ORDER
Thanikkachalam, J.
1. The landlord is the petitioner herein. The landlord filed the petition for eviction against the tenant on the ground of owner’s occupation under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as amended by Act 23 of 1973 and Act 1 of 1980 (hereinafter called the Act). The respondent is the tenant under the petitioner herein in respect of the petition premises facing Kattur Sadayappan Street, Periamet, Madras-600 003, bearing door No. 26, on a monthly rent of Rs. 375 apart from electricity charges. The landlord is also living in the same building having the same door No. 26, but facing Karpuramudali Street, Periamet, Madras 600 003. A partition wall is dividing the landlord’s portion and the tenant’s portion. There was an agreement between the landlord and the tenant dated 8.9.1982 and according to the said agreement, the tenant agreed to help the landlord financially to construct the first floor so as to enable the landlord to occupy the first floor and let out the (sic) ground floor to the tenant. If such construction is made, the tenant agreed to pay the rent at the rate of Rs. 1,001 per month. The tenant advanced a sum of Rs. 5,000 in pursuance of the said agreement. On 11.8.1982 another sum of Rs. 6,000 was also ad-vended. Thus the tenant advanced a sum of Rs. 11,000 to the landlord to put up the first floor. The tenant also assured the landlord to advance a further sum of Rs. 44,000 for building the first floor. According to the landlord in spite of several requests made by him, the tenant did not advance the further sum of Rs. 44,000. Therefore, he was unable to construct the first floor. The landlord was carrying on his cycle business at premises No.57, Thatha Muthiappan Street, Madras-600 001. The owner of the said premises filed a petition for eviction against the landlord herein in R.C.O.P. No. 5705 of 1981 wherein eviction was ordered. The appeal filed by the landlord herein was also dismissed. Thereafter C.R.P. No. 5571 of 1985 was filed before this Court and that was also dismissed. Thereafter the landlord herein handed over possession of the premises at door No.57, Thatha Muthiapppan Street, Madras-600 001 to his landlord. According to the landlord he is not having or in occupation of any other non-residential premises of his own in the City of Madras. For the purpose of conducting his cycle business he bonafide requires the petition premises under the occupation of the tenant herein. The tenant is now in occupation of the promices at No. 14, Ekambara Kumaraguru Street, Periamet, Madras-3. Therefore, the petition premises was not used by him for the past one year. It is kept under lock and key. The landlord is always ready and willing to return back the sum of Rs. 11,000 advanced by the tenant. The landlord sent a notice to the tenant on 16.6.1984 calling upon the tenant to quit and deliver vacant possession of the petition premises. The tenant sent a reply on 19.7.1984. Hence, the landlord filed the present petition for eviction under Section 10(3)(a)(iii) of the Act.
2. The tenant filed a counter stating as follows:
The tenant is a partnership firm. The other partners of the firm were not impleaded as parties in the petition for eviction. After the landlord surrendered possession of the premises at No. 57, Thatha Muthiappan Street, Madras-1, he is not carrying on any business as alleged by him. On the date of filing the petition for eviction the landlord is not carrying on any business. Though the landlord received a sum of Rs. 11,000 for putting up construction he did not do so. The tenant agreed to pay a sum of Rs. 44,000 for putting up the first floor. Since the landlord failed to start construction work, the money was not advanced by the tenant. The tenant is in occupation of only a small portion facing the street. The landlord is in occupation of the rest of the portion. The tenant temporarily suspended its business so as to enable the landlord to put up the construction. The tenant also reminded the landlord to receive the amount in order to start the construction work. On 6.2.1985 the tenant sent a sum of Rs. 1,000 by way of cheque along with a letter so as to enable the landlord to start the construction work. But the landlord failed to start the construction work. The tenant also took the premises at No. 14, Ekarnbara Kumaraguru Street, Madras-3 on a monthly rent of Rs. 1,500 and also paid a sum of Rs. 40,000 as advance to the owner of the said premises. It is not correct to state that the tenant did not occupy the petition premises. It was, therefore, submitted that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act.
3. The petitioner examined himself as P.W.1, Mohammed Ismail was examined as R.W.1. The landlord filed 17 documents and the tenant filed 9 documents. Considering the facts arising in this case, the Rent Controller came to the conclusion that it is not correct on the part of the landlord to say that the tenant is not occupying the petition premises for the past one year. The Reni Controller further held that there is no bana fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly the petition for eviction was dismissed. On appeal, the Rent Control Appellate Authority confirmed the order passed by the Rent Controller. It is against that order the present revision has been preferred by the landlord.
4. Learned Counsel appearing for the petitioner/landlord submitted as under:
The tenant is a partnership firm. The tenant was impleaded as respondent in the petition for eviction represented by its Managing Partner. In view of the decision of the Supreme Court, this Court can direct the petitioner herein to implead the other partners of the respondent firm in the petition for eviction. Simply because the other partners were not impleaded, it cannot be said that the petition is not maintainable. As per the agreement between the parties the tenant agreed to pay a sum of Rs. 44,000 for putting up the first floor so as to enable the landlord to occupy the same and let out the entire ground floor portion to the tenant. After paying a sum of Rs. 11,001 the tenant did not pay further amount. Therefore, the landlord could not proceed with the construction work. The tenant is not in occupation of the petition premises. The tenant is using the petition premises as godown. Only during day time men working in the tenant firm used to come to the petition premises and during night time the petition premises is kept under lock and key. Therefore, the tenant ceased to occupy the petition premises. The landlord was doing his cycle business in a rented premises at No. 51, Thatha Muthiappan Street, Madras-1. In the eviction proceedings initiated by the owner of the said premises, the landlord herein was evicted from the said premises. The landlord is not having any other non-residential premises of his own in the City of Madras. He is keeping all the material in his residential premises. The tenant has already shifted its activities to another rented premises at Ekambara Kumaraguru Street, Madras-3. It is not correct to state that the landlord discontinued his cycle business, which he was carrying on in a rented premises at Thatha Muthiappan Street, Madras-1. Soon after he was evicted from the rented premises, the landlord filed the petition for eviction against the tenant herein since he required the portion under the occupation of the tenant for his own business purpose. He is storing all the business materials in his residential house, since he has no other place to store the same. It was, therefore, pleaded that the authorities below were not correct in holding that the tenant is still in occupation of the petition premises and the requirement of the petition premises by the landlord under Section 10(3)(a)(iii) of the Act is not bonafide.
5. On the other hand, learned Counsel appearing for the respondent/tenant submitted as under:
The tenant is a partnership firm. The tenant firm is represented by its Managing Director in the eviction proceedings. All other partners were not impleaded in the eviction proceedings. Therefore, the petition for eviction is liable to be dismissed. As per the agreement the tenant advanced a sum of Rs. 11,000 to the landlord for the purpose of putting up the first floor so as to enable the landlord to let out the entire ground floor to the tenant. After receiving a sum of Rs. 11,001 the landlord did not commence the construction work. Since no construction was commenced, the tenant did not want to pay the agreed amount of Rs. 44,000 to the landlord. It is not correct to state that the tenant is not in occupation of the petition premises or ceased to occupy the same for the past one year. The tenant is using the petition premises as a godown to store his business materials. The tenant suspended, temporarily, his business for a period of two months. It is not correct to state that the men belonging to the tenant firm are doing some work during day time and the business premises is kept closed during night time. After the landlord was evicted from the premises at No. 51, Thatha Muthiappan Street, Madras-1, he was not doing any business. Particularly, on the date of filing the petition for eviction the landlord was not doing any business. There are no materials on record to show that he is storing his business materials in his residence after he was evicted from the rented premises. For the purpose of enabling the landlord to put up construction, the tenant also took another premises at Ekambara Kumaraguru Street, Periamet, Madras-3 on a monthly rent of Rs. 1,500 and paid a sum of Rs. 40,000 as advance to the owner of the said premises. Even though the tenant is repeatedly requesting the landlord to start the construction work, he did not do so. Further, the landlord is in occupation of the major portion of the premises at No. 26, Kattur Sadayappan Street, Madras-3. The suit premises is also having a door-way in the adjacent street called Karpura Mudali Street. When the landlord is in occupation of a portion of the petition premises, he cannot file a petition for eviction under Section 10(3)(a)(iii) of the Act. For all these reasons, it was submitted that the landlord failed to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Hence, it was pleaded that the order passed by the authorities below in dismissing the petition for eviction is in order, Since both the authorities below concurrently came to the conclusion that the landlord failed to establish his bona fide under Section 10(3)(a)(iii) of the Act, no interference is called for by this Court.
6. I have heard the rival submissions.
7. The fact remains that the petition premises is situate at No. 26, Kattur Sadayappan Street, Madras-3. The said premises is also having another door way in the adjacent street called Karpura Mudali Street. The tenant is in occupation of a portion of the building facing Kattur Sadayappan Street and rest of the portion of the premises is facing Karpura Mudali Street. The landlord is in occupation of the portion facing Karpura Mudali Street. There was an agreement between the landlord and the tenant dated 8.9.1982 and according to the said agreement, the tenant agreed to help the landlord financially to construct the first floor and let out the entire ground floor to the tenant. If such construction is put up the tenant agreed to pay the rent at the rate of Rs. 1,001 per month. In pursuance of the said agreement, a sum of Rs. 11,001 was paid. Further the tenant also agreed to pay a sum of Rs. 44,000 for completing the construction. After receiving the advance amount of Rs. 11,001 the landlord did not start the construction work. Therefore, the tenant does not want to pay the further amount of Rs. 44,000 as agreed between them. According to the landlord, the tenant ceased to occupy the petition premises for a period of one year. But according to the tenant he suspended his business for a period of two months so as to enable the landlord to put up the construction. The tenant also took another premises Ekambara Kumaraguru Street, Madras-3 on a monthly rent of Rs. 1,500 and also paid an advance of Rs. 40,000 to the owner of the said promises. The petition premises is being used by the tenant for the purpose of storing his business materials. The tenant is doing business in exporting leather. According to the landlord, men belonging to the petition premises used to do some work only during day lime and during night nobody used to be there in the petition premises. In support of this contention the landlord filed a card showing electric meter reading. The said card would go to show that only minimum charge was levied. But it remains to be seen that even according to the landlord the men belonging to the tenant firm used to store the business materials during day time. If that is so, it cannot be said that the tenant ceased to occupy the petition premises. Considering the facts arising on this aspect both the authorities below concurrently came to the conclusion that the landlord was not correct in saying that the tenant ceased to occupy the petition premises. On a careful consideration of the facts arising on this aspect, I am also of the opinion that the landlord was not correct in saying that the tenant ceased to occupy the petition premises.
8. The landlord, before this Court, filed a petition C.M.P. No. 15282 of 1991 for permission to implead the other partners of the firm. This was opposed by the tenant by filing a counter. I have heard the learned Counsel appearing on both sides on this aspect. Considering the decision of the Supreme Court in the case of Chhotelal Pyarelal v. Shikharchand , I directed the landlord to amend the cause-title relating to the petition for eviction, the appeal memorandum before the Rent Control Appellate Authority and the memorandum of civil revision petition filed before this Court by impleading all the partners of the tenant firm. Accordingly amendment was carried out by the landlord.
9. The petition for eviction was filed under Section 10(3)(a)(iii) of the Act. According to the landlord he was carrying on his cycle business in a rented premises at No. 57, Thatha Muthiapppan Street, Madras-1. The landlord filed R.C.O.P. No. 57085 of 1981 for eviction. The eviction petition was ordered. The landlord herein preferred an appeal and the appeal was also dismissed. As against that order, the landlord preferred C.R.P. No. 5571 of 1983 before this Court and that was also dismissed. Thereafter, the landlord herein surrendered possession of the rented premises to his landlord on 17.8.1984. On 29.9.1984 the landlord filed the present petition for eviction against the tenant herein. The landlord submitted that after surrendering possession of the rented premises, he required the petition premises bonafide for conducting his own cycle business. After surrendering the possession of the rented premises, he stored the entire materials belonging to the cycle business in his residence. The landlord further submitted that he is not having or in occupation of any other non-residential premises of his own in the City of Madras. For these reasons according to the landlord he was carrying on his business on the date of filing the eviction petition. Therefore according to the landlord he established his bonafide requirement of petition premises under Section 10(3)(a)(iii) of the Act.
10. On the other hand, the tenant submitted that after the possession of the rented premises was surrendered by the landlord, he was not carrying on any business of his own. Therefore, on the date of filing the petition he was not carrying on any business of his own as contemplated under Section 10(3)(a)(iii) of the Act. The tenant further submitted that there is no evidence on record to support the version put forward by the landlord that after the rented premises was surrendered he stored the business materials in his residence. The tenant further submitted that the landlord is in occupation of a major portion of the petition premises. Therefore the petition filed under Section 10(3)(a)(iii) of the Act is not maintainable.
11. In order to obtain possession under Section 10(3)(a)(iii) of the Act, the landlord must show that he is carrying on his business in a rented premises on the date of filing the petition. He must further show that he is not having or in occupation of any other non-residential premises of his own or in the city of Madras. Apart from that the landlord must also prove the element of bona fide as contemplated under Section 10(3)(e) of the Act.
12. Even though the landlord was carrying on his cycle business in a rented premises in Thatha Muthiappan Street after the surrender of the possession of the said premises he was not doing his business. The petition for eviction was not filed on the basis that he made all preparations for starting a new business. Therefore, the fact that he was storing his business materials in the residence of his own and he had the prior experience of doing cycle business would not help him to contend that he was carrying on his business on the date when the petition for eviction was filed. The Wording occurring in Section 10(3)(a)(iii) of the Act, viz., “is carrying on business” means that the landlord should carry on his business on the date of filing of the petition. There-lore, on facts, in the present case, the landlord failed to establish the fact that he was carrying on his business on the date of filing the petition. In K. Rengaswamy Naidu v. The Tamil Nadu Handloom Weavers Co-operative Society Limited, through the Marketing Officer (1982) 1 M.L.J. 13, while considering the provisions of Section 10(3)(a)(iii) of the Act it was held that “the requirement of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, that the landlord should be actually carrying on the business is not satisfied in this case. As per the section, the landlord must be carrying on the business at the time of his claim for eviction so as to enable him input forward a claim under Section 10(3)(a)(iii). In the case reported in T. K. Krishna Iyer v. Karur Vysa Bank Limited, Coimbatore (1959) 2 M.L.J. 215, the civil revision petitioner was conducting a coffee hotel business in a rented premises in the name and style of “Ranjitha Vilas”. After he found that he could not acquire possession of the building in which he was conducting the business he entered into a family settlement with his brother and his son under which the business became the exclusive property of the brother and the son. By reason of the settlement the landlord ceased to have any interest in business as effectively as if the business has been sold away in court auction in execution of a decree which some creditor had obtained against the landlord. After the landlord ceased to have any interest in the business he desired to start a business of his own as a coffee hotel proprietor. He had been a coffee hotel proprietor all his life and had the skill and experience needed for starting and conducting such business. He subsequently purchased a building with a view to conduct in it the business known as “Ranjitha vilas”. Since that business had ceased to be his and since he desired to start a new business of the same kind, he claimed possession of the building from the tenant occupying the building he had purchased. On these facts Subrahmanyam, J., held that in view of the phrase viz., “a business which he is carrying on” in Section 7(3)(a)(iii) the section would apply only to cases where a person is conducting a business in a building which is not his and which he is bound to vacate under an order or decree of a civil court or any other authority. Since the landlord who claimed that he required the premises for his own business had not done any act in the way of carrying on or preparing for carrying on a business as hotel proprietor on the date on which he filed the application, the landlord was held to be not entitled to an order of eviction. Even though he wanted to become a hotel proprietor again it would not render him on the date on which he made the application a person who was carrying on a business as hotel proprietor. He was on that date a person who had done business in the past as a hotel proprietor and who was intending to do business in the future as hotel proprietor. Such a person cannot be said to be a person who is carrying on a business. To hold otherwise would be to delete from Section 7(3) (a)(iii) the words “which he is carrying on” a function which the Court is powerless to perform. With these observations the learned single Judge held that the landlord is not entitled to evict the tenant from the premises the landlord had purchased.” So also in the case of K. Gopalan Nair v. V. Kamalammal (1981)1 M.L.J. 40 : 94 L. W. 130, it was held that “the petition is not maintainable as the evidence revealed that the landlady’s husband merely had an intention to start a textile business. It has been held in P.N. Raja Chettiar v. The State of Tamil Nadu , that “carrying on a business may consist of a series of steps, and even if one step is proved, the court did not see why the requirement is not satisfied, but if there is no step at all Whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute, viz., Section 10(3)(a)(iii) of the Act.”
13. However, learned Counsel appearing for the landlord cited certain decisions to show that if some attempts were made for starting a business, that would be sufficient for the landlord to show that he was carrying on business on the date of filing the petition for eviction. But it remains to be seen that this was not the case put forward by the landlord in the petition for eviction. Therefore, those decisions cited by the learned Counsel appearing for the landlord would not render any assistance to him in order to succeed in the petition filed under Section 10(3)(a)(iii) of the Act in the present case.
14. As already pointed out that in order to obtain possession under Section 10(3)(a)(iii) of the Act, the landlord must not only show that he is carrying on his business in a rented premises and he is not in occupation of any other non-residential premises of his own in the city of Madras, but he must also establish that his requirement of the petition premises is bonafide as contemplated under Section 10(3)(e) of the Act. While considering this aspect the Supreme Court in the decision reported in Hatneeda Hardware & Co., v. Mohanlal Sowcar , held as under:
The word “claim means a demand for something as “due” or to seek or ask for on the ground of right” etc. In the context of Rent Control law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bonafide, n landlord should establish that he deserves to be put in possession of the premises which is in the occupation of the tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fide of the landlord’s requirement or need. The word “claim in Clause (e) of Section 10(3) of the Act should therefore be construed as “the requirement’ of the landlord or his deservedness. “Deserve’ means to have a rightful claim’ or a just claim. Since Clause (e) of Section 10(3) of the Act is also applicable to a petition filed under Sub-clause (iii) of Section 10(3)(a) of the Act, it becomes necessary to examine whether the requirement of the landlord is bonafide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act.
There is no material on record in the present case to show that after surrendering possession of the rented premises the landlord was carrying on his cycle business on the date when the petition for eviction was filed. It was also pointed out by the tenant that the landlord is in occupation of a major portion of the petition premises situate at No. 26, Kattur Sadayappan Street, Madras-3. Even though the portion under the occupation of the landlord is facing Karpura Mudali Street for both the portions which are under the occupation of the tenant and as well as the landlord the door No. is 26. Only a wall is dividing the portions under the occupation of the landlord and the tenant. Therefore, learned Counsel appearing for the tenant submitted that the landlord cannot file a petition for eviction under Section 10(3)(a)(iii) of the Act and only a petition under Section 10(3)(c) of the Act would be competent. In the petition for eviction the address of the landlord is shown as No. 26, Karpura Mudali Street. But in paragraph 4 of the petition it is stated that the landlord is residing in the petition premises. According to learned Rent Control authority this would go to show that the landlord is also residing in the petition premises. But the petition was not filed under Section 10(3)(c) of the Act. But the authorities below pointed out whether the petition filed is under Section 10(3)(a)(iii) or under Section 10(3)(c) of the Act the landlord failed to establish his bonafide in requiring the petition premises for conducting his own business. For all these reasons, the authorities below concurrently came to the conclusion that the landlord failed to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. The question of bonafide requirement is a question of fact or it may be a mixed question of fact and law. On a question of fact, both the authorities below concurrently came to the conclusion that there is no bona fide on the part of the landlord in seeking eviction under Section 10(3)(a)(iii) of the Act. Hence, on a careful consideration of the facts arising in this case in the light of the judicial pronouncements cited supra, I hold that the order passed by the Rent Control Appellate Authority in dismissing the petition filed by the landlord under Section 10(3)(a)(iii) of the Act is in order. Hence I am not inclined to interfere with the same.
15. In the result the revision is dismissed. No costs.