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2003 DIGILAW 1748 (MAD)

Dr. Anthony Shiek Shib Pong v. S. E. Mahoob Basha

2003-10-28

PRABHA SRIDEVAN

body2003
ORDER: The tenant is the revision petitioner. The premises is nonresidential premises. The rent paid as on the date of the petition is Rs.450 per month. The ground on which eviction was sought for was owner’s occupation. Both the rent controller and the appellate authority ordered eviction. Therefore, the present revision has been filed. 2. The learned senior counsel appearing for the revision petitioner would submit that the ingredients, which are necessary for ordering eviction under Sec.10(3)(a)(iii) of the Rent Control Act do not exist in this case. According to the learned senior counsel, the respondent is in occupation of his own premises and there is no bona fide in this case. The lack of bona fide is established by referring to the evidence of P.W.1, wherein he was admitted that earlier one Abdul Rahman was the tenant in respect of the same premises and eviction was sought for on the same ground, namely, owner’s occupation and that petition was dismissed. Pending appeal, the tenant vacated the petitions premises. But the respondent did not occupy the premises, but let it out to the petitioner herein. 3. According to the petitioner, the application for eviction as only a tactic adopted for getting higher rent. It was also submitted that the business of the respondent was not of such a nature that it required any particular place. Whereas the petitioner, who is owning the premises adjacent to the petitioner premises would be handicapped, if the petition premises must be vacated by him, since he is using this as a waiting room for his patients. According to the learned senior counsel appearing for the petitioner, the respondent has admitted in his evidence that there are no bills or vouchers or any other documents to show that he is carrying on any business. 4. Reliance is placed in K.V.C.Pandithurai v. Samrath Bibi (Died) and others, (2000) M.L.J. (Supp.) 474: 2000 T.L.N.J. 347 and T.Sivasubramaniam v. Kasinath Pujari, (2000)1 M.L.J. (S.C.) 25: (2000)1 L.W. 778. 5. Learned counsel for the respondent on the other hand would submit that the concurrent judgment shall not be interferred with. According to the learned counsel, small businessman like the respondent may not have vouchers or account books and for this purpose he relied on Ruth Margaret Gonsalves v. K.T.H. Presses by its Proprietor, Kumar, 100 L.W. 258. 5. Learned counsel for the respondent on the other hand would submit that the concurrent judgment shall not be interferred with. According to the learned counsel, small businessman like the respondent may not have vouchers or account books and for this purpose he relied on Ruth Margaret Gonsalves v. K.T.H. Presses by its Proprietor, Kumar, 100 L.W. 258. It was submitted that all the documents would show that he is carrying on business in Azeez Mulk Street, Chennai and there is no evidence to show that it belongs to him. According to the learned counsel, his case that the premises is a rented premises has not been rebutted. According to the learned counsel, when the petitioner has stated in his counter that the respondent was not all carrying on business at 24, Azeez Mulk Second Street, Madras 6. It is the petitioner’s obligation to prove it. 6. Learned counsel appearing for the respondent also referred to Ex.P-7 series, which are all post cards, wherein the respondents customers have placed orders for supply of the goods in which the respondent is dealing with. According to the learned counsel, the fact that he is carrying on business is established by Ex.P-7 series. The fact that he alone is residing in Azeez Mulk Street is also proved by the documentary evidence. There are no lack of bona fides and if the respondent gets back possession of the petition premises, he would be able to receive higher income, since at present his income is only through commission, which is meager and if he has direct dealing with the customer, the income will definitely be high. 7. There are no lack of bona fides and if the respondent gets back possession of the petition premises, he would be able to receive higher income, since at present his income is only through commission, which is meager and if he has direct dealing with the customer, the income will definitely be high. 7. Sec.10(3) as (iii) reads as follows: “in case it is any other non-residential building, if the land lord 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 own: Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vires shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered: Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under the clause- (i) in case he has obtained possession of a residential building, for possession of another residential building of his own: (ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.” The main ingredients is that the landlord, who seeks eviction for his own occupation should not be in occupation of is own premises. 8. The finding of the appellate authority is that the respondent had not proved that he is carrying on his business in a rented premises. The appellate authority has noted that if his case was true, then the respondent could have examined the landlord or produced rental receipts. But evidence of the respondent is that he is carrying on business in a rented premises on a monthly rent of Rs.300. But he has not produced any receipt for payment of rent or for payment of advance. According to him, he pays his rent through his brother-in-law. He does not know the name of his landlord. When the landlord is unable to prove that the whole premises that is in his occupation for non-residential purposes is not his own, on that ground alone, the petition should be dismissed. 9. According to him, he pays his rent through his brother-in-law. He does not know the name of his landlord. When the landlord is unable to prove that the whole premises that is in his occupation for non-residential purposes is not his own, on that ground alone, the petition should be dismissed. 9. The appellate authority having been satisfied that the respondent has not proved that he is in a rented premises ought not to have confirmed the order of eviction passed by the rent controller, but the concurrent orders of eviction are not interfered with on this ground alone. It is also seen from the evidence that the petitioner had filed R.C.O.P.No.3164 of 1985 against one Abdul Rahman on the same ground, namely owner’s occupation. Abdul Rahman had vacated the premises during 1989. At that time, the petitioner asked the respondent to let the respondent’s premises on lease promising to vacate it whenever he requires. The respondent admits that the old rent of Rs.150 was raised to Rs.400 and an advance of Rs.10,000 was also received. Therefore, though the earlier petition was also filed for owner’s occupation, when the respondent got back possession of the premises, he did not occupy the same, but let it out to the petitioner for a higher rent. This proves the case of the petitioner that the respondent does not really require the premises for his own use and occupation, but the petition has been filed only to get higher rent. Of course, in the re-examination, the respondent has explained it as though the reason for not taking possession of the premises after the earlier tenant Abdul Rahman vacated, was because the respondent’s father died and there were some outstandings to be discharged. But for this there is no evidence. 10. In T.Sivasubramaniam v. Kasinath Pujari, (2000)1 M.L.J. (S.C.) 25: (2000)1 L.W. 778, the Supreme Court has held that, a mere wish is different from a bona fide requirement. “When a landlord desires a premises the requirement or law is that the landlord must set out his need for the premises. He must establish that such need is bona fide, genuine, honest and conceived in good faith and Held, Pleading not made and hence requirement is not made out. Revisional powers under Sec.25.” 11. “When a landlord desires a premises the requirement or law is that the landlord must set out his need for the premises. He must establish that such need is bona fide, genuine, honest and conceived in good faith and Held, Pleading not made and hence requirement is not made out. Revisional powers under Sec.25.” 11. In K.V.C.Pandithurai v. Samrath Bibi (Died) and others, (2000) M.L.J. (Supp.) 474: 2000 T.L.N.J. 347, the learned Judge held that, “the landlord files petition after petition for use and when other buildings owned by the landlord become vacant and let out to others and no explanation is given for non-occupying them, the petitioner cannot be said to have been filed bona fide”. 12. In this case, the need is not proved to be a genuine one, since when the respondent got back the very same premises, he did not occupy it but let it out to again for a higher rent. Therefore, it cannot be said that the requirement is genuine. 13. The appellate authority having found the respondent’s case that he is carrying on business in a rented premises, has not been proved, ought to have accepted the case of the petitioner that the respondent is in occupation of his own premises. 14. For these reasons, the concurrent orders of the Courts below are set aside, the civil revision petition is allowed. 15. The learned counsel appearing for the respondent would submit that there are subsequent events, which must be taken note that the petitioner is not in occupation of the premises, he has settled in Andhra Pradesh and he has let it out to a third party. If it is so the respondent is entitled to proceed against the petitioner on other grounds. But the ground on which the R.C.O.P.No.2730 of 1995 was filed has not been made out. 16. With the above observations, the civil revision petition is allowed. No costs. Consequently, C.M.P.Nos.20382 of 2000 and 5277 of 2001 are closed.