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1985 DIGILAW 497 (MAD)

Maganbai Galada v. Mool Chand Jain

1985-12-06

M.N.CHANDURKAR

body1985
JUDGMENT M.N. Chandurkar, C.J. 1. The revision petitioners are landlords whose claim for additional accommodation of premises in the occupation of the respondent was decreed by the Rent Controller, but that order has been set aside by the Appellate Authority. The petitioners are mother and her four sons who came to Court with a case that they had expanded their business and wanted to start a retail business in electrical goods. They are carrying on their business in the name and style of Ram Electrical Company. The tenant denied the bona fides of the need of the landlords. 2. On the evidence the Rent Controller found that the total turnover of the business has increased from Rs. 4,65,243.59 in 1977-78 to Rs. 12,04,683 in 1979-80. The Rent Controller also disbelieved the story put out for the first time in the evidence that the petition for eviction was made because the tenants did not agree to pay a sum of Rs. 10,000 as pagadi. The Rent Controller took the view that even though a notice was given before the proceedings by the landlords, no reply was sent and if the landlords had really demanded Rs. 10,000 as pagadi the reaction of the tenant would have been to say that the claim for eviction is being made because the tenant was not agreeable to pay the pagadi. Holding that the tenant himself had a premises at Perumal Maistry Street, the Rent Controller found that there could not be any hardship caused to the tenant by an porder of eviction. 3. The tenant filed an appeal against the order of eviction. The Appellate Authority however took the view that the contention that a retail business was to be started for settling the 5th petitioner was not substantiated because they had already averred that the petitioners 2 and 5 were carrying on business in electrical goods. The Appellate Authority also took the view that there was a portion in the form of hall which the Landlords could utilise for their expanded business. The Appellate Authority rejected the evidence of the landlords that the Will was being utilised for financial business. The Appellate Authority also took the view that there was a portion in the form of hall which the Landlords could utilise for their expanded business. The Appellate Authority rejected the evidence of the landlords that the Will was being utilised for financial business. The learned Judge also relied on 8 decision of this Court in Janab Abdhul Kadhar v. Husain Ali & Sons, in which this Court took the view that a wholesale and a retail business are not the same, though the retail business may be carried in the same articles in which the wholesale business was being carried on. Therefore, the Appellate Authority took the view that the landlords' claim that they wanted the premises by way of an additional accommodation was not bona fide. Accordingly, the set aside the order of the Rent Controller and dismissed the petition for eviction. 4. In this revision petition Mr. Sampath Kumar appearing for the petitioners has contended that there was no earlier occasion for the petitioners to state how the hall was being used and that the Appellate Authority was in error in taking the view that the petitioners 2 to 5 were admittedly carrying on business in electrical goods and therefore, the plea that a retail business has to be established should be rejected. The Learned Counsel also pointed out that the rejection of the claim of the petitioners on the ground that the petitioners did not want the premises for additional accommodation for the wholesale business was not justified. 5. Now at the very outset when the Appellate Authority, took the view that the petitioners were carrying on a financial business in the hall portion in the ground floor was absolutely a false one, he was influenced by the fact that the running of a financial business in the ground floor was not referred to in the notice Ex. R1. It must be remembered that as there was no occasion for referring to that use to which the hall was being put in the notice Ex. R1, the petitioners were not bound to account for the use of every inch of space at the moment in their possession and the question about the manner in which the hall was being used arose only in the course of the evidence when the tenant cross-examined the witness of the landlords. R1, the petitioners were not bound to account for the use of every inch of space at the moment in their possession and the question about the manner in which the hall was being used arose only in the course of the evidence when the tenant cross-examined the witness of the landlords. The trial Court had accepted the evidence that the financial business was carried on in the hall portion and apart from this it is difficult to see how a retail business can be carried on in one part of the building which forms the hall referred to by the appellate authority. Retail business must always be carried on at a place which is easily accessible and it can be seen by persons from outside and it is well-known that an internal part of a building is unsuited for a retail business. Equally unsupportable is a finding by the Appellate Authority that the story that retail business has to be started should be rejected. An owner of a business in a house is not prevented from expanding his business. When the petitioners who were already carrying on a wholesale business think of also starting a retail business and if that retail business is now to be looked after by petitioner No. 5, the business did not cease to be belonging to the petitioners. The fact that the petitioners were carrying on business in electrical goods was therefore, not inconsistent in any way with their intention to carry on a retail business in the same goods. The decision on which reliance has been placed by the learned Judge shows that in that case the learned Judge construed the retail business as independent of the accommodation utilised for a wholesale business. The mere fact that in that case, the learned Judge proceeded to decide the need for a retail business as not one for additional accommodation because the case as one for additional accommodation was not any where canvassed or considered did not prevent the appellate authority from considering the claim of the petitioners as one for additional accommodation. The mere fact that in that case, the learned Judge proceeded to decide the need for a retail business as not one for additional accommodation because the case as one for additional accommodation was not any where canvassed or considered did not prevent the appellate authority from considering the claim of the petitioners as one for additional accommodation. The facts of the decision in Abdul Khadar's case (1962) 2 M.L.J. 446 , will disclose that it appeared to be a common ground that the case was not one where Section 7(8)(c) of the 1949 Rent Control Act came up for operation and when that decision did not expressly refer to the controversy whether such a case did or did not fall within Section 7(3)(c) of the old Act which corresponds to Section 10(3)(c) of the present Act, that decision cannot be taken as an authority for the proposition that a person who runs the wholesale business cannot ask for additional accommodation on the ground that he also intends to have identical business in retail. In so far as the argument that pagadi has been demanded is concerned it is to be noticed that even in the counter statement filed before the Rent Controller, there is no reference to such a demand and it was obvious that when such a demand is referred for the first time in the course of the evidence, it had to be rejected as an after thought. In any view, the judgment of the Appellate Authority is difficult to be sustained and is, therefore, set aside. 5. Accordingly, the revision petition is allowed and the judgment of the Appellate Authority setting aside the order of the Rent Controller is set aside and the petitioners' petition for eviction will, therefore, stand allowed as held by the Rent Controller. In view of the fact that there is no appearance on behalf of the respondent, there will be no Order as to costs.