case 97 L.W. 182 is not the correct law. The Learned Single Judge in Chettiar’s case did not notice, let alone consider the three earlier judgments in M/s.Indian Plywood Manufacturing Co., 99 L.W. 49; Kolandaivelu Chettiar Vs. Kolayana Chettiar [1961] MLJ 184; 74 L.W. 164 and M/s.Annamalai and Co. by its Partner S.S.Sundaram Chettiar V. Sital Achi, [1975] 1 MLJ 337; 88 L.W. 564. In our opinion, the Judgments in Kannan’s case, 100 L.W. 213 Indian Plywood Manufacturing Company’s case, K.Chettiar’s case and Annamalai and Company’s case lay down the correct law, which we hereby approve.”
j) In S.N.VADIVELU V. P.SUNDARAM, 2001 (4) CTC 710, this Court has held that ‘Landlady or member of his family need not carry on business at time of filing of petition and it is enough if it is reasonably likely to arise in future.’
k) In V.DINESH KUMAR Vs. DR.INDIRA BAI REP. BY HER POWER OF ATTORNEY, P.SURESH CHANDERPAUL, CHENNAI, 2007 [2] MLJ 976, this Court has observed as follows:-
“Though landlady is aged, her bona fide requirement for owner’s occupation cannot be doubted. It is now well settled that when application filed under section 10[3][a][i] or 10[3][a][iii] of the Act 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 petitioner’s requirement. When landlady requires the building for own occupation, it is unnecessary to make an endeavour how she could adjust in the tenanted premises or how she could live alone without assistance. On the contention raised by tenant, bona fide requirement cannot be doubted. Concurrent findings of Courts below ordering eviction on the grounds of owner’s occupation cannot be interfered with.”
l) In the decision N.Sivathanu Pillai Vs. R.Subramaniam, 1993 (3) MLJ 130, this Court has held that ‘When the authorities below have rendered concurrent finding on the question of wilful default (in the payment ofr rent) taking into consideration the factual details especially, when they have exercised their jurisdiction in accordance with law, there is no merit in the revision.’
m) In E.I.VELAYUTHAM V. HAJEERA, (2003) 2 MLJ 490, it is held that ‘the contention that the order of the Appellate Authority is cryptic and that the grounds of appeal have not been considered his reject and further, it is observed that the shortness of the order of the Appellate Authority cannot be a ground for remand and that the Rent Controller has given an elaborate order and there is no ground to interfere in Revision.’
n) In A.G.Krishnamurthy (Since dead) rep. by his L.Rs. and Others Vs. Jayaramaiah 2003 (2) MLJ 785, at page 786, it is held that ‘when there is no patent error or perversity in the approach of the Rent Control Authority, the High Court will not interfere in revision under Sec.25 of the Rent Control Act’.
o) In President, Communist Party Vs. M.R.Ansari, 2007 (1) MLJ 239 at page 240, it is laid down that “When the Rent Controller and the Appellate Authority, have concurrently rendered factual finding based on the evidence and when those findings are reasonable and legally acceptable, High Court could not interfere with such concurrent findings in its revisional jurisdiction under Section 25 of the Rent Control Act.”
p) In Kannadasan V. Vs. K.Swaminatha Pathar, 2007 (2) CTC 127, it is held that ‘the High Court, in Revision will not interfere with findings unless there is perversity in appreciation of evidence by Authorities below.’
q) In J.V. Bhoopalan Vs. Rajamanickammal and others, 2007 (2) CTC 472, it is held that ‘the High Court, sitting in revisional jurisdiction under Section 25 of Act cannot re-appreciate evidence and come to a different conclusion.
r) In Batco Roadways, Rep. by its Partner M.H.Patni Vs. A.Radhammal, 2009 (2) CTC 705, it is observed that ‘the Landlady in occupation of one portion of building sought eviction of tenant of another portion of same building to enable landlady’s son to carry on his tea shop and the pleadings and evidence did not show whether occupation of one portion of same building by landlady was for residential or non-residential purpose and the subsequent events also disclosed that after filing of Petition landlady had obtained vacant possession from another tenant who was running tea stall and had retained custody with her and neither evidence nor pleadings established whether or not landlady was in occupation of one portion of building as residential or non-residential and that the Petition under Section 10(3)(C) was maintainable.’
36. It is to borne in mind that as per Section 10(3)(a)(iii) of T.N. Buildings (Lease and Rent Control) Act 1960 a Landlord or a Landlady should be in need of the petition mentioned building under the Tenants occupation for the purpose of starting his or her own business or that of a member of his family. The other requirements is that the Landlord/Landlady has no other non-residential building of his/her own elsewhere in the same City, Town or Village concerned.
37. In a petition filed under Section 10(3)(a)(iii) of the Act in order to secure an order of eviction, the Landlord/Landlady must prove that he/she not only does not know any other non-residential building but also should prove bonafides as mentioned under Section 10(3)(e) of the Act.
38. It is not out of place for this Court to point out that the following conditions must be fulfilled to secure the position of a non-residential building. They are,
a) the Building should be non-residential in character;
b) the Landlady/landlady must be carrying on business on the date of his/her applying for eviction;
c) the Landlady/landlady should not be occupying any other non-residential building belonging to him for the purpose of his business;
d) the Landlady/landlady’s claim is bonafide for his/her business needs or any of their family members needs and the claim should not be based on reason like endeavouring to get more rent or to harass te Tenant.
39. If a step is taken with an intention to do actual business in future that will amount to ‘carrying on business’ will be a sufficient compliance of the Section.
40. This Court at this recalls the decision of the Honourable Supreme Court BROOKE BOND INDIA LIMITED, MADURAI Vs. R.RAGHAVAN, 1996 [1] LW 670, wherein it is held that ‘just because the Tenant accepted to pay an enhanced rate that will not by itself make the requirement of the Landlady not a bonafide one’.
41. Further, this Court aptly points out the decision JAGATRAKSHAGAN.T.V. (SINCE DECEASED) AND OTHERS V. N. FUTAREE BAI AND OTHERS, 1999 (3) MLJ 303 wherein it is held that ‘ in order to obtain eviction under Section 10(3)(a)(iii) for the business of a member of the family, the Landlady should satisfy the following conditions;
(i)the Premises in question must be a non-residential one;
(ii)the member for whom the premises is required must be carrying on business;
(iii) the member for whom the premises is required should not be occupying for the purpose of such business, a non residential building of his/her own;
(iv) the requirement of the Landlady for the business of the member of the family should be bonafide.’
42. The term ‘own use’ is not limited to physical user by the Landlord/landlady personally, as opined by this Court. Moreover, the Requirement is not only for the Landlady herself, but also of the normal emanations of the Landlady are included thereto. The requirement of a member of the family or of a person on whom the Landlady is dependent or who is dependent on the Landlady can be considered to be the requirement of the Landlady for his own use as per the decision JOGINDER PAL V. NAVAL KISHORE BEHAL, AIR 2002 SC 2256.
43. It is significant for this Court to point out that what constitutes ‘carrying on business’ is basically a issue of Fact or mixed issue of residual Fact and Law. The term ‘Business’ has a wider meaning in the decision rendered under a certain enactment. The term ‘Carrying on business’ comprises of series of steps and even one step is established, there is no reason why it cannot be said that the requirement is fulfilled. In short, if bonafide preparations to commence the business are being made then it will suffice and it is not necessary for a Landlord or a Landlady that, he/she should be carrying onbusiness on the date of filing of the petition.
44. In the decision of this Court AKTHARS, REP. BY ITS PROPRIETOR, R.SYED TAJUDDIN V. HITESH V. SHAH, 2000 (1) MLJ 413, it is held that ‘merely because there was a demand of higher rent by the Landlady, it would not mean that the Landlady application lack bonafides.
45. In the decision of the Hon’ble Supreme Court RAJARATHINAM CHETTY V. ABDUL GANI AND OTHERS, 1964 (1) MLJ 289 at page 291, it is observed that ‘where the building is occupied by different tenants, the natural question would arise whether the Landlady would require the entire portion or any portion of the non residential building for his use and occupation.’
46. It cannot be lost sight off that even for the purpose of a petition under Section 10 (3)(a)(iii) of the Act, the aspect of bonafides plays a vital role.
47. In SHARBUDIN AND OTHERS V. K.SUBRAMANI, (2004) 2 MLJ 107 at page 108, this Court has inter alis observed that ‘…the requirement of the Landlady was not bonafide since several other tenanted portions occupied by others for business purpose fell vacant during the tenancy of the proceedings and the Landlady was not acting bonafide in not using the same for the business of his son.’
48. In Krishna Reddy And Others Vs. Vasudevayya, 1984 (1) MLJ 22, it is held as follows:
‘It is true that concurrent findings based on evidence shall not be interfered with by this Court, exercising jurisdiction under Section 25 of the Act. In the instant case, there are no concurrent findings on facts by the two forums below to be faced. Hence, we find a transgression of the governing principles by the appellate authority when it considered the question. When there is a misconstruction of the principles to be applied or when decisions have been rendered in ignorance of the said principles, taking into consideration extraneous and irrelevant factors certainly High Court should not shirk its jurisdiction of revision to annual such improper, irregular and illegal decisions.’
49. It cannot be gain said that the planary power enjoined on the High Court under Section 25 of the Act is one of supervisory one and of a parental nature for the purpose of satisfying itself as to the propriety, legality or regularity of the order or proceeding of the Authorities mentioned under the Act.
50. In the decision S.NAGARAJAN V. T.SIVAPRAKASAM, 2000 (2) MLJ 691 at page 692, this Court has among other things observed that ‘….Law is well settled that when the Landlady says that he wants to provide accomodation for his son there is nothing to doubt about the bonafides of such claim. Law is also well settled that if the Landlady comes and prays before the Court that he has satisfied the satisfactory requirements and is in need of non-residential building, the Court can presume that the claim is bonafide.’
51. The Learned counsel for the Revision Petitioners contends that both the Statutory Authorities under the Act have held in coming to the conclusio n that P.W.2 is a qualified person on the basis of Exs.P5 and P8 though the same have not been proved in the manner known to law.
52. It is the further contention on the side of the Revision Petitioners that both the Authorities have erred in observing that the Respondent/Landlady has taken steps to start the said business on the basis of Ex.P15 Invoices for the purpose of computer in 2005 and Ex.P16, Quotations (which are also not in the name of PW2 for whom the petition premises is required, etc.,) and moreso, when the evidence of P.W1 is to the effect that one computer has been purchased 10 years before and further Exs.P17 and P18 have not been appreciated properly by the Authorities concerned since they have been created for the purpose of case by depositing certain amounts in the Bank to show their financial status.
53. Though on the side of the Revision Petitioners it is contended that both the Authorities have failed to appreciate the fact that as per Ex.P3 Notice dated 19.07.1999 issued to the Revision Petitioners requiring them to vacate the petition premises on the grounds of own use and occupation, but when the rent has been enhanced from Rs.2,310/- per month to Rs.5,000/- per month, the Respondent/Landlady has given up her claim of own use and occupation, this Court is of the considered opinion that inaction on the part of the Respondent/Landlady to proceed further and accepting the increased rent will not any way point out that the present requirement of the Landlady as claimed in the Rent Control Petition is not bonafide. Also, one cannot ignore an important fact that R.W.1 (First Revision Petitioner) himself has categorically stated in his evidence that after the Reply Notice Ex.P11 dated 29.09.2006, the talks have been held for increasing rent and that they have agreed for an enhancing of rent at Rs.8,000/- per month and also they paid the increased rent of Rs.8,000/- for September 2006 in October 2006 and that the same has been paid to P.W2. Added further, it is the evidence of R.W1 in his cross-examination that from the year 2003, he has been paying monthly rent of Rs.7,320/-. Therefore, it is clear that the monthly rent for the petition mentioned shop has been increased gradually from Rs.1,500/- per month right at the time of inception of the tenancy periodically upto the year 2003 and lastly, the rent has been paid from the year 2003 at Rs.7,320/- per month. In any event, it is reiterated that merely because the Revision Petitioners have accepted to pay the enhanced rent that will not disentitle the Respondent/Landlady to make a claim in respect of the petition mentioned shop for her son’s requirement of shop, a Cell Phone Service Unit and DTP Centre. Even though P.W1 (husband of the Respondent/Landlady) has stated in his evidence that 10 years before he has purchased an INTEL Computer and in the year 2005, he has purchased another computer that will not any way affect the claim of the Respondent/Landlady in claiming the petition mentioned building for her second son’s use viz., P.W2 for the purpose of running Cell Phone Service Centre and DTP Centre, in the considered opinion of this Court. In fact, one has to see whether the requirement of the Respondent/Landlady is bonafide in regard to the claim that she makes in the petition. Moreover, it will suffice that if bonafide preparations to start the business are commenced. For running a Cell Phone Service Unit and DTP Centre no elaborate preparations are required.
54. In this connection, it is relevant for this Court to point out that though P.W2 in his evidence has stated that he has studied BES course from the year 1993-1998 for a period of five years and that he has purchased Ex.P5 Transfer Certificate issued by Jaya Arts and Science College and marked Ex.P6 Computer Hardware Certificate issued by Shyamala Institute dated 08.05.1995, Ex.P7 Certificate dated 04.04.2006 issued by Proprietor of the Cell Phone World show that he worked as a Cell Phone Service Engineer from 14.01.2004 to 23.03.2006 and Ex.P8 Practical course in Radio and Audio Telephone Service Certificate dated 08.05.1995 issued by the Shyamala Radio Institute, these certificates have been marked on the side of the Respondent/Landlady to show the qualifications of her second son viz., P.W2. It is not necessary in a summary proceedings before the Learned Rent Controller to mark these documents by following the strict Rules of Evidence Act, as opined by this Court and therefore, the contra plea of the Revision Petitioners that Exs.P5 and P8 have not been proved in the manner known to law is not accepted by this Court.
55. In regard to the plea on the side of the Revision Petitioners that there is contradiction in the evidence of P.Ws.1 and 2 to the effect that P.W1 (Father of P.W2) as in his evidence has stated that the need for own use and occupation for his second son arose for the first time in 2003 only and P.W2 has spoken that the need has arisen for the first time before issuing Ex.P9 Lawyer’s Notice on 22.07.2006, these are all trivial contradictions that will not affect the claim of the Respondent/Landlady. The primordial consideration that is required to be proved is Bonafide requirement for the business of the member of the family’s need which relevant factor will govern the factual aspect of the present case, as opined by this Court.
56. Though a ground is taken in the grounds of revision that both the Authorities have failed to appreciate the fact that Exs.P5 and P8 have been prepared for the purpose of case and no corroborating evidences have been produced in this regard though agreed to be produced by P.W2 and by examining witnesses to prove Certificate, in this regard this Court is of the considered view that the act of commission or ommission of P.W2 in this regard is not fatal to the claim made in the R.c.O.P. Petition filed under Section 10(3)(a)(iii) of the Act. After all, the bonafide requirement of the Respondent/Landlady as per Section 10(3)(a)(iii) of the Act will have to be proved in an ordinary fashion like any other relevant fact or fact in issue. Indeed, the term ‘Bonafide’ is only a subjective matter and the term ‘Require’ signifies mere desire on the part of the landlady is not enough. But, there must be a requirement of need and she must establish the said requirement of non-residential accomodation for commencing or starting business of her own or the business of any member of her Family. Bonafide, is not a State of mind alone. It depends on numerous factors and attendent circumstances of a given case.
57. If the claim of the Landlady isthat she bonafide requires the premises for a son’s use for the purpose of conducting a second son’s business, then it is not for the Revision Petitioners to repudiate the right of the Landlady or her son’s right to carry on the business in the petition mentioned building. As a matter of fact, the Revision Petitioners/Tenants are not to dictate terms of the Respondent/Landlady in regard to her requirement by mentioning that the first floor of the petition mentioned premises is available and P.W2 (her son) can occupy the same for the rquisite need. Also, Section 10(3)(a)(iii) of the Act says that the Landlady ought not to occupy a non-residential building of her own aspect for the purpose of rquirement of a member of her family. The bonafide requirement aspect of the Respondent/Landlady is not her desire to remove the Civil Revision Petitioners/Respondents from the petition mentioned building, but the same can at best only be said that it is only a means of an end.
58. In the present case on hand, even though before the Learned Rent Controller, the Respondent/Landlady has not been examined as witness and only her husband P.W1 and her son P.W2 have been examined, her non-examination will not make her claim malafide and in law, it is not necessary that a Landlady should get into the witness box and it is sufficient that if anyone on her behalf tenders evidence before the Rent Controller and in the instant case, the Landlady’s husband P.W1 admittedly has been examined, as observed by this Court.
59. Coming to the plea that has been projected in the grounds of Revision, P.W2 (Second son of the landlady) has received an enhanced rent of Rs.8,000/- per month for the month of September 2006 after issuing Ex.P9 Lawyer’s Notice and later confirmed under Ex.P13 Reply Notice dated 27.10.2006, etc., and that the Respondent/Landlady cannot be permitted to take advantage of her own fault in not issuing the rental receipts right from 1990 till September 2006, etc., these are all alien matters to decide the petition under Section 10(3)(a)(iii) of the Act and it is for the Revision Petitioners to take appropriate steps under the T.N. Buildings (Lease and Rent Control) Act 1960 to demand and claim the rental receipts from the Landlady for the payment of due monthly rent paid by them. In this connection, this Court points out that it is the statutory duty of the Landlady to issue/give receipts for the monthly rent paid.
60. In the case before hand, this Court opines that the Respondent/Landlady is in possessive of necessary funds. The Homo-Sapien’s aim to commence business in the portion of the petition mentioned building owned by her is a natural innate desire. Though P.W1 (husband of the Respondent/Landlady) in his evidence has stated that he has been residing in the first floor of the petition mentioned
building till September 2006 and presently, he has taken a house at Thirumullaivoyal and residing there and that the first floor of the petition mentioned building is in his possession, this Court is of the considered view that on the facts and circumstances of the present case, the Respondent/Landlady has established her bonafide requirement of the premises for the business to be commenced by her second son P.W2 and there is nothing to doubt the bonafide of such claim and the same is not a device to serve an oblique purpose. In short, on an overall assessment of the entire gamet of the facts and circumstances of the instant case and in the light of the detailed discussions mentioned supra, this Court is of the considered virew that the Respondent/Landlady has subjectively satisfied the statutory requirements under the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 that she is in rightful need of the petition mentioned non-residential building and viewed in that perspective, the Civil Revision Petition fails.
61. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The Revision Petitioners/Tenants are granted two months time to hand over the vacant possession of one shop in the ground floor of the petition premises occupied by them from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed.
vri
To
The VII Judge,
Court of Small Causes,
Chennai