ORDER
Thanikkachalam, J.
1. The tenant is the petitioner herein. The landlord filed the petition for eviction against the tenant for 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 referred to as ‘the Act’). The tenant is in occupation of the godown in premises No. 36, Subramani Mudali Street, Madras-600079, belonging to the landlord on a monthly rent of Rs. 750. The premises is let out for non-residential purpose. According to the landlords they are carrying on business in oil cake in a rented premises at door No. 3, Thatha Muthiappan Street, Madras-1 as a wholesale dealer under the name and style of ‘Arvind Traders’. According to the landlords they are not in possession of any other non-residential premises of their own in the city of Madras. Therefore the landlords required the petition premises bona fide for conducting their business, which he is now carrying on in a rented premises. The tenant filed a counter stating as under.
2. It is true that the tenant is in occupation of a portion of the petition premises on a monthly rent of Rs. 750. Originally the petition premises belonged to one Jayaraman. He was residing in the first floor. The rain water from the upstair portion has got to be drained through the portion under the occupation of the tenant. There was stagnation of drain water in the portion occupied by the tenant. Hence a request was made by the tenant to the landlord to clear the drain water. Aggrieved over this, the said Jayaraman filed a petition for eviction against the tenant on the ground of wilful default in payment of rent in R.C.O.P. No. 2593 of 1983. During the pendency of the eviction proceedings Jayaraman Doss died. The petitioners herein who are brothers claiming to be the legal heirs of Jayaram Doss, conducted the said eviction proceedings. Thereafter, the eviction petition was dismissed. Aggrieved over that they now came forward with the present petition for eviction against the tenant. Both the brothers appointed the petitioners herein as their power of attorney agent to collect the rent. The petition for eviction was filed by the said power of attorney. In the recent past the shutters in the godown was not working properly. Hence a request was made to the landlord to repair the shutters. But that was not done. The petition premises is a godown and in the godown the landlord cannot conduct his business in selling the oil cakes. There are other owners for the petition premises. They are not impleaded as parties in the eviction petition. Therefore, it was prayed that the petition is liable to be dismissed.
3. The petitioner examined himself as P.W.I. The respondents examined one witness on their side. The landlord filed 13 documents and the tenant filed seven documents. Considering the facts arising in this case, the Rent Controller came to the conclusion that the landlords established their bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly, eviction was ordered. Aggrieved, the tenant filed an appeal before the Rent Control Appellate Authority. Considering the facts arising in this case, the Rent Control Appellate Authority confirmed the order of eviction passed by the Rent Controller and dismissed the appeal filed by the tenant. It is against that order, the present revision is preferred by the tenant.
4. Learned Counsel appearing for the petitioner/tenant submitted as under:
The landlord failed to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. The landlords are in occupation of the first floor and the tenant is in occupation of the ground floor. The tenant is using the petition premises for non-residential purposes, and the landlord is using the upstair portion for residential purpose. According to the landlords they are carrying on their business in selling oil cakes in the rented premises at No. 3, Thatha Muthiappan Street, Madras-79 and for the purpose of conducting the said business they required the petition premises under Section 10(3)(a)(iii) of the Act. Since the portion under the occupation of the tenant is part of the building in the occupation of the landlords petition under Section 10(3)(a)(iii) of the Act is not maintainable. The landlords ought to have filed the, petition for eviction under Section 10(3)(c) of the Act. The landlords failed to prove and establish their dire need or necessity for occupation. The landlords have not chosen to occupy the portion vacated by J. Sreenivasalu and Company and if the said fact is taken into consideration the authorities below ought to have rejected the application for owner’s use and occupation. The portion under the occupation of J. Sreenivasulu and Company was vacated on 1.9.1990 and was let out to Y.F.S. Traders on a monthly rent of Rs. 1,000 by gaining a sum of Rs. 400 in the process of new lease. If the need of the landlords is genuine or just claim the landlords would have occupied the portion vacated by J. Sreenivasulu and Company which is larger than the petition premises and which is also ideal for the landlords to occupy and carry on his business. The landlords have not placed any clinching evidence to show that the portion vacated by Sreenivasulu and Co., was not sufficient or ideal for starting their business nor placed any material before the court below to show as to why the portion which fell vacant during the pendency of the eviction proceedings was not occupied by the landlords. The authorities below ought to have taken into consideration the subsequent events which took place in the present case. In view of the decision reported in Smt. Mahadevi v. Goutam Chand Jain 100 L.W. 612 and the decision reported in Variety Emporium v. V.R.M. Mohd. Ibrahim Naina 98 L.W. 26. The petition for eviction was filed by one co-owner and the consent of the others was not obtained at the time of filing of the petition. Letter dated 20.5.1987 Ex. P-13 was obtained at a later stage in order to overcome the legal impediment. The said letter authorises the respondent only to collect the rent. But that will not enable him to initiate any proceedings before the Rent Controller. The authorities below failed to note that Manoharan has been working as an accountant with Nandagopal Chetty and as such he is not doing any real business. The successive eviction petitions filed by the landlord would go to show that there is no bona fide on the part of the landlord in filing the present petition for eviction. The landlord has not produced any documentary evidence to show that he was purchasing and selling the goods as alleged by him. It was therefore pleaded that the authorities below were not correct in ordering eviction under Section 10(3)(a)(iii) of the Act and hence the order of eviction is liable to be set aside.
5. On the other hand, learned Counsel appearing for the respondent/landlords submitted as under:
The landlords are in occupation of the upstair portion and the downstair portion is let out to the tenant to be used as a godown. The landlords are carrying on their business in selling oil cakes in the rented premises at No. 3, Thatha Muthiappan Street, Madras-79. The landlord wanted to do his business in the portion occupied by the tenant. Since the landlord does not want the portion under the occupation of the tenant for his residential purpose and since the landlords wanted the portion under the occupation of the tenant for the purpose of conducting his business the petition filed under Section 10(3)(a)(iii) of the Act is maintainable. In the abovesaid circumstances petition under Section 10(3)(e) cannot be filed. The landlords established that he is carrying on his business in a rented premises and he has no other non-residential premises of his own in the City of Madras. Therefore, he bona fide required the petition premises under v Section 10(3)(a)(iii) of the Act. Even though the petition premises belong to more than one person, all the co-owners gave consent letter for filing the present petition for eviction. The fact that the consent letter was filed subsequently would not affect the maintainability of the petition for eviction. The petition filed by the power of attorney agent of the landlords is perfectly maintainable. It is not for the tenant to suggest which portion would be suitable for the landlords to conduct their business. The landlords established that their business in the rented premises has expanded and therefore he required the petition premises for the purpose of conducting his own business. Both the authorities below on considering the facts arising in this case, concurrently came to the conclusion that the. requirement of the petition premises by the landlords is bona fide under Section 10(3)(a)(iii) of the Act. Hence, no interference is called for.
6. I have heard the rival submissions.
7. The fact remains that the tenant is in occupation of the ground floor of the premises at No. 36, Subramani Mudali Street, Madras-79. The upstair portion is in the occupation of the landlords. According to the landlords they are using the upstair portion for their residential purpose and the tenant is using the downstair portion as a godown. It means the upstair portion is being used by the landlords as their residential portion and the ground floor is being used as godown, i.e., for non-residential purpose by the tenant. According to the landlords they are carrying on their oil cake selling business in a rented premises at No. 3, Thatha Muthiappan Street, Madras-1 and they wanted the petition premises to conduct their business. It is the contention of the landlords that since the portion under the occupation of the tenant is a nonresidential one and since the upstair portion is being used by them for residential purpose they cannot file a petition under Section 10(3)(c) of the Act. According to the landlords since they are carrying on their business in a rented premises and inasmuch as they wanted the petition premises to conduct their business which they are carrying on in a rented premises the petition for eviction can be filed under Section 10(3)(a)(iii) of the Act. Admittedly in the premises at No. 36, Subramani Mudali Street, Madras-79 the upstair portion is being used by the landlords for their residential purpose and the downstair portion is being used by the tenant for non-residential purpose as a godown. Therefore, the downstair portion is part of a building situate at No. 36, Subramani Mudali Street, Madras-79. According to the landlords since they require the nonresidential premises under the occupation of the tenant for the purpose of conducting their business which they are carrying on in a rented premises at No. 3, Thatha Muthiappan Street, the petition for eviction can be filed under Section 10(3)(a)(iii) of the Act. This contention cannot be accepted because Section 10(3)(c) of the Act states as under:
A landlord who is occupying only a part of a building whether residential or non-residential may, notwithstanding anything in clause (a) apply to the Rent Controller for an order directing any tenant occupying a whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation.
In the present case, admittedly the landlords are in occupation of the upstair portion. They are using the same for residential purpose. They require the downstair portion of the building, which is used for non-residential purpose by the tenant. In such a case irrespective of the fact that tenant is using the downstair portion for non-residential purpose or for residential purpose, if the landlords want the downstair portion for non-residential purpose they can file a petition for eviction only under Section 10(3)(c) of the Act and the provisions of Section 10(3)(a)(iii) of the Act will not be applicable to the facts of the case.
8. A similar situation came up for consideration before the Supreme Court in the case of Sri Balaganesan Metals v. M.N. Shanmugham Chetty (1989) 1 M.L.J. 4 (S.C.), wherein while considering the provisions of Section 10(3)(a)(i) of the Act and Section 10(3)(c) of the Act, the Supreme Court held as under:
It is no doubt true that under Section 2(2) a building has been defined as not only a building or hut but also part of a building or hut let separately for residential or non-residential purpose. That would, however, only mean that a part of a building which has been let out or which is to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the legislature itself by providing that the application of the definition is subject to the contextual position. Therefore, it follows that where the context warrants the entire building being construed as one integral unit, it would be inappropriate to view the building as consisting of several disintegrated units and not as one integrated structure. Secondly there is no vast difference between the words ‘residential building’ and non-residential building’ used in Section 10(3)(a)(i) and (iii) on the one hand and Section 10(3)(c) on the other. While Section 10(3)(a)(i) and (iii) refer to a building only as residential or non-residential, Section 10(3)(c) refers to a landlord occupying a part of a building, whether residential or non-residential. Further more, Section 10(3)(c) states that a landlord may apply to the controller for an order of eviction being passed against the tenant “occupying the whole or any portion of the remaining part of the building”. If as contended by the appellant each portion of a building let out separately should always be construed as an independent unit by itself then there is no scope for a landlord occupying a part of a building’ seeking eviction of a tenant occupying the whole or any portion of the remaining part of the building. It is therefore, 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 a tenant or tenants should be viewed as one whole and integrated unit and not as differententities. The third factor militating against the contention of the appellant is that if a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation for the landlord either for residential or non-residential purpose.
It was further held in the abovesaid decision as under:
Having regard to the object of Section 10(3)(c) and the terms in which it is wordedthere is warrant and justification for holding that the non obstante clause has been provided to have overriding effect over both the restrictions placed by Section 10(3)(a)(i) and (iii) viz., landlord seeking eviction of a tenant should not be occupying a building of his own and secondly the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord.
Thus a plain reading of the provisions contained in Section 10(3)(c) of the Act in the light of the abovesaid decision of the Supreme Court would go to show that in the present case the petition filed by the landlord under Section 10(3)(a)(iii) of the Act is not maintainable on the facts available on record.
9. The tenant is a partnership firm. The tenant filed Ex. R-7 which would go to show that the tenant is a partnership firm consisting of several partners. One of the partners was not included in the petition. In a petition for eviction it is for the landlord to implead all the partners for an effective adjudication. This fact was brought to the notice of the landlord after the tenant filed Ex. A-7. In spite of the fact that the tenant brought to the notice of the landlords that one of the partners was not impleaded, no steps were taken by the landlords to implead the fifth partner in the eviction proceedings. This defect can be cured at any stage. But no steps were taken by the landlord to cure this defect.
10. It is the contention of the tenant that after the eviction petition was filed a portion under the occupation of another tenant Sreenivasalu and Company fell vacant on 1.3.1990 and that was let out to M/s. YPS Traders on a monthly rent of Rs. 1,000 by gaining a sum of Rs. 400 in the process of new lease. The tenant contended that if the landlord really required any portion for conducting his business which he is now carrying on in a rented premises, he could have occupied the said portion instead of letting out to a third party on a higher rent. The tenant further pointed out that the portion vacated by M/s. Sreenivasalu and Co., is bigger than the portion in the occupation of the tenant herein. It is no doubt true that it is not for the tenant to suggest which of the portion the landlord should occupy and the sufficiency of the said portion. But it remains to be seen that in the present case, the tenant categorically stated that the portion occupied by M/s. J. Sreenivasulu and Co. fell vacant after the petition for eviction was filed and that was let out to a third party on a higher rent. The landlord has not come forward with any explanation to prove that the portion which fell vacant subsequently is not fir for his occupation. As per the decisions rendered in Smt. Mahadevi v. Goutam Chand Jain 100 L.W. 612 and Variety Emporium v. WRM Mohd. Ibrahim Naina 98 L.W. 28, the subsequent events can be taken into consideration in the matter of considering the bona fide requirement of the landlord. This would go to show that there is lack of bona fide on the part of the landlord in requiring the petition premises. Learned Counsel for the tenant submitted next that the co-owners gave their consent letter dated 20.5.1987 only at a later stage and such consent letter was not given at the time of filing the eviction petition. Ex. P-13 is the consent letter dated 20.5.1987. The consent letter which was filed subsequently held good for conducting the eviction proceedings on behalf of the other co-owners. But the said letter was not available at the time of hearing to verify whether the consent was given only to collect the rent from the tenant and not for filing the eviction proceedings as submitted by the learned Counsel for the tenant. A doubt was raised by the learned Counsel appearing for the petitioner that Nandagopala Chetty is carrying on business at No. 3, Thatha Muthiappan Street, Madras and there is no evidence on record to show that the landlords are carrying on their business at the said premises. Sufficient materials were not placed before this Court for deciding the said aspect. However, the petition for eviction was filed by the landlord through their power of attorney agent under Section 10(3)(a)(iii) of the Act. In order to obtain an order of eviction under Section 10(3)(a)(iii) of the Act the landlord should not only prove that they are not in occupation of any other non-residential premises of their own in the City of Madras and that they are carrying on their business in the rented premises, but they should also prove the bona fide as contemplated under Section 10(3)(c) of the Act. In Hameedia Hardware Stores v. Mohanlal Sowcar , the Supreme Court while considering the provisions of Section 10(3)(a)(iii) read with Section 10(3)(e) of the Act 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 bona fide, a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a 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 fides of the landlord’s requirement or need. The word ‘claim’ in clause (a) 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 bona fide. 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.
In the present case no attempt was made to establish the bona fide requirement of the landlords as contemplated under Section 10(3)(e) of the Act. Therefore, even on merits the landlords are unable to establish their bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. The revision was dealt with on merits for the sake of completeness. The authorities below failed to consider many of the legal points arising in this case. Their approach is against law on this subject. Therefore the order of eviction passed by the authorities below is unsustainable. Hence, the revision is allowed. The order of eviction passed by the authorities below under Section 10(3)(a)(iii) of the Act is set aside, and the petition for eviction is dismissed. No costs.