IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.10.2009 C O R A M THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P. NPD No.224 of 2007 Mrs.San Shi Chen ... Petitioner Vs M/s.Golden Plastics, No.4/7, New No.4/2, Evening Bazaar Road, Chennai 600 008. ... Respondent Prayer : Civil Revision Petition filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control Act, 1960 as amended by Act 23 of 1973 & Act 1/80 against the fair and decreetal order passed by the VII Small Causes Judge (Appellate Authority), Chennai, in R.C.A. No.1693 of 2004 dated 02.12.2006 reversing the fair and decreetal order passed by the XVI Small Causes Judge, Chennai, dated 30.9.2004 in RCOP No.76 of 2004. For Petitioner : Mr.S.Parthasarathy For Respondent : Mr.A.K.Raghavalu - - - - - O R D E R
The following are the allegations contained in the eviction petition filed by this petitioner under Section 10 (3) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The petitioner is landlord of the premises bearing Old No.4/7, New No.4/2, Evening Bazaar Road, Chennai 3. The respondent is tenant in respect of the said shop portion for a monthly rent of Rs.2,000/- per month and only for three years from 01.07.1992 the property was rented out.
2(a) The petitioner has three sons among whom one is handicapped. He has completed his BDS course. Due to want of place, he is unable to set up a dental clinic for his own. The petitioner requested the respondent to vacate and hand over the vacant possession but in vain. The petitioner bonafide requires the demised premises for her son’s own use and occupation for setting up a clinic for her handicapped son. She does not own any property in the city in Chennai except the petition premises. She is suffering from untold hardship, since she could not provide a place for her handicapped son to set up a clinic. The demised premises is convenient for the petitioner to accommodate her son.
2(b) Evening Bazzaar road is the place where most dental surgeons have clinics. If the eviction is not ordered, the petitioner will be put to irreparable financial loss and inconvenience. The balance of convenience is in favour of this petitioner. On 07.10.2003, the petitioner sent a notice to the respondent to terminate the tenancy and granting one month time for eviction. A reply was sent by the respondent on 21.10.2003 refusing to vacate. Hence, eviction order was passed.
3.In the counter filed by the respondent, the following are contained: The description of the respondent company is defective since all the partners of the respondent company are not made parties. Hence, the petition is liable to be dismissed for non-joinder of necessary parties. At the inception, the rent was Rs.400/- per mont in 1981 but it was increased then and there and the present monthly rent is Rs.2,000/-. It is false to state that the petition premises it is required for setting up a dental clinic for petitioner’s handicapped son who has completed his BDS course. The petitioner does not bonafide require petition premises since Shop No.4/7 in the same building is occupied by her where she is running a dental clinic under the name and style Venfa Dental Clinic. Apart from that, Shop No.4/1 & 4/B owned by the petitioner is under lock and key. Shop No.4/E in the same premises owned by petitioner is let out for rental. The statutory requirements are not fulfilled and hence the petition may be dismissed.
4.The learned Rent Controller, after considering the evidence and pleadings on record, directed eviction of this respondent granting one month time. The respondent carried the matter in appeal before the Rent Control Appellate Authority in RCA No.1693 of 2004 and the appeal has been allowed setting aside the order of the Rent Controller. Hence, the petitioner / landlord is before this Court with this revision.
5.In order to show bonafide requirement of a non-residential building, the landlord has to show as per Section 10 (3) (a) (iii) that she or any member of her family is not occupying for the purpose of the business a non-residential building which she or any member of her family is carrying on in the city town or village concerned which is owned. Thepetitioner has got two sons. P.W.1 and 2 are her sons among whom P.W.2 has obtained B.D.S degree which is evident from the copy of B.D.S certificate, Ex.P.4 issued on 05.10.1995. Ex.P.5 is also a certificate issued to him from the College of Dental Surgery, Manipal. From these documents, it is established that P.W.2 is a decree holder in B.D.S.
6.Thepetitioner has given Ex.P.1, Power of Attorney in favour of P.W.1, her son to depose on her behalf. In his evidence, he says that he is a Dentist, that he is practicing alongwith his father who is also a Dentist, that the place where both of them running the clinic is to an extent of 150 sq.ft., that it is not sufficient to take his brother also and that the said place belongs to his father. It is further evident that two shops with Door No.4/1 & 4/B have been kept locked and his mother is not the owner of those shops and that court proceedings are going on with respect to them.
7.In the cross examination, he denies that only with the intention of increasing the rent, notice was sent and petition was filed for eviction of the respondent. He further adds that his brother has also obtained a decree in Dentistry, that both the brothers are jointly practicing dentistry and that Door No.4/1, 4/7 and 64/1 stands in the name of his father.
8.P.W.2 is B.D.S. Decree holder which is evident from Ex.P.4 and P.5. He says that he is practicing dentistry in the clinic alongwith his father and borther, that since he is married, he has to run clinic independently and hence his mother has filed the petition for his own use and occupation. He completed his course in 1994.
9.The learned Appellate Authority has rejected the claim of this petitioner by stating that even though P.W.2 had completed his course in 1995, after nine years, in 2004 the petitinoer has filed this eviction petition which shows her malafide intention to evict the respondent at any cost. Further, even though the landlord issued notice in 1992 itself for her own use and occupation, she has not taken any steps afterwards. In fact, in 1992, she issued the notice to the respondent. Her notice, Ex.R.1 states that she is engaged in a business of manufacturing coloured paper flowers from tissue paper and her paper wares are consisting of several decorative and ornamental items such as Joller, Diamond chain, Fancy chain, Bells & Balls and hence she required the said premises. It is true that in 1992, she required the premises for a different purpose and presently she has come forward with this eviction petition on the ground of her own occupation for her family members and her earlier claim will not in any way put an embargo for the present requirement.
10.It is vehemently contented on behalf of the respondent that the respondent business is a Partnership firm, that only this respondent has been impleaded without adding the other partners of the Partnership firm and hence the petition is bad for non-joinderof necessary parties. He has produced the Partnership Deed dated 18.08.1984 which shows that inclusive of this respondent, there are three partners. Significant it is to state that the Partnership firm has not been registered.
11.R.W.1, the respondent has categorically admitted in his cross examination that it is correct to state that his Partnership firm has not been registered. He has not mentioned in the earlier reply notice sent by him that he is running the shop on behalf of Partnership firm and that the proceedings should have been against all the partners. He further says that he is running the business on behalf of all the partners and that he has not mentioned anything about other partners in his reply notices. Since the Partnership firm has not been registered, it is not legal entity and there is no need to implead all the partners in the petition. It is sufficient to implead the respondent alone who is running the business on behalf of other partners. He also admits that the family members of the petitioners are running a clinic, however he does not know that how long they have been running as such, but for a long time.
12.It is settled that choosing a particular building is the choice of the landlord , if he owns more than one building. The tenant cannot command him to chose a particular building. It is not shown that the petitioner owns any other premises in the city. P.W.1 in his chief examination has stated that the premises in Door No.4/1 & 4/B do not belong to his mother. Even though exchange of notice and reply notices between the parties took place on various occasions, this Court could not ascertain any malafide intention on the part of the landlord to evict the tenant for the purpose of getting increased rent from him. On scrutiny of the evidence on record, it is seen that the petitioner bonafide requires the building for own occupation by her family members. It is also not shown that P.W.2 is occupying another building and carrying on his clinic in the city which is his own.
13.The learned counsel for the petitioner Mr.S.Parthasarathy would place reliance upon a decision of this Court reported in 2007 3 CTC 152 [Rasi Silks vs. Rasi Silks] for a preposition that even though there is no specific pleadings with regard to the relative hardships of the parties, still the petition for eviction cannot be stated to be not maintainable. The following is the operative portion of the judgment.
15.It cannot be said that there is lack of pleading and evidence about relative hardship. In any event, merely because lack of pleadings and vague pleadings about relative hardship, it cannot be said that Eviction Petition is not maintainable. By a reading of evidence of parties, it is seen that the parties have understood the case and adduced evidence and the contention of lack of pleadings cannot be countenanced.
14. In the petition, there is a pleading that if the petitioner is suffering from untold hardship since she could not find a shop for her son and if the eviction is not ordered, she would be put to irreparable financial loss and inconvenience. This has not been specifically denied in the counter and no pleading with regard to hardships which would be experienced by the respondent is available in the counter. When the circumstances are carefully weighed, it can be found that the hardships which would be experienced by the petitioner would outweigh those by the respondent.
15.In AIR 1999 SC 2507 [Shiv Sarup Gupta v. Mahesh Chand Gupta] Their Lordships have held that choosing a particular building for accomodation is the choice of the landlord. The important portion of the judgment goes thus:
Once the Court is satisfied of the bonafides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accomodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.
16.In 1994 (1) L.W. 441 [Sikkander Tukkarani v. P.Syed Abdul Kader @ Thaikka], this Court has observed that even assuming that the petitioner’s wife is owning another building for the requirement of the petitioner, he can always claim his own building under Section 10 (3) 9a) (i) of the Rent Control Act.
17.The learned counsel for the respondent Mr.A.K.Raghavalu would place reliance upon a decision of Supreme Court reported in 1984 (1) MLJ 1 [M/s.Variety Emporium vs. V.R.M.Mohd. Ibrahim Naina] wherein it is held as follows –
No authority is needed for the preposition that, in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the preceeding before it and mould the relief in the light of those events. Thus, when an action is bruoght by a landlord for the eviction of a tenant on the grond of personal requirement, the landlord’s need must not only be shown to exist at the date of the suit, but it must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceedings from Court to Court, if subsequent events occur which if noticed, would non-suit the landlord, the Court has to examine and evaluate those events and mould the decree accordingly. The tenant is entitled to show that the need or requirement of the landlord no more exists by pointing out such subsequent events, to the Court, including the appellate Court.
18.As far as the facts of the present case are concerned, the requirement of the demised premises has been shown as on the date of the petition and subsequently also. There is no subsequent events available in this case dis-entitling the petitioner from getting eviction order.
19.In 2003 MLJ 316 [Ayodhiraman v Subramaniam], this Court followed a decision of Supreme Court in Balaganesan Metals vs. M.N.Shanmugam Chetty and Ors. reported in AIR 1987 SC 1668 in which it is held that it is obvious that in so far as Section 10 (3) (c) is concerned, the Legislature has intended that the entire building irrespective of one portion being occupied by the landlord and other portions being occupied by a tenant or tenants should be viewed as a one whole and integrated unit and not as different entities.
20.Following the Apex Court decision, this Court in the case of A.P.Swamy v. Kunjithapadam, 1994 (2) L.W. 661 has held that when the landlord is in occupation of the entire first floor portion and the tenant is in occupation of the ground floor, the petition under Section 10 (3) (c) should have been filed and the petition for eviction under Section 10 (3) (a) (iii) of the Act is not maintainable.
21. Adverting to the fact of present case on hand, no such circumstances are available. Here the petitioner is not in occupation of any of the portion in the premises. In 2007 (1) CTC 477 [Kamesswaran, T.K. v. R.Santhanakrishnan], the landlord, a Chartered Accountant seeking premises for his personal office suppressing his employment particulars in pre-eviction petition notice as well as in his petition, who let out a bigger portion owned by him to Insurance Company, admits in evidence that portion under tenant’s occupation was originally car shed and measures only about 227 sq.ft. In the said situation, this Court has held that the requirement of the landlord was not bonafide. The facts of the said case are not applicable to the present case for the reason that the petitioner’s son is no way employed, but he is practicing dentistry alongwith his father. He is a qualified Dental Surgeon. The pleading that he has to run a separate clinic for which the demise premises is required appears to be genuine requirement and the petitioner, as a mother, requires the same in which bonafide could not be doubted.
22.To sum up, P.W.2, son of the petitioner is a qualified Dentist, completed his course in 1994, who is not having a separate place to run his clinic and the petitioner, for her son’s clinic, requires the demised premises, which requirement is bonafide. The findings, adverse to this, recorded by the Appellate Authority are not sustainable are liable to be set aside and they are accordingly set aside. The petitioner has established the case of bonafide requirement under Section 10 (3) (a) (iii) of the Act. This Civil Revision Petition deserves to be allowed.
23. In fine, the Civil Revision Petition is allowed. No costs. Time for delivery two months.
15.10.2009
Internet : Yes
Index : Yes
rgr
S.PALANIVELU, J.
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To
1. The VII Judge,
Small Causes Judge (Appellate Authority),
Chennai,
2.The XVI Judge,
Small Causes Court,
Chennai
PRE-DELIVERY ORDER IN
C.R.P. NPD No.224 of 2007
.10.2009