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1988 DIGILAW 448 (MAD)

B. S. Ramamoorthy v. O. S. Parasanathachary

1988-11-17

SRINIVASAN

body1988
ORDER Srinivasan, J. 1. The tenant, who has suffered an order of eviction before the authorities below has filed this revision petition. The respondent sought eviction on two grounds, viz., wilful default in payment of rent and requirement for additional accommodation for purposes of his business. The Rent Controller granted eviction on both the grounds while the appellate authority reversed the finding of the Rent Controller on the question of wilful default, but confirmed the finding on the ground of additional accommodation. 2. In the petition for eviction, it is stated in paragraph 12 that the landlord requires the petition building for purposes of manufacturing and repairing shoes as an adjunct of the show mart which he is running in the extreme west of the same building. It is further stated that the portion in which the shoe mart is being run is about 13 feet x 12 feet, and it is barely sufficient to use show room and for keeping the goods. It is also averred that there is no space available for manufacturing and repairing of shoes and that the landlord wants to expand his business. In the counter statement there is a general denial of the averments found in the petition. But, there is no specific denial by the tenant. He had merely stated that it was false to allege that the portion occupied by the tenant was required by the landlord for alleged additional accommodation and that the claim of the landlord was not a bona fide one. 3. In the evidence, the landlord deposed as P.W.1 that he required the entire portion for his purposes. He stated that he was having a shoe mart and the portion in the occupation of the tenant was required as additional accommodation. In the cross examination it was elicited from P.W.1 that he retired from Meenakshi Mills in 1970-71 and the shoe mart was opened on 20-11-1980. It was also elicited that the show mart was being run by his wife. Ex-B-2 is the invitation for the opening of the shoe mart and it is produced by the tenant himself. P.W.1 admitted that it was necessary for him to purchase leather for the purpose of manufacturing shoes. He also admitted that there was no job card for repairs of shoes and that he had not commenced manufacture of the shoes. The tenant gave evidence as R.W.1. P.W.1 admitted that it was necessary for him to purchase leather for the purpose of manufacturing shoes. He also admitted that there was no job card for repairs of shoes and that he had not commenced manufacture of the shoes. The tenant gave evidence as R.W.1. He stated that the shop in the occupation of the landlord measured only 11' x 7'. Thus, according to the evidence of the tenant, the area occupied by the landlord was much less than the area mentioned in the petition for eviction. A reading of the entire evidence of P.W.1 along with the pleadings of the parties shown that the requirement for additional accommodation for the purpose of manufacturing and repairing shows is a bona fide one. At any rate it cannot be said that the acceptance of the evidence of P.W.1 by the authorities below is erroneous. 4. Learned Counsel for the petitioner places reliance on the judgment on Ratnam, J. in P. Annakili Animal and Anr. v. C. Hussain and Hassan and Anr. 97 L.W. 116. In that case, additional accommodation was required on the ground of expansion of business. But, in the evidence it was stated that the additional accommodation was required for purposes of having a direct access from the flour mill run by the landlady to the main road. In that context, the learned Judge made the following observations: The next contention of the learned Counsel for the petitioners require the premises in the occupation of the first respondent as and by way of additional accommodation for purposes of their own flour mill business. In the application for eviction, the petitioners have stated that the flour mill does not have access directly from the main road. It is seen from the evidence that the petitioners are running a flour mill behind the tea shop let out to the first respondent. The petitioners claimed that they require the premises in the occupation of the first respondent to accommodation their expanding and enlarging business as well. In the evidence, it is seen that the petitioners have also stated that if the first respondent vacates the premises in his occupation that would enable them to have direct access to their mill from the main road. Admittedly, the flour mill premises is now having the access from a lane by name inspector Subburayulu Mudali Street. In the evidence, it is seen that the petitioners have also stated that if the first respondent vacates the premises in his occupation that would enable them to have direct access to their mill from the main road. Admittedly, the flour mill premises is now having the access from a lane by name inspector Subburayulu Mudali Street. Under Section 10(3)(c) of the Act, the requirement as and by way of additional accommodation for non-residential purposes as in this case should be for purposes of a business. The expression "...accommodation... for purposes of a business which the landlord is carrying on. Plainly, this contemplates only cases where the requirement of the landlord is a business requirement and not a requirement for purposes of securing better accesses in this case. The petitioners cannot, therefore, be heard to ask for additional accommodation under Section 10(3)(c) of the Act in order to enable them to have better access to their flour mill from the main road by ordering the eviction of the first respondent herein. The learned Judge proceeded to observe that there was absolutely no material placed by the landlady before the authorities to show that there was expansion or increase in the business which necessitated further or additional accommodation for purposes of increasing or enlarging the business. The decision has to be understood on the fact of that case. As the claim, in that case was that the portion occupied by the tenant was required for the purposes of having a direct access from the main road to the flour mill premises, it was found that the requirement of additional accommodation for the purpose of business was not made out. The observations made by the learned Judge would not apply to the facts of the present case. In this case, it is found on the evidence that the additional accommodation is required for the purpose of manufacturing repairing shoes as an adjunct to the business of running a show mart which was already in existence. 5. In Mutulal v. Radhe Lal, the Supreme Court pointed out that the question of making preparation for starting a new business would not arise unless the landlord had a reasonable prospect of obtaining possession of the premises. 5. In Mutulal v. Radhe Lal, the Supreme Court pointed out that the question of making preparation for starting a new business would not arise unless the landlord had a reasonable prospect of obtaining possession of the premises. In the present case, the activity of manufacturing and repairing shoes is a fresh activity which has to be undertaken by the landlord as part of the business which he is already conducting. In order to have the fresh activity, preparations could not be made earlier by the landlord unless he had the prospect of obtaining possession from the tenant of the premises in the near future. It is well know that Rent Control litigations take a long period in those days and no landlord can predict as to when he would got possession of the premises occupied by the tenant. 6. Learned Counsel for the petitioner drew my attention to the decision of Chandurkar, C.J., in Yousuff Salt and Sons v. A. Shafeen Ahmed 1986 T.L.N.J. 295. The learned Chief Justice had observed that the owner of the building should establish that the accommodation already available for his occupation is not sufficient and then only he could bonafide claim additional accommodation of the portion in the occupation of the tenant. The learned Chief Justice pointed out that there should be specific pleading in the original petition and evidence in support thereof. In the present case, it cannot be said that the pleading is insufficient. There cannot be a more specific pleading that what is found in paragraph 12 of the petition for eviction. On the other hand, in the counter filed by the tenant, the pleading is vague and no specific plea has been put forward by the tenant. The evidence referred to by so already supports the pleading made by the landlord and in the circumstances of the case, the observations made by the learned Chief Justice in the aforesaid case will not apply to the present case. 7. It is next contended that the hardship that would be caused to the tenant by the order of eviction would outweigh the advantage which be derived by the landlord thereby. On this question, the original petition for eviction contains the following plea in paragraph 13: The respondent owns several buildings and tea stalls in Madurai City. He keeps the under-mentioned building locked and is wilfully and perversely refusing to vacate. On this question, the original petition for eviction contains the following plea in paragraph 13: The respondent owns several buildings and tea stalls in Madurai City. He keeps the under-mentioned building locked and is wilfully and perversely refusing to vacate. The respondent is not therefore likely to suffer any disadvantage or hardship by being evicted from the building, while the petitioner really needs the building for his own use. In the counter statement, the tenant satisfied himself with merely stating that all the allegations in paragraph 13 are denied. P.W.1 in his evidence stated that the tenant had another shop just opposite to the petitions premises. He also stated that tenant had other places and that no inconvenience would be caused to him by the eviction. There is absolutely as cross-examination on that aspect by the tenant when P.W.1 was in the witness box. In the evidence of the tenant, he admitted in his chief-examination that the shop situated opposite to the petition premises belonged to his son. In the cross-examination he stated that he did not deny the averment in the petition for eviction that he was having several buildings. He stated further that he was having another shop by name Ayyappan Coffee Nilayam at Door No. 66, South Rasi Street. Though in the first instance he denied that Prasanna Coffee in Door No. 217 A of South Masi Street belonged to him, later he admitted that Prasanna Coffee was conducted by one of his sons. He also admitted that the invitation for opening of the shop marked an Ex.4-6 was issued by him. He admitted that the shop by name Siddhivinayagar shop belongs to his another son. He also admitted that his son-in-law is running a shop by name Jothimani Coffee Shop. In the re-examination he stated that all his sons and himself are living together as one family. R.W.2 is one of the sons of the tenant. No admits that all the sons are living with the father together and that the various shops referred to by the father are being run by himself, his brothers and the father. The evidence makes out that the tenant is in a position to shift his business to anyone of the other shops. No admits that all the sons are living with the father together and that the various shops referred to by the father are being run by himself, his brothers and the father. The evidence makes out that the tenant is in a position to shift his business to anyone of the other shops. The admission of the tenant that he is having a shop just opposite to the petition premises is sufficient to prove that no hardship that would be caused to the tenant by the order of eviction would not outweigh the advantage which may be derived by the landlord. In the circumstances, the findings of the authorities below that the respondent is entitled to an order of eviction under Section 10(3)(c) of the Act have to be upheld. 8. Learned Counsel for the respondent wanted to argue that the finding of the appellate authority on the question of wilful default is unsustainable. I do not think it necessary as I agree with the findings of the authorities below on the question of additional accommodation. 9. In the result, the q 10. Learned Counsel for the petitioner prays for time to vacate the premises. Learned Counsel for the respondent agrees for grant of three months time provided the petitioner files an affidavit of undertaking. The petitioner is granted time till 28-2-1989 to vacate the premises on condition that the files an affidavit in this Court on or before 5-12-1988 undertaking to vacate the premises on or before 28-2-1989 without driving the landlord to execution proceedings.