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1999 DIGILAW 915 (MAD)

Akthars, represented by its Proprietor, R. Syed Tajuddin v. Hitesh V. Shah

1999-09-01

A.RAMAN

body1999
Judgment : This revision is directed against the order of eviction passed by the VIII Judge, Small Causes Court, Chennai in R.C.A.No.218 of 1995. 2. Thepetitioner/ landlord filed an application for eviction of the respondent/ tenant from the petition maintained property under Sec.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the following allegations: The petitioner has rented out the premises to the respondent for carrying on textile business at a monthly rent of Rs.1,300 per month. The petitioner attained majority in 1991. The petitioner requires the premises for carrying on his business. The petitioner issued a notice, requiring the respondent to vacate and hand over the possession on 27. 1991. The respondent sent a reply to the same on 18. 1991. The petitioner along with his father has been carrying on business in machine tools and electronic equipments. They were carrying on business at door No.67, Armenian Street, Chennai-1, in the name of Shiva Machine Tools’. The petitioner is not possessed of any other building. The petitioner is possessed of sufficient money to carry on a business of his own. The property in possession of the respondent is required for the business to be carried on by the petitioner. Hence, the petition. 3. Therespondent filed a counter, alleging as follows: The allegations made in the petition are not correct. The respondents’ father was a tenant under the petitioner for several years. This petition is filed with a mala fide intention. To the notice issued by the petitioners, the respondent has sent a suitable reply. The petitioner and his father are possessed of other properties in the City of Madras. The petitioner is possessed of two other shops. The requirement is not bona fide. Hence, the respondent prays that the suit may be dismissed with costs. 4. Before the Rent Controller viz., the petitioner examined himself in support of his case while the respondent examined himself in support of his case. Exs.A-1 to A-12 and B-1 to B-24 were marked. The Rent Controller by his order dated 14. 1994, dismissed the application, against which the petitioner/ landlord preferred an appeal to the Appellate Authority in R.C.A.No.218 of 1995. The Appellate Authority by his order dated 3. 1999 allowed the appeal and set aside the order of the trial court, ordering eviction, Aggrieved by the said decision the tenant has now come up with this revision. 5. 1994, dismissed the application, against which the petitioner/ landlord preferred an appeal to the Appellate Authority in R.C.A.No.218 of 1995. The Appellate Authority by his order dated 3. 1999 allowed the appeal and set aside the order of the trial court, ordering eviction, Aggrieved by the said decision the tenant has now come up with this revision. 5. The point for determination in this revision is: “Whether the petitioner requires the property bona fide for the purpose of carrying on his own business.” 6. Thepoint: The building a shop in dispute bears No.102 Khaleel Shirazi Estate, at No.31 Pantheon Road, Egmore. The revision petitioners father was inducted as tenant of the said shop. Later, after his death, his son the petitioner herein continued to be a tenant of the property. The property was looked after and managed by the father of the landlord and after the main petitioner viz., the landlord attained majority he has filed the application stating that since he has attained majority and as he wants to carry on a business of his own, he requires the premises bona fide for his occupation. That the present payable rent is at the rate of Rs.1,300 per month is not challenged. The property was let out to the tenant for the purpose of carrying on trade in textiles is also not challenged. It is also admitted that there are two other shops in the said building belonging to the respondent herein in the same complex. 7. Now, in that context, it has to be seen whether the bona fide requirement by the landlord has been established. It is to be pointed out in this connection that along with the appeal. The respondent landlord filed an application to receive certain documents to show that the tenant had since had ceased to carry on business in the property and that the property is kept simply locked. Of course, the said affidavit was not accepted by the lower court viz., the Appellate Authority however, on the materials already on record granted eviction. 8. The respondent landlord filed an application to receive certain documents to show that the tenant had since had ceased to carry on business in the property and that the property is kept simply locked. Of course, the said affidavit was not accepted by the lower court viz., the Appellate Authority however, on the materials already on record granted eviction. 8. Sec.10 of the Tamil Nadu Buildings (Lease and Rent Control) Act provides for eviction of tenants: Sec.10(3)(a)(iii) of the Act read as follows: “In case, it is any other non-residential building the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a nonresidential building in the city, town or village concerned which is his own, apply to the Rent Controller for an order directing the tenant to put the landlord in possession of the building.” Under this section, the present application has been filed. Therefore, we have to find out whether in the said context, the landlord has made out a case for eviction of the tenant. In other words, whether the requirement of the landlord is bona fide or not. 10. As held by the Apex Court in the decision reported in M/s.Variety Emporium v. R.M. Mohd.Ibrahim M/s.Variety Emporium v. R.M. Mohd.Ibrahim M/s.Variety Emporium v. R.M. Mohd.Ibrahim A.I.R. 1985 S.C. 207 subsequent events can be taken into consideration. The landlord filed an application before the lower court for reception of additional evidence to show that after filing of the application, the tenant stopped doing business and the premises has been kept locked. Though the additional evidence was not permitted to be adduced by the lower appellate court, in the course of hearing of this revision petition, it was contended as part of the argument that the subsequently the tenant has stopped doing the business and the building has been kept locked up it was not challenged. Therefore, in considering the request of the landlord for eviction, the subsequent event viz., the fact that the premises has been kept locked by the tenant without putting it to any use, has to be kept inview. 11. It was contended before the lower court by the tenant that the premises will not be suitable for the business, the petitioner/ landlord wants to carry on. 11. It was contended before the lower court by the tenant that the premises will not be suitable for the business, the petitioner/ landlord wants to carry on. But, there is evidence on record to show that there are two accesses to this petition mentioned property. It is further spoken to by the landlord, which is not controverted that similar business is being carried on in such shops in the building by others. The claim of the landlord is that the premises in occupation of the tenant is alone suitable for him. Therefore, it will not be open to the tenant to dictate as to the requirement of the landlord. The suitability of the premises is a matter for decision by the landlord. If the landlord feels that the premises in occupation of the tenant alone is suitable for the purpose of his business. he can seek eviction on that ground and it will not lie in the month of the tenant to say that the premises will not be suitable to the landlord for his business. It is neither for the authorities concerned nor the tenant to dictate as to where the landlord shall carry on his business. It is admitted that the landlord is desirous of starting a business of his own. It has been established of the landlord that the premises where the landlord wants to carry on his business will be suitable for that purpose. The landlord is not occupying for any other non residential building for purpose of business. Therefore, the contention that on the date when the petition was filed, the landlord did not start the business and therefore, the application must fail, cannot be accepted at all. 12. It has been held by a single judge of this Court reported in A.Khan Mohammed v. Narayanan Nambiar A.Khan Mohammed v. Narayanan Nambiar A.Khan Mohammed v. Narayanan Nambiar 99 L.W. 966 that what is to be proved for the purpose of disentitling the landlord when he states that he is not in possession of any property of his own for the purpose of carrying on his business is that he is actually occupying for the purpose of his business a property of his own. 13. In this case, it is not the suggestion nor it has been established that the landlord is occupying a premises of his own for the purpose of his business. 13. In this case, it is not the suggestion nor it has been established that the landlord is occupying a premises of his own for the purpose of his business. In this connection, it is argued that it is admitted by the landlord that there was a demand for higher rent from the tenant and therefore this fact would point out that there is no bona fide in this application. 14. Here in this case, the fact that there was a demand for higher rent and it has been complied with, are not disputed, The demand was made by the father of the landlord, when the petitioner was a minor. It is not the case that the petitioner after attaining majority, made any demand. Further, merely from the factum of demand of higher rent, one cannot jump to a conclusion that there is any lack of bona fide in the application. If the landlord feels that the rent paid by the tenant is not commensurates with the market rate of rent, it is always open to the landlord to ask for more. Just because the property has been rented out to a tenant, it does not follow that the landlord can never ask for higher rent. Therefore, asking for higher rent is not a sum nor it can be equated to any unreasonable demand. Nor from that an inference of mala fide can be drawn. It may be case of genuine demand for higher rent. Therefore, from the mere fact of earlier demand of higher rent, one cannot conclude, much less to hold that there is lack of bona fide in the application filed by the landlord. A similar view has been taken by a single judge of this Court reported in A.Gopalakrishna Chettiar v. T.K.A.Yakub Hussain A.Gopalakrishna Chettiar v. T.K.A.Yakub Hussain A.Gopalakrishna Chettiar v. T.K.A.Yakub Hussain A.I.R. 1988 Mad. 253. 15. It has been also held in the decision reported in Abdul Rahman v. Sadasivam (1984)1 MLJ. 410 that in a case where the application is filed by the landlord under Sec.10(3)(a)(iii) of the Act and if the landlord is not occupying for the purpose of business any non-residential premisee of his own. 253. 15. It has been also held in the decision reported in Abdul Rahman v. Sadasivam (1984)1 MLJ. 410 that in a case where the application is filed by the landlord under Sec.10(3)(a)(iii) of the Act and if the landlord is not occupying for the purpose of business any non-residential premisee of his own. In such a case, Rent Controller has no jurisdiction to consider whether the requirement is bona fide and if the conditions set out in Sec.10(3)(a)(iii) of the Act are found to be satisfied, the Rent Controller cannot reject the application. 16. The court below has held that the claim of the landlord is bona fide. There is nothing to show that there is any oblique motive in filing the petition. The conduct of the landlord is not such as to show that this application is filed with an ulterior motive. The fact that the tenant has subsequently ceased to occupy, is not seriously disputed. Therefore, in such circumstances, the finding of the court below cannot be disturbed in this revision. There is no failure on the part of the lower court to appreciate the materials placed on record. Nor there is any failure to take into consideration, the evidence on record. Nor, it is a case where is can be stated that the finding has been reached without any material or that the finding reached has been against the materials placed by the landlord before court. In such circumstances, I have to hold that there is no merit in this revision, and that the order passed by the court below cannot be interfered with. 17. In the result, this revision is dismissed, with costs, confirming the order and decretal order of the courts below, Consequently, C.M.P.No.7720 of 1999 shall stand dismissed.