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2003 DIGILAW 1815 (MAD)

Bata India Limited & Another v. M. R. Manickam

2003-11-07

PRABHA SRIDEVAN

body2003
Judgment :- When the matter came up for admission, the respondent took notice as Caveator, the matter was argued for final disposal. 2. The tenant is the revision petitioner. The eviction was sought on the ground of owner's occupation. The Rent Controller as well as the Appellate Authority concurrently held that the respondent had proved that the property is required for his own occupation and therefore, the tenant is before us. 3. The petition property is situate in T.No.4165, East Main Street, Pudukottai Town, and is a non-residential one. The petitioner, claims to have been inducted as a tenant in 1979 and had continued in possession as tenant subject to increase of rent periodically. In 1992, there was an exchange of correspondence between the parties and the letter dated 22.10.1992, which was marked as Ex.R3 was addressed by the petitioner to the respondent. According to Ex.R3, the petitioner indicated their willingness to occupy the premises for a further period of ten years subject to an option for renewal for another period of three years, and it is also seen from Ex.R3, that the rent will be Rs.5000/- per month and that already a sum of Rs.14,000/= is with the respondent as advance rent and that the petitioner had agreed to pay a further advance of Rs.36,000/= aggregating to a total of Rs.50,000/= as advance. 4. The respondent filed RCOP.No.18 of 1994 for eviction under Section 10 (3)(a)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter referred to as the `Act'). The respondent claimed that he is carrying on a hotel business as a partner along with others in a rented building in Pudukottai Town and that he has made preparations to start a hotel business in the suit premises which is more suitable for the business and that he does not own a non-residential building similar to the petition property in Pudukottai Town and that his requirement is bonafide. In the counter, the petitioner stated that the petition for eviction is not maintainable and that periodically, the respondent would threaten to initiate proceedings for eviction, but would allow the petitioner to continue as a tenant on payment of enhanced rent. It was specifically stated that in 1979, the respondent prayed for eviction on the same ground and on an understanding to pay an enhanced rent, the petitioners were allowed to continue. It was specifically stated that in 1979, the respondent prayed for eviction on the same ground and on an understanding to pay an enhanced rent, the petitioners were allowed to continue. The petitioners also stated that the requirement was not bonafide. 5. The learned counsel for the petitioners submitted that the petition itself is not maintainable, since according to Section 10(3)(d) of the Act, where the tenancy was for a specified period, the landlord shall not be entitled to apply under this sub-section before the expiry of such period. The learned counsel would submit that when Ex.R3 has been marked on admission without reservation the contents thereto cannot be challenged and for that, reliance was placed on the decision of LIONEL EDWARDS LTD., VS. STATE (AIR 1967 Calcutta 191) and also under Section 58 of The Evidence Act. The learned counsel would also submit that it is apparent from the evidence as well as pleadings that the requirement is not bonafide. The respondent's contention that he wants to start his own business is clearly false and in the cross examination of P.W.1 and P.W.2, it had been elicited that he is doing contract business and therefore, where the landlord seeks owner's occupation he must prove his bonafides and since the respondent's claim is not bonafide eviction ought not to have been ordered. 6. The learned Senior counsel for the respondent-Caveator on the other hand submits that it is not open to the petitioner to claim that there was a tenancy for five years without there being a registered document to prove the same, and that an unregistered lease deed is not being admissible in evidence, the tenancy must be deemed to be a monthly tenancy, and Section 10(3)(d) would not arise. The learned Senior counsel would also submit that the fact that the respondent had the necessary funds to start a new business is not in dispute. The petitioner is already a partner in hotel business under the name and style of Abirami Hotels and therefore, his experience in starting a new hotel business is also not in dispute. When the categoric stand of the respondent is that no other premises is available for starting this business, the same should be accepted. The petitioner is already a partner in hotel business under the name and style of Abirami Hotels and therefore, his experience in starting a new hotel business is also not in dispute. When the categoric stand of the respondent is that no other premises is available for starting this business, the same should be accepted. The learned Senior Counsel also submitted that the fact that an earlier application was filed will not operate as res judicata, since under Section 19 of the Act, which incorporates the rule of res judicata, it is for the petitioner to prove the plea by filing the documents, copies of earlier petitions and judgments etc. and if he does not do so, the plea must be rejected. 7. In the petition for eviction, the respondent has stated that he is carrying on the hotel business as a partner along with other partners in a rented building in Pudukottai Town. (emphasis supplied). The petitioner has also stated that he has planned and made preparations to start of hotel business in the suit premises, which is more suitable for business and that he does not own a non-residential building similar to that of the suit premises and that the requirement is bonafide. In the cross examination, as P.W.1 the respondent has admitted that the premises in which the partnership building is carrying on is his own premises. Therefore, the statement made in the petition that the partnership business is being carried on in a rented building is not correct. The orders of the Rent Controller and Appellate Authority do not indicate that the authorities have focused on the main ingredients to justify an application for eviction on the ground of owner's occupation. They are as follows: 1) the building should be non-residential in character; 2) the landlord should be carrying on the business on the date of application for eviction; 3) he should not be occupying any building belonging to him; and 4) the claim should be bonafide and not found to be an indirect or false attempt to evict the tenant to obtain more rent or to harass the tenant. 8. 8. The Rent Controller's order after discussion of the evidence and the pleadings are to the effect, In brief, what the Rent Controller has held is that there was no dispute regarding the respondent's possession of funds or his experience in running the hotel business or his need to start a new business. It is on the basis of these findings the Rent Controller passed the orders of eviction. The appellate authority, who also confirmed the order came to the conclusion on the basis of the following findings: In brief, what the appellate authority has stated is that he was satisfied that the petitioner would not be put to hardship if he is shifted from this petition premises to another premises and that it is not possible to come to the conclusion that the respondent has filed the application to get more rent because it is clear that the respondent is carrying on a huge contract business and therefore, will not need higher rent. So, the appellate authority also has not adverted his attention to the crucial aspects that are necessary for ordering eviction under Section 10(3)(a)(iii) of the Act. 9. Now, let us examine whether Section 10(3)(d) of the Act applies to this case. Apart from Ex.R3, there is no registered document to show that the tenancy was for a specified period. 10. In NANDAN BROTHERS AND OTHERS vs. KAMALADEVI CHANDAK AND OTHERS (1989-2 MLJ 469, the facts are almost identical. In that case also no lease deed was produced and there was no tenancy agreement. The parties relied upon an earlier agreement for tenancy and a letter written, which would indicate that the tenants asserted that they were entitled to continue for further period of five years. It was held that under Section 107 of The Transfer of Property Act, there can be no valid lease for any period exceeding one year in the absence of a registered instrument, and so Section 10(3)(d) will not apply. Similarly, in this case unless there is a valid agreement of tenancy, the provisions of Section cannot be invoked by the tenant, 11. Now, we come to the ground of owner's occupation. 12. In the decision in P. PRAKASAMURTHY VS. Similarly, in this case unless there is a valid agreement of tenancy, the provisions of Section cannot be invoked by the tenant, 11. Now, we come to the ground of owner's occupation. 12. In the decision in P. PRAKASAMURTHY VS. R. RAJENDRAN (1999-2 L.W. 269), which was relied on by the respondent, this Court had held that Section 19 of the Act cannot have application if there is change in circumstances between the prior proceeding and the later proceeding. As regards, bonafide the respondent stands on the very shaky ground. The respondent admits that the petitioner was carrying on business as a partner under the name and style of Abirami Hotels. Though the respondent has denied that he is not doing contract business, it is his evidence that; 13. Therefore, admittedly, the contract business is in his name. It is also admitted that his building infront of the new bus stop is of an extent of 12000 sq.ft. As regards, the earlier application, it is his evidence that; So though the petitioner suffered an order of eviction in the earlier procedure, the respondent instead of taking possession of the properties for his own and occupation entered into another registered lease deed with the petitioner. The date mentioned in the evidence extracted above should read as 11.8.1982 and not as 11.8.1992. 14. In C.R. SUBRAMANIAM VS. N. VASUDEVAN (1998-2 CTC 211), the landlord sought eviction of non-residential building for his own occupation. The landlord was co-owner of another non-residential building in the same town. The Rent Controller and Appellate Authority ordered eviction finding that the requirement of landlord was bonafide. This Court allowed the revision and set aside the order of eviction. In this case, the respondent admits that he is carrying on the business of Abirami Hotels in his own building but he has not stated so in the petition. 15. In J.N. GULAMALI AND OTHERS VS. HORAH CASTING COMPANY, MADRAS AND ANOTHER (1978-1 MLJ 280), the legal position with regard to applications under Section 10(3)(a)(iii) of the Act was crystalised "The legal position would boil down to this; did the landlord seek eviction of the tenant from a non-residential building belonging to him with reference to a business, which he was carrying on in a rented premises? If that be so, Section 10(3)(a)(iii) would apply albeit he was carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act, viz., this was not a case of unreasonable eviction. It would be rather very reasonable for a landlord to have his business which was of a different nature run in the premises owned by him, rather than suffer the tenancy for all time to come merely because he happened to be a partner in some other business which was being carried on in a portion of a non-residential premises. In the case of Muslim co-sharers, it was not unknown that factional shares were held by them and if the law was not to be interpreted in this manner, then it would affect the right of a landlord, which was certainly not the policy of the Act." 16. In SUPER FORGINGS AND STEELS (SALES) PRIVATE LIMITED VS. THYABALLY RASUJEE (DEAD) THROUGH L.RS (1995-1 MLJ 59), this High Court held that the respondents, who were carrying on business in non-residential building in which they are co-owners can be regarded as landlords, who are occupying their own non-residential building as envisaged under Clause (iii) of Section 10(3)(a) of the Act and therefore, he disentitled from seeking eviction. In this case, the respondent is carrying on the business in his own building in front of the new bus stop and is therefore not entitled to seek eviction under Section 10(3)(a) of the Act. 17. In BROOKE BOND INDIA LTYD., VS. RAGHAVAN (1996-1 MLJ 631), the landlord was carrying on the partnership along with members of his family for the purpose of partnership business and also for money lending business, he wanted eviction of premises. He claimed that he did not have the business any other building suitable for the said office. This requirement was resisted by the tenant on the ground that the requirement for a partnership business is not for the requirement of his own occupation for his own business. But this Court rejected the objection on the ground that the eviction petition is maintainable". This requirement was resisted by the tenant on the ground that the requirement for a partnership business is not for the requirement of his own occupation for his own business. But this Court rejected the objection on the ground that the eviction petition is maintainable". For this purpose, reliance was placed on 1989-2 MLJ 28 (M. AISHATH NAJIYA V. M/S. LALCHAND KEWALRAN), I am only relying on these judgments to show that since the landlord is in occupation of his own building near the new bus stop of an extent of 12000 sq.ft for carrying on his business, in which he is a partner, he is deemed to be in occupation of his own premises for non-residential purposes. So he cannot get another building to carry on the same business, while he is in occupation of his own building. The requirement of the respondent is also not bonafide. The Rent Control authorities has failed to focus on the main ingredients of Section 10 3(a)(iii) of the Act under which eviction was sought for. The impugned orders are set aside. The Civil Revision Petition is allowed. No costs. Consequently, connected CMP is closed.