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2001 DIGILAW 311 (MAD)

Subbiah Pandian v. C. Balasundaram

2001-03-09

E.PADMANABHAN

body2001
Judgment :- 1. At the request of the counsel for either side, the above Second Appeal and Civil Revision Petition were ordered to be consolidated. In the Second Appeal, notice of motion was ordered on 20.12.1999. The respondents have been served. The C.R.P. came up for admission subsequently and as per the orders of S.S. Subramani, J., both the matters were ordered to be consolidated. 2. Heard Mr. A. Sankarasubramanian, learned counsel appearing for the appellant in the Second Appeal as well as the petitioner in the revision petition and Mr. P. Peppin Fernando, learned counsel appearing for the respondent in the Second Appeal and in the revision petition. 3. In the Second Appeal, the following substantial questions of law was advanced by the counsel for the appellant: — “1) Does not law recognise an agreement to adjust the interest due from the borrower with the rent payable by the creditor to the borrower? 2) Are the courts below wrong in holding that such right is not recognised by law in spite of the finding in Rent Control proceedings that the appellant has not committed wilful default in payment of rent?” 4. C. Balasundaram, the petitioner/landlord instituted RCOP No. 105/88 against the tenant Subbiah Pandian @ Subbiah Thevar under Sections 10 (2)(1), 10 (2)(ii)(b), 10 (2)(ii) and 10(3)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The very same landlord also filed RCOP No. 51/93 against the very same tenant in respect of the same premises. The first eviction petition was instituted on the following grounds: — “1) Wilful default in payment of rent; and 2) Acts of waste committed by the tenant.” In RCOP No. 51/93, once again the landlord filed seeking for eviction on the ground of wilful default, denial of title as well as owners use and occupation. Both the eviction petitions were resisted. 5. The landlord marked Exs. p-1 to p-10 and the tenant marked Exs.R-1 to R-20. The landlord examined two witnesses on his side, while the tenant examined two witnesses on his side. The Rent Controller dismissed RCOP No. 105/88, but ordered eviction in RCOP No. 51/93 and granted a months time to the tenant to vacate, while dismissing RCOP No. 105 of 1988. Being aggrieved, the tenant preferred RCA No. 29/95 while the landlord preferred RCA No. 6 of 1998. The said appeals were taken up together by the Appellate Authority. The Rent Controller dismissed RCOP No. 105/88, but ordered eviction in RCOP No. 51/93 and granted a months time to the tenant to vacate, while dismissing RCOP No. 105 of 1988. Being aggrieved, the tenant preferred RCA No. 29/95 while the landlord preferred RCA No. 6 of 1998. The said appeals were taken up together by the Appellate Authority. The Rent Control Appellate Authority dismissed both the appeals and confirmed the order of eviction passed in RCOP No. 51/93 and also confirmed the dismissal of RCOP No. 105/88. Being aggrieved by the order of eviction passed by the Rent Controller in RCOP No. 51/93 as confirmed in RCA No. 29/95, the present revision has been preferred by the tenant. The order in RCOP No. 105/88 as confirmed by RCA No. 6/98 has not been challenged and it has been allowed to become final. In other words, the tenant had challenged the orders of eviction ordered on the sole ground that the landlord requires the premises for use and occupation of his brother for the purpose of business to be carried on by him. 6. The two authorities below have concurrently held that the landlord bona fide requires the premises for occupation of his brother for the purpose of his business. Challenging the same, the learned counsel Mr. Sankarasubramanian contends that the two authorities below have acted with illegality in ordering eviction on the ground that the premises is required for the own occupation of the landlords family member, namely his brother. While pointing out that the landlords brother is not carrying on business, nor he had made preparations for the business and that in the absence of any evidence to that effect no order of eviction would be passed and hence eviction ordered cannot be sustained. 7. Per contra, Mr. P. Peppin Fernando, learned counsel appearing for the respondent-landlord contended that the two authorities below ordered eviction holding that the requirement of the landlord for his brothers occupation is bona fide and that in the nature of business which the landlords brother wanted to carry on, neither preparation nor it is required for the landlord to show that his brother is carrying on business in a rented premises. Being a concurrent finding, according to Mr. P. Peppin Fernando, no interference is called for in this revision. 8. Being a concurrent finding, according to Mr. P. Peppin Fernando, no interference is called for in this revision. 8. The two authorities concurrently held that the requirement is bona fide and that the requirement of the landlord for his brothers occupation is bona fide and consequently eviction has been ordered. 9. The only question that arise for consideration in the revision petition is: — “1) Whether the authorities below acted with illegality and material irregularity in ordering eviction on the ground that the landlord requires the premises for his brothers occupation for a non-residential purpose without his carrying on business or without even preparations?” 10. The premises in question is a nonresidential premises where the petitioner/tenant is carrying on business. The landlord/respondent on various grounds sought for eviction. Excepting the ground, namely, that the landlord requires the premises for his brothers occupation for his business, is the only ground on which an order of eviction has been passed by the original authority and affirmed by the Appellate Authority. The landlord, according to the two authorities below had established the requirement of his brother and that such a requirement is bona fide as the landlord/respondent has no other premises in the town and that the only premises owned by the landlord is in the occupation of the petitioner/tenant. It is also admitted that the landlords brother is not employed and his requirement for owners occupation is bona fide. The only contention advanced is that when neither the landlord nor his family member for whose use and occupation the premises is required is not carrying on business, nor he had made any preparations for such a business, it is not open to the authorities below to order eviction in terms of the statutory provisions of the Act. 11. In this respect, while pointing out though the requirement has been found to be bona fide, Mr. Sankarasubramanian contends that when the landlord or his family member is not carrying on business for which purpose the premises is required, or when no preparation has been made in terms of Section 10(3)(a)(iii), the order of eviction could neither be sought for not it could be ordered. 12. Sankarasubramanian contends that when the landlord or his family member is not carrying on business for which purpose the premises is required, or when no preparation has been made in terms of Section 10(3)(a)(iii), the order of eviction could neither be sought for not it could be ordered. 12. The business which the landlords brother, as seen from the petition and the evidence, wanted to carry on is a business of vending betel nuts and other items which they are normally referred as petty shop in the locality. In this respect it is pointed out that for commencing such petty shop business, generally no elaborate preparation is required for setting up of such a business. In the present case, the very nature of business for which the landlord requires the premises is not like doing a commission business or manufacturing business or any other business of agency or such other business which may require experience or licence or a registration etc. Moreover, requirement in each case depends upon its own facts. It is fairly admitted that for the purposes of vending of betel nuts and small eatables in a petty shop, no preparation, much-less elaborate preparation or arrangement is necessary to start such a business. It has been shown that the business that is proposed is a petty business and concedingly it does not require arrangement or preparations much-less elaborately. That being so, it makes no difference whether the landlords brother, who is unemployed and married and without income, had decided to carry on the petty shop business which could be carried on by anyone without much preparation or experience. 13. Therefore, it is clear that it is not required nor it is called for, for the landlord to start such a business in a rented premises for his brother and thereafter seek for owners occupation as in the nature of business which the landlords brother wanted to carry. In this respect, it is useful to refer to two earlier pronouncements of this Court as well as that of the Apex Court 14. In this respect, it is useful to refer to two earlier pronouncements of this Court as well as that of the Apex Court 14. In Hameediya Hardware Stores v. Mohan Lal Sowcar reported in 1998 (2) L.W. 1 (Supreme Court) their Lordships of the Supreme Court held thus: — “If the requirement of claim being bona fide as contained in Sec. 10(3)(e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secured. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is that object of enacting clause (e) of Sec. 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family.” 15. In Krishnaswamy Naicker v. C. Veerabahu Pillai and two others reported in 1990 TNLJ 138, a learned Judge of this Court had occasion to consider the provisions of Section 10 (3)(a)(iii) of the Act and sustained an order of eviction sought for by the landlord for owners occupation for a commission mundy business, as ordinarily no elaborate preparations are necessary for setting up or for the establishment of such a commission mundy business. In that context, it has been held thus: — “There is no dispute that the business in respect of the carrying on of which the petitioner requires the premises in the occupation of the respondents is commission business. Ordinarily, no elaborate preparations are necessary for the setting up or the establishment of such a business. Essentially, the commission business is only bringing the buyer and the seller together and earning a commission either from one or both parties so brought together. Ordinarily, no elaborate preparations are necessary for the setting up or the establishment of such a business. Essentially, the commission business is only bringing the buyer and the seller together and earning a commission either from one or both parties so brought together. 2 Considering the nature of the business activities to be carried on in the premises, no elaborate preparations as such would be necessary. Learned counsel for the respondent, however, attempted to rely upon Ex.A-6, the notice which preceded the institution of the eviction proceedings, to contend that the petitioner has not even referred to the commission business and that would detract from the bona fides. It is difficult to agree with the contention, for, the notice clearly sets-out that the requirement is for trade purposes and a commission business would also be comprehended within the expression “Trade”. The application for eviction has clearly set out the nature of the business and the evidence of P.W.1 as well as the other evidence referred to earlier clearly show that the desire of the petitioner is to re-start the commission business of his father-in-law which had been temporarily suspended for a while for other reasons. Under those circumstances, it has to be held that the petitioner has made out a case for an order of eviction against the respoondents under Section 10(3)(a)(iii) of the Act.” 16. In Solai Naclar v. A.T.A.V. Guruswami Naclar & Co. reported in 82 L.W. 345 = 1969 (I) MLJ 629 at 632, it has been held that this Court while interpreting the expression “carrying on business” held that it is not possible to interpret the expression in the same manner in all cases irrespective of the nature of business. In that context, it has been held thus: — “The following propositions are deducible from them: (a) There is no yardstick by which we can measure the range of activities necessary to constitute the carrying on of business-Viswanatha Sastri, J., in Venkataswami and Sons v. Virabhadraswami (1993 An. W.R. 695). (b) Carrying on business need not necessarily mean that there is an active and vigorous trade, it is enough if all the preparations have been made. Panchapakesa Ayyar, J., in Nataraja Achari v. Balasubramaniam ( 1957 (2) MLJ 492 = 70 L.W. 212). W.R. 695). (b) Carrying on business need not necessarily mean that there is an active and vigorous trade, it is enough if all the preparations have been made. Panchapakesa Ayyar, J., in Nataraja Achari v. Balasubramaniam ( 1957 (2) MLJ 492 = 70 L.W. 212). (c) If bona fide preparations for a business is afoot, the business may be regarded as being carried on in many cases - Baiakrishna Ayyar, J., in Azimudeen Sahib v. Rangaswami Pillai ( 1958 (2) MLJ 389 ). (d) Merely because a person had done certain business in the past and intends to do similar business in future, he cannot be said to be carrying on a business - Subramanyam, J., in Krishna Iyer v. Karur Vysya Bank ( 1959 (2) MLJ 215 = 72 L.W. 494). (e) It is irrelevant to consider whether he has invested a sufficient sum or that he should have invested more. It is equally irrelevant to consider whether the turn over of the business is small or large. Venkatadri, J., in Arumugha Nattar v. Hussain Moideen Khan ( 1964 (1) MLJ 386 = 76 L.W. 802)., (f) It is not necessary for the purpose of carrying on a business within the meaning of Section 10 (3) (a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, that the entire activity of a business should exist. Section 10 (3) (a) (iii) of the Act would cover the case where the authorities come to the conclusion that the demand for occupation is a bona fide one and that the landlord has already commenced some activity in connection with the starting of the business. There is no reason why a landlord having the capital ready and the intention as well to do business cannot be said to have commenced his business, though the activity relating to it has to await the securing of accommodation. Ramachandra Iyer, C.J., in Ramaswamy Pillai v. Karmaga Thevar (1962 (2) MLJ 89 = 76 L.W. 770 = ILR (1964) 1 Madras 712). (g) Carrying on business is essentially a question of fact or a mixed question of fact and law and each case has to be decided on its own facts and no general proposition of law can be evolved. (g) Carrying on business is essentially a question of fact or a mixed question of fact and law and each case has to be decided on its own facts and no general proposition of law can be evolved. Even construing the term most liberally in favour of the landlord, it cannot be said that the mere fact that a licence has been obtained from the municipality to run a flour mill can by itself satisfy the pre-requisite conditions to evict a tenant under Section 7 (3) (iii) of the Madras Buildings (Lease and Rent Control) Act, 1949: When there is no evidence that the landlord has purchased the requisite machinery or plant for erecting a flour mill or has done any other business activity necessary to start a new venture, the mere obtaining of a licence will not entitle the landlord to come within the requirements of law to evict the tenant - Jagadeesan, J., in Govinda Chettiar v. Pachayappa Pandithar ( 1960 (2) MLJ 382 = 73 L.W. 509). (h) The business which the landlords family is carrying on, cannot be regarded as a business which he is carrying on, and if he has to be regarded in his individual capacity, he is certainly not carrying on any business-Srinivasah, J., in Subramania Naidu v. Mohammed Zyauddin (1968) 81 L.W. (S.N) 34). 17. In Mori Ammal v. Kandaswamy reported in 1977 TNLJ 499, this Court in an identical case held that in respect of a petty shop business, its bona fides alone to be tested and it is not necessary to establish for the landlord or the family member is carrying on business in a rented premises and it is not as if only after carrying on such business in a rented premises the landlord could seek for eviction on the ground of owners occupation. It has also been held that in betel nut business, it has been held, does not require any elaborate preparation and all that is required is intention to start business and possession of capital, which will admittedly be very small, to start the business. In the said case, order of eviction has been sustained by this Court. It has also been held that in betel nut business, it has been held, does not require any elaborate preparation and all that is required is intention to start business and possession of capital, which will admittedly be very small, to start the business. In the said case, order of eviction has been sustained by this Court. In that context, it has been held thus: — “Giving the fullest meaning to the expression “a business which he is carrying on”, it is not possible to interpret the expression in the same manner in all cases irrespective of the nature of the business. Certain business may require elaborate preparation and certain other business may not require any preparation at all. For instance, the business with which we are concerned, viz., a betel nut business does not require any elaborate preparation at all and all that is required is an intention to start the business and possession of capital, which, admittedly will be very small, to start the business. It is not as if, for the purpose of having recourse to the particular statutory provision, a landlord must take a building on lease from a third party and commence his business in that building and thereafter apply under Section 10(3)(a)(iii) for getting possession of his own building for the purpose of carrying on that business which till then he was carrying on in a rented building. To construe Section 10(3)(a) (iii) in that manner will be against all notions of common-sense and will not be even in consonance with the object of the Act. Certainly, it cannot be the intention of the Act of prevent a landlord who, for the purpose of eking out his livelihood, wants to carry on a business of his own in his own premises from doing so.” Incidental views have been taken by this Court in a number of cases and it is unnecessary to quote all of them. 18. In the present case, two authorities below have considered this aspect of the matter and held that the requirement of the landlord for owners occupation for his brothers business is bona fide. 19. Admittedly, the landlords brother is not occupying any premises and he also requires the premises bona fide for the business of petty shop. 18. In the present case, two authorities below have considered this aspect of the matter and held that the requirement of the landlord for owners occupation for his brothers business is bona fide. 19. Admittedly, the landlords brother is not occupying any premises and he also requires the premises bona fide for the business of petty shop. The two authorities below have held that the requirement is bona fide and sitting in revision, this Court will not be justified at all in interfering with the said concurrent findings and in the light of the above pronouncement, this Court holds that no interference is called for. The only contention advanced is rejected and hence, the Civil Revision Petition is dismissed. Consequently, connected C.M.P.S are also dismissed. 20. In the Second Appeal, in fact, no argument at all could be advanced. The said tenant, Subbiah Pandian @ Subbiah Thevar instituted O.S. No. 1120/88 for declaration that he is entitled to continue in the tenancy permises till the outstanding sum of Rs. 25,000/- received on various dates by the landlord/defendant is repaid and for a permanent injunction not to evict till then. The suit was resisted contending that the plaintiff is only a tenant and he cannot seek the relief either for declaration or for permanent injunction and the defendant/landlord has already filed a petition for eviction. 21. The trial Court held that the plaintiff is only a tenant in occupation and he became a tenant long prior to his advancing certain amounts to the landlord. Even assuming that the landlord had agreed to adjust the interest payable by him towards monthly rental, on that score the plaintiff cannot seek the relief of declaration or injunction. It is not as if the defendant, the owner of the building had usufructually mortgaged the property or that there is anything to show that an anamalous mortgage has been created in favour of the plaintiff. The plaintiff has no document at all to sustain his plea that he is entitled to continue till his outstandings are discharged. Except being a tenant, the plaintiff has no right and there is no arrangement by an instrument or otherwise to show that the defendant cannot seek for recovery of possession through lawful means. 22. Admittedly on the date of the plaint, the plaintiff/tenant is in occupation and the defendant/landlord has already filed two eviction petitions. Except being a tenant, the plaintiff has no right and there is no arrangement by an instrument or otherwise to show that the defendant cannot seek for recovery of possession through lawful means. 22. Admittedly on the date of the plaint, the plaintiff/tenant is in occupation and the defendant/landlord has already filed two eviction petitions. The two courts below concurrently held that the plaintiff is not entitled to either the relief of declaration or injunction prayed for. 23. The learned counsel for the appellant is unable to point out any perversity in the appreciation of evidence or omission to consider any material portion of the evidence. The two Courts have held that if the petitioner had advanced money, he should seek to recover the same, but he is not entitled to maintain the suit as prayed for in the absence of any acceptable evidence to sustain such an arrangement by way of an instrument or a deed. The two courts have concurrently held that no arrangement as pleaded by the plaintiff had been established nor the plaintiff is entitled to get a declaratory relief to be in possession of the building continuously. The tenant is entitled to continue in occupation of the premises so long as he pays the rent or an adjustment is made between the landlord and the tenant. On that score, the lessee cannot seek for a declaration as pleaded in the present case in the absence of any documentary or acceptable evidence to sustain such an arragement. The two courts below have rightly dismissed the suit. The two questions of law advanced are not questions of law, muchless substantial questions of law. 24. On the first question of law, it is to be pointed out that even assuming that some amount has been advanced by the plaintiff to the defendant/landlord and even if the interest payable has to be adjusted that would not prevent the landlord to seek for eviction by initiating appropriate eviction proceedings. Hence, the first question of law has to be answered against the appellant. So also the second question of law. Further the landlord had already initiated eviction proceedings and secured orders of eviction and it is not as if the landlord/defendant is trying to forcefully dispossess the plaintiff. There are no merits in both the questions of law advanced in the second appeal. 25. So also the second question of law. Further the landlord had already initiated eviction proceedings and secured orders of eviction and it is not as if the landlord/defendant is trying to forcefully dispossess the plaintiff. There are no merits in both the questions of law advanced in the second appeal. 25. In the result, the Second Appeal is dismissed. The revision petition is also dismissed. Consequently, connected C.M.P.s in both the Second Appeal and the revision petition are also dismissed. No costs. 26. The proceedings for eviction came to be initiated as early as 1988 and therefore there is no justification to grant time to the tenant/revision petitioner. However, taking into consideration the fact that the tenant is in occupation for a long period, the tenant is granted time till 31.5.2001 on condition that the revision petitioner files an affidavit to the following effect: — “1) The revision petitioner undertakes to deliver vacant possession of the premises to the landlord without his being required to execute the order or eviction; 2) The revision petitioner undertakes not to induct any third party into possession; 3) The revision petitioner undertakes not to initiate any further or other proceedings against the respondent in respect of the tenancy premises.” The revision petitioner is granted two weeks time from today to file an affidavit in Court after serving a copy of the same on the counsel for the respondent/landlord. If the revision petitioner fails to file an affidavit of undertaking, the time granted shall automatically lapse on the expiration of two weeks period and the respondent/landlord will be at liberty to execute the order of eviction.