JUDGMENT
S.M. Abdul Wahab, J.
1. C.R.P.No. 2673 of 1996 is against the fair and decretal order in R.C.A.No. 5 of 1994, dated 27.8.1996 on the file of the Subordinate Judge, Trichy (Rent Control Appellate Authority) confirming the order of the District Munsif (Rent Controller), Trichy in R.CO.P.No. 285 of 1986, dated 30.11.1993.
2. C.R.P.No. 2674 of 1996 is against the order dated 27.8.1996 in R.C.A.No. 6 of 1994 on the file of the Subordinate Judge (Rent Control Appellate Authority) Trichy, confirming the order of the District Munsif (Rent Controller) Trichy in R.CO.P.No. 39 of 1987, dated 30.11.1993.
3. These two revision petitions arise out of a common order dated 27.8.1996. The petitioner in both the civil revision petitions is the same person i.e., the tenant, in respect of a building. The respondents are also the same persons in both the revision petitions and they are the landlords.
4. R.CO.P.No. 285 of 1986 was filed for eviction on the ground of default, own as well as additional occupation. R.CO.P.No. 39 of 1987 was filed by the tenant for deposit of the rents under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960.
5. The case of the landlords was that the petitioner is a tenant in respect of the building bearing door No. 57 (Southern Portion) E.B. Road, Trichy-8, on a monthly rent of Rs. 300. The rent was paid upto 1985. He committed default from 1.1.1986 to September, 1986. Originally the petitioner became tenant under Mariyayee Ammal. One T.K. Sankaran, agent was collecting the rent. After the death of Mariyayee on 3.4.1986, the petitioner failed to pay the rent. Mariyayee left a will in favour of the respondents on 27.4.1974. The building is required for the oil business of the family. They have no other building in the city of Trichy. Notice was sent on 6.8.1986. It was returned. There is no relation of tenant and landlord between the fourth respondent and Mariyayee.
6. The fourth respondent S. Ashok Kumar filed a counter. According to him he was not a tenant. The tenant was his brother i.e., Thangaraj, who was paying rent to Mariyayee. From 1.8.1973 to 15.3.1979 rent was paid to the father of the respondents 1 to 3. In 1980 Marayee has received rent from Thangaraj. When rent was sent by Thangaraj to the father of the respondents 1 to 3, it was refused. Hence, Thangaraj petitioner has filed R.CO.P.No. 39 of 1987 for depositing the rent into court.
7. The second respondent, the petitioner herein also filed a counter stating that he is the tenant and when the father of the respondents refused to receive the rent, he has filed R.CO.P.No. 39 of 1987. He has deposited the rent in the said case. There is no default in payment of rent. The respondents are not carrying on any business. Therefore, there is no necessity for own or additional accommodation. He has also stated that the rent was only Rs. 175 and not Rs. 300.
8. The Rent Controller took up, both the petitions for eviction as well as deposit of rent together and passed a common order holding that the respondents are entitled for eviction in R.CO.P.No. 285 of 1986 and dismissing the R.CO.P.No. 39 of 1987.
9. The petitioner filed two appeals-before the appellate authority i.e., R.C.A.Nos. 5 and 6 of 1994, one against the order of eviction and the other against the order dismissing the petition for deposit. The appellate authority dismissed both the appeals. Hence, the respondent has preferred these two revision petitions.
10. The petition for deposit and the appeal relating to it were dismissed on the ground that the petitioner has failed to prove that he is the tenant of the building. The Rent Controller has found that the petitioner is not the tenant and the agreement of tenancy is in favour of his brother one S. Ashok Kumar. The petitioner has never paid the rent to the respondent’s mother. It has also found that the building was required for own use i.e., for the business of the father carried at Gandhi Market.
11. The appellate authority considered four points, namely, whether the petitioner is the tenant, what is the rent, whether the petitioner committed default and whether the building was required for additional accommodation.
12. After considering the above points, the lower appellate court found that S. Ashok Kumar is the tenant and the rent was Rs. 300. It has also found that wilful default was committed and that the building was required for the business of the father.
13. In the civil revision petition, the learned Counsel for the petitioner Thiru N. Thiagarajan, vehemently contended that the finding of the courts below that the petitioner is not the tenant is incorrect. He has also contended that there was no threat from the owner of the building wherein the father of the respondents is carrying on business.
14. As regards the contention that the petitioner is not a tenant, the contention is that the agreement dated 11.7.1973 i.e., Ex.A-5 was S. Asokan. It is not disputed that the petitioner is none other than the brother of said S. Asokan. P.W.1 is the father of the respondents. He has admitted that the rents were paid and the payment was entered in a book. Even though, he has admitted that the agreement was signed by the said Ashok Kumar and his wife as well as himself as the witness, he has stated that he does not know as to where the said Ashok Kumar was carrying on business at the time of the rental agreement. Further, he has stated that he does not know whether the said Ashok Kumar, the brother of the petitioner is carrying on business or not. Another statement given by him is that he knows about the petitioner from 1985-86. Again he has stated that he does not know whether his wife Mariyayee received the rent from the petitioner. But however, he has admitted that the rent sent by Thangaraj was received by Mariyayee. Apart from this P.W. 1 no other witness has been examined.
15. R.W.1 S. Thangaraj, his evidence has categorically stated that himself and his brother Ashok Kumar were carrying on business together. First his brother was paying the rent, thereafter, his brother executed the rent chit in favour of Mariyayee Ammal. He alone was carrying on the business. Rent is Rs. 175 only, rent was collected by both Mariyayee Ammal and P.W.1. He has produced Exs.B-3 to B-7 money order coupons. As she refused to receive the rent, he sent Ex.B-8.
16. R.W.2, S. Ashok Kumar has stated that he took the building for lease for his brother. Brother alone is carrying on business. From 1973, he is carrying on the business and the licence, the profession and telephone were in his name. Even though he executed the lease agreement, his brother is paying the rent. Mariyayee Ammal used to receive the rent from him and the rent book (Kutcha book) was taken away by the respondents. From the oral evidence, the facts to be noted are that the rent was paid by R.W. 1 and he alone is carrying on the business in the petition building. The original owner Mariyayee Ammal has received the rent from the petitioner R.W.1. The evidence of P.W.1 is unbelievable because, he himself has stated that the petitioner was carrying on business at the time of the rental agreement. He has also stated that he does not know whether the petitioner is carrying on business or not. P.W.1 has admitted that he was collecting rent on behalf of Mariyayee Ammal. If the petitioner was not carrying on business, he could have asserted that fact. But by saying that he was not carrying on business at one place and at another place he does not know as to who carries on business, shows that he is not speaking the truth. No other independent witness has been examined to show that the petitioner is not carrying on business in the building in question.
17. Much reliance is placed on Ex.A-2 a notice sent by Ashok Kumar, brother of the petitioner to Mariyayee Ammal. In the said notice, it is stated that he is the tenant and the rent sent by him for February, March, April, and May, 1992 along with the said notice. He has also stated that Mariyayee Ammal demanded higher rent. As the agent did not turn up to collect the rent, it was sent by money order to Mariyayee Ammal and they were refused. It was also stated that steps are taken to deposit the rent. Ex.A-3 is the reply dated 14.6.1982. In the said notice, it is stated that the matter was settled. Ex.A-7 is the notice dated 13.9.1986 sent by the respondents’ mother Mariyayee Animal to S. Ashok Kumar “Lucky Star Oil Company.” Ex.B-8 is a notice sent by the petitioner to the respondents on 5.12.1986. It is stated therein that the petitioner was paying the rent to Mariyayee Ammal till December, 1985. As the rents were tendered to Sankaran, father of the respondents and refused by him, the rent for January, 1986 to November, 1986 were sent by draft. For this, the reply is Ex.B-9. In the said notice, the petitioner’s status as tenant was denied. It is stated that Ashok Kumar alone became the tenant for premises No. 57. It is stated in the said reply that his brother Ashok Kumar was the tenant and the petitioner was not at all a tenant and the rents were never received from the petitioner. Exs.A-9 to 11 are money order coupon. As we have seen already, P.W.1 has admitted that the money order sent by Thangaraj was received. From Exs.B-11 to B-16, it can be safely inferred that Thangaraj is carrying’ on business at No. 57 E.B. Road, Tirchi, from 1973 onwards, and the name of the business is “Lucky Star Oil and Motor Oil” at No. 57, East Puliyur Road, Trichi. The aforesaid documents are official records.
18. Even though the rent deed was executed by the brother of the petitioner, the petitioner alone is carrying on the business in the rental building. As admitted by P.W.1 the rent has been received by him also. Therefore, the necessary interference is that even though the rent deed was executed in favour of one brother, the business is carried on by another brother. He is not a stranger and it cannot also be termed as a case of sub-tenancy. Therefore, the petitioner cannot be termed as a stranger and has nothing to do with the tenancy, Factually he has been carrying on business in the rented premises by paying rent. It is also worthwhile to mention that in paragraph 8 itself, the respondents have categorically stated that the tenancy has been oral except for the initial period of one year when the tenancy commenced from 11.7.1973. In such circumstances, the respondents cannot rely upon Ex. A-5 alone and contend that Ashok Kumar alone is the tenant because, he has executed Ex.A-5. As the tenancy has been oral in the beginning as admitted by the respondents from 1974 onwards and rents have been received from the petitioner by Mariyayee Ammal herself as per the admission of P.W.1 and the Exs.B-3 to B-7 the notice sent by Ashok Kumar cannot be taken advantage of and contend that Ashok Kumar alone is the tenant. The notice under Exs.A-2 and A-7 would only show that S. Ashok Kumar alone is the tenant, because even in those two documents “Lucky Star Oil Company” is mentioned. In effect these two notices relate to “Lucky Star Oil Company” From Ex.B-15, it is clear that the petitioner is carrying on business under the name and style of “Lucky Star Oil & Motor Oil” under a licence from the Sales Tax Department from 27.9.1973. In these circumstances, it is very difficult and unjust to hold that the petitioner is not the tenant in respect of the building namely, 57, E.B. Road, Trichi. In my view, the Courts below have not adverted to the vital documents like Exs.B-3 to B-6 and B-H to B-16. Ex.B-15 has been rejected stating that the original was not filed. That cannot be a reason for rejecting a document. Since the document has been admitted, it cannot be rejected on the ground that original was not produced, and it is also not stated under what condition the said document was admitted marked and given a number. Therefore, the finding of the courts below cannot be sustained.
19. The learned Counsel for the respondents relied upon a latest decision of this Court reported in M/ s. Boston v. Akbar , wherein a learned single Judge has held that if finding are rendered by the Rent Controller one way or the other and affirmed by the appellate authority after evaluating the evidence, While exercising powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court is not entitled to reverse those findings of fact. In my view, the learned Judge has carefully worded the principle. If the evidence has been evaluated properly, the court’s power is restricted, if there is no evaluation of certain evidence, it is the duty of the court to interfere, otherwise the revisional jurisdiction of this Court under Section 25 of the Act is not exercised at all. The purpose of Section 25 is for interference by this Court. However, the interference is on certain conditions laid down in the said section. This Court is bound to interfere when it is not satisfied with the legality of the decision rendered by the Rent Controller and the appellate authority. Here, the illegality is apparent, as mentioned above, when the courts below have failed to consider the vital documents.
20. As regards the default, according to the Courts below, since there was no tendering of rent by S. Ashok Kumar, who alone is the tenant, there is default. They have not taken into account the money order sent by the petitioner and also the notice sent by him under Ex.B-8 and the filing of the petition for deposit of rent i. e,, R.C.O.R.No. 39 of 1987. Since the rent has been deposited as per the orders in R.CO.P.No. 39 of 1987, the question of default does not arise at all.
21. The next important question is the ground of owners occupation. In the petition in paragraph 13, the petitioners/landlords have stated that Oil and Maligai business are carried on at No. M.S.40, Gandhi Market Building, belonging to Trichirapalli Municipality. In paragraph 14, it is stated that the entire door No. 57, E.B. Raod, Trichirapalli, is required for the conduct of the aforesaid joint family business of Oil and Maligai. P.W.1 has not stated any where in his evidence that the said building No. 57, E.B. Road, is required for shifting the business from Gandhi Market. There is also no evidence that the respondents are under threat of eviction. In the cross-examination also he has not stated that the building is required for shifting the business from Gandhi Market. On the other hand, it is stated that it is required for the additional accommodation. That apart, at the end of the cross-examination, P.W.1 has stated that there is a business in Gandhi Market, it is in a rented building and it is a hotel. He has also admitted that he is not carrying on business at No. 57 E.B. Road. The evidence of P.W.1 is contrary to the allegations contained in the petition itself. In the petition, it is stated that the building is required for carrying on business in Maligai and Oil at Gandhi market, but in the evidence, P.W. 1 has stated that he is carrying on hotel business in the Gandhi Market. The rent control appellate authority has stated that R.W. 1 has admitted that P.W. 1 is having a hotel business at Gandhi Market. The appellate authority has also admitted that accepting the evidence of R.W.1 that hotel business is running in Gandhi Market and the building belongs to the Corporation. As we have seen already P.W.1 has not stated the reason as to why he wants to shift his hotel business from Gandhi Market to the building in question. It is clear that the respondent have not proved that they require the building in question for the purpose of shifting the business, hence requiring for own occupation, is not established.
22. As regards the additional accommodation, P.W. 1 himself has categorically stated that they are not carrying on the hotel business at’ No. 57, E.B. Road, Trichi, under the name and style of “Meena Eating House”. It is also not known whether the respondents are doing any other business at No. 57, E.B. Road, Trichi. In the circumstances, the question of additional accommodation does not arise at all. The respondents case appears to be that since there is already a shop vacant and the business to be started cannot be accommodated in that vacant portion alone, they require the petition building also for the business to be started. Section l0(3)(c) of the Act cannot be attracted in such contingencies. The ingredients require in that is the landlord is occupying only a part of the building and he must require additional accommodation for the said business. If there is no business at all, the question of accommodating the non-existing business in the building occupied by a tenant does not arise at all.
23. The decision relied upon by the lower appellate Court reported in Shivaji Rao v. Bhujanga Rao 1974 T.L.N.J. 183 is not helpful to the respondent/landlords. In the said case, in the same main building independent and different door numbers are there, but in the case on hand the business is said to be carried on altogether in a different locality and not in the very same building where the tenant is carrying on business. Therefore, the said decision has been wrongly quoted by the appellate authority.
24. On consideration of the above facts and circumstances of the case, I am of the view that the courts below have erred in their decision. Therefore, the fair and decretal order of the Rent Controller as confirmed by the Rent Control Appellate Authority is set aside. The civil revision petitions are allowed. However, there will be no order as to costs. Consequently, C.M.P.No. 14755 of 1996 is dismissed as unnecessary.