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2004 DIGILAW 302 (MAD)

Dr. Rohini Premkumari v. Annamalai & Another

2004-02-27

K.GNANAPRAKASAM

body2004
Judgment :- 1.The landlady is the revision petitioner in both civil revision petitions. 2.The landlady filed two separate petitions against her tenants, viz. Annamalai and Manikumar in RCOP.Nos.3988 and 3989 of 1986 respectively, for eviction of the tenants under Section 10(3)(a)(iii) on one and the same ground, that she requires the petition premises for her own use and occupation, for starting a Consultancy Clinic, in the petition premises and both the petitions came to be dismissed by the Rent Controller by order and decree dated 28.2.1991 and the same was confirmed by the Rent Control Appellate Authority in RCA.Nos.571 and 572 of 1992, on the file the 9th Judge, Court of Small Causes, Madras. Aggrieved by the same, the landlady has preferred these civil revision petitions. 3.The brief facts of the case is as follows:- Annamalai, the respondent in RCOP.No.3988/2003 is the tenant, occupying Shop Nos.2 and 3 in the premises, bearing Door No.33, Gandhi Irwin Road, Egmore, Madras-8 on a monthly rent of Rs.560/-, which is according to the English Calendar month, and the tenancy is for non residential purpose. 4.Manikumar, the respondent in RCOP.No.3989/2003 is the tenant, occupying Shop Nos.1 in the same premises, bearing Door No.33, Gandhi Irwin Road, Egmore, Madras-8 on a monthly rent of Rs.300/-, which is according to the English Calendar month and the tenancy is for non residential purpose. 5.The petitioner/landlady is a Medical Practitioner holding Degree in M.B.B.S., M.D. and her husband died in 1984 and she is living with her mother in the premises No.32, Gandhi Irwin Road, Egmore, Madras-8, which is owned by her mother, who has retired in October 1986. The petitioner is her only daughter and her daughter is aged about 3 years, studying at St.Christopher's Nursery School. 6.The petitioner is now running a Consultancy Clinic at No.165, Nelson Manicka Mudaliar Road, Choolaimedu, Madras-94, which is a rented premises and she is paying a monthly rent of Rs.300/- p.m and it is not convenient for the landlady to go there alone and come back to her residence at Egmore after practice in the night. There is no male member in the family of the petitioner and therefore, the petitioner bona fidely requires the building, which is under the occupation of the respective tenants, for her own use and occupation for starting a Consultancy Clinic. There is no male member in the family of the petitioner and therefore, the petitioner bona fidely requires the building, which is under the occupation of the respective tenants, for her own use and occupation for starting a Consultancy Clinic. 7.There are three shops in a row, each measuring an area of 20'x10' and Annamalai is the tenant in respect of two Shop Nos.2 and 3 and he is using the Shop No.2 only for his business and Shop No.3 is used only as godown. The other shop No.1 is occupied by the other tenant Manikumar, who is running a Tailoring School under the name and style of 'Vanaz Tailoring School'. The petitioner is also taking steps to obtain a plan to remodel the existing structure to suit her need for running a Consultancy Clinic. The petitioner terminated their tenancy and called upon them to vacate, but they have not complied with the said demand 8.Annamalai, the respondent in RCOP.No.3988/1986 admitted the tenancy in his counter, but, has stated that he became a tenant in the year 1972 in respect of Shop No.2 on a monthly rent of Rs.140/-. The rent has been increased periodically and the same was increased to Rs.275/- in January 1986. The respondent took Shop No.3 in January 1979 on a monthly rent of Rs.200/-. The rent has been increased periodically and the petitioner and her mother demanded enhanced rent and the tenant agreed to pay the enhanced rent of Rs.300/- for each shop, but, the petitioner and her mother were not satisfied. Thereafter, the petitioner has been receiving the rent directly from the respondent for the two shops from November 1986 onwards. The respondent further states that the petitioner's mother is residing in the I Floor in her own premises bearing Door No.32, Gandhi Irwin Road, Egmore, Madras -8 and the petitioner came to Madras in November 1986 and started a Consultancy Clinic in the ground floor itself of premises bearing Door No.32, Gandhi Irwin Road, Egmore, Madras -8. The petitioner has been carrying on her practice in the ground floor and therefore, she does not require the petition premises for her needs. The petitioner's statement that she has been carrying on business in a rented premises at Nelson Manicka Mudaliar Road is denied. The petitioner has been carrying on her practice in the ground floor and therefore, she does not require the petition premises for her needs. The petitioner's statement that she has been carrying on business in a rented premises at Nelson Manicka Mudaliar Road is denied. As the petitioner has been carrying on her Consultancy Clinic in the ground floor of the premises bearing Door No.32, Gandhi Irwin Road, Egmore, Madras -8, which is a palatial building, she does not at all require the petition premises and her requirement is not bona fide. 9.The respondent also stated that the petitioner was employed permanently in Kerala State as Government Doctor and she came down to Madras only in 1986. The respondent has been running the business for several years and earned good reputation in the said locality and if the respondent is evicted, he would be put to irreparable loss and inconvenience and therefore, prayed for dismissal of the petition. 10.Manikumar, the respondent in RCOP.No.3989/1986 filed a separate counter, wherein, he has repeated the early history of the petitioner, as stated by the other tenant and further added that the petitioner's mother owns the premises bearing Door No.32, Gandhi Irwin Road, Egmore, Madras-8 and she has been doing independent practice in the ground floor in the front two rooms. The said premises consists of ground floor and two floors. The total area of the said premises is 2.5 grounds and the ground floor has got 10 rooms and the first floor and second floor each have 5 rooms. The premises No.32, Gandhi Irwin Road, Egmore, Madras -8, is a palatial multi storeyed building wherein Nursing Home as well as Consultancy Clinic can be carried on. The petitioner, her mother and her 3 year old daughter alone residing in the above said premises. The petitioner is practicing at No.32, Gandhi Irwin Road, Egmore, Madras -8. Her running a Consultancy Clinic in a rented premises at No.165, Nelson Manicka Mudaliar Road, is denied. 11.The petitioner and her mother are now running a Consultancy Clinic at No.32, Gandhi Irwin Road, Egmore, Madras -8 and hence, the petition premises is not at all required for the petitioner. 12.The respondent is running a Tailoring School and also conducting tailoring classes in the petition premises and he has spent money towards maintenance and repair of the petition premises. 12.The respondent is running a Tailoring School and also conducting tailoring classes in the petition premises and he has spent money towards maintenance and repair of the petition premises. It is further stated that the respondent cannot also secure a similar accommodation anywhere in Egmore for his business and the petitioner's intention is only to get enhanced rent and prayed for dismissal of the petition. 13.The petitioner had examined herself as PW.1 and two other witnesses were also examined on her behalf. Exs.P1 to P20 were marked. Annamalai, the respondent in RCOP.No.3988/ 1986, was examined as RW.1 and Manikumar, the respondent in RCOP.No.3989/1986 was examined as RW.2 and Exs.R1 to R13 were marked. Heard the learned Advocate for the revision petitioner and the respondents. 14.The landlady is the owner of the petition premises bearing Door No.33, Gandhi Irwin Road, Egmore, Madras -8, in which there are three shops. Annamalai, the respondent in RCOP.No.3988/1986 is the tenant in respect of Shop Nos.2 and 3 and Manikumar, the respondent in RCOP.No.3989/1986 is the tenant in respect of the Shop No.1. Annamalai has been carrying on Tourist Business in the petition premises and Manikumar has been carrying on Tailoring business in the petition premises. 15.The petitioner / landlady requires the petition premises for her own use and occupation and for starting a Consultancy Clinic. As she being a Doctor and she is being employed in the St.Christopher's Hospital at Royapuram as a Doctor, which is away from the petition premises, the petitioner wants to set up a Consultancy Clinic in the petition premises and therefore, she seeks eviction of the tenants. It is also argued that, as the petitioner is carrying on her Consultancy business at No.165, Nelson Manicka Mudaliar Road and the same is away from the petition premises, she wants to set up a Consultancy Clinic and also wanted to set up a Maternity Centre in the petition premises and her requirement is bona fide. It is also argued that, as the petitioner is carrying on her Consultancy business at No.165, Nelson Manicka Mudaliar Road and the same is away from the petition premises, she wants to set up a Consultancy Clinic and also wanted to set up a Maternity Centre in the petition premises and her requirement is bona fide. 16.Both the Rent Controller and the Appellate authority rejected the claim of the petitioner / landlady on the ground that the petitioner's mother is residing at No.32, which is a palatial building, wherein both the petitioner and her mother are residing and they have already been carrying on consultancy business at No.32, Gandhi Irwin Road, Egmore, Madras-8 and the petitioner does not at all require the petition premises to set up a Consultancy Clinic and also to start a Maternity Centre. 17.The petitioner is a Doctor, who has already been employed in a Hospital, and she has got good experience in her medical field and as such, she need not make any arrangement to start a Consultancy Clinic. At any time, the petitioner, as a Doctor, court start a Consultancy Clinic in the petition premises. 18.Now, we have to consider, whether the petitioner's requirement is bona fide. 19.Section 10(3)(a)(iii) states, "In case it is any other non residential building, if 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 non residential building in the city, town or village concerned which is his own." The requirements of the section are that (1) the premises must be a non residential building, (2) The same is required for the landlord or any member of his family and (3) The landlord is not occupying for the purposes of a business which he or any member of his family is carrying which is his own. It could be seen from the averments in the petition and the evidence that the petitioner is the owner of the premises at No.33 and except that, she does not own any other premises of her own, within the City limits of Madras. It could be seen from the averments in the petition and the evidence that the petitioner is the owner of the premises at No.33 and except that, she does not own any other premises of her own, within the City limits of Madras. No doubt, the petitioner's mother is the owner of the premises at No.32, where the petitioner is also residing and that the said premises is consisting of two floors i.e. ground floor and I floor, and according to the tenants, which is a palatial building, where the landlady can carry on his profession. But, the petitioner is not the owner of the premises bearing Door No.32, and her mother alone is the owner is not in dispute. Under the eye of law, the mother and daughter are separate legal entities and that just because, the petitioner's mother owns the premises bearing Door No.32, Gandhi Irwin Road, Egmore, Madras-8, which is a two storeyed building, would it prevent, the petitioner from claiming the premises of her own to start a Consultancy Clinic and also to establish a Maternity Centre. 20.Section 10(3)(a)(iii) is controlled by Section 10(3)(e), which states, "The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller an if the Controller is not so satisfied he shall make an order rejecting the application." Though, the word 'bona fide' is not there in Section 10(3)(a)(iii), clause (e) of Section 10(3) applies to all cases of eviction falling under Section 10(3)(a) of the Act and therefore, the word 'bona fide' used in sub clause (e) is applicable to the eviction sought under Section 10(3)(a)((iii). Section 10(3)(a)(iii) has got to be read with 10(3)(e) conjointly and then it is incumbent upon the landlord to prove that the claim of the landlord is bona fide. In fact, this aspect of the case was considered by the Supreme Court in the case of Hameedia Hardware Stores Vs. Mohan Lal Sowear (1988-2-LW-1), wherein, it was held, " In the context of a law enacted for preventing unreasonable evictions this Court read into a ground on which a landlord could seek the eviction of his tenant that the landlord should establish that his requirement was bona fide. Mohan Lal Sowear (1988-2-LW-1), wherein, it was held, " In the context of a law enacted for preventing unreasonable evictions this Court read into a ground on which a landlord could seek the eviction of his tenant that the landlord should establish that his requirement was bona fide. A mere desire on the part of the landlord to reconstruct a building was not sufficient to evict a tenant from the premies. He had to establish that he needed the premises bona fide for reconstructing it." Therefore, the element of bona fide on the part of the landlady seeking eviction has got to be proved. 21.The tenants oppose the eviction mainly on two grounds, viz. (1) That The tenants have been there for a long time and the landlady is trying to evict them and to let out the same to the third parties for higher rent and for huge pagadi amount and (2) That The petitioner's mother owns the buildings bearing door no.32, in the same street, which is adjacent to the petition premises and it is a palatial building, where the petitioner is also residing with her mother and she can very well carry on her consultation in that premises. 22.It is true that the tenants have been there for a long time, but, would it rather cloth them with any right to be the tenant for ever and whether they could claim the tenancy in perpetuity. The Act has been enacted only to amend and consolidate the law relating to the regulations for letting of residential and non residential building and the control of rents of such buildings and prevention of unreasonable eviction of the tenants. The Act envisages to prevent only the unreasonable eviction of the tenants, but, that does not mean that the tenant can be there in the premises for ever. 23.In the present case, the petitioner was aged about 35 years on the date of filing of the petition and now she is aged around 52 years and she has been fighting the battle for the past 17 long years, to get possession of her own property and she would be retiring within a period of 5 to 6 years. If the petitioner is not able to get the premises, the ambition of the petitioner to start a Consultancy Clinic of her own and to establish a Maternity Centre would get frustrated. If the petitioner is not able to get the premises, the ambition of the petitioner to start a Consultancy Clinic of her own and to establish a Maternity Centre would get frustrated. The petitioner further stated that she has been running the Consultancy Clinic in a rented premises at No.165, Nelson Manicka Mudaliar road and the same is a rented premises, but the same is disputed by the tenants. But, the landlady does not own any other property in the City of Madras to carry on business of her own is not in dispute. Only in the said circumstances, the petitioner / landlady requires the petition premises for her own use and occupation and the same does not lack any bona fide. 24.The second contention of the tenants is that the petitioner's mother owns the house and premies at No.32, which is two storeyed building and the petitioner and her mother are residing in the upstairs portion and they have already been carrying on the Consultancy business in the ground floor and they have also put up a name board with consulting hours thereon and therefore, they could very well continue the consultancy business at the premises at No.32 and the petition premises is not at all required for the petitioner. It is also contended that the petitioner being the only daughter to her mother and that the petitioner is also having only one daughter, the property of the petitioner 's mother would come only to the petitioner and therefore, she can very well carry on the profession at Door No.32 itself. 25.The question is, even though the premises at No.32 belongs to the petitioner 's mother, would it prevent the petitioner from claiming eviction of the tenants from her own property for the purpose of her own use and occupation, viz. to carry on the Consultancy Clinic and to establish a Maternity Centre. Just because, the petitioner's mother owns premises No.32, can the tenants force the landlady to run her clinic at that premises. The mother may or may not give that premises to the petitioner and as on date, the petitioner is not the owner of the premises bearing door no.32 and therefore, the petitioner's requirement can neither be doubted nor rejected. 26.The tenants are liable to be evicted on various grounds set forth in the Tamil Nadu Buildings (Lease and Rent Control) Act. 26.The tenants are liable to be evicted on various grounds set forth in the Tamil Nadu Buildings (Lease and Rent Control) Act. One of the grounds under Section 10(3)(a)(iii) is that when the landlord, in the case of non residential building, is not occupying for purposes of a business, which he or any member of his family is carrying on, a non residential building, in the City, he is entitled to evict the tenant. In the instant case, we have already seen, the petitioner is not the landlady of the premises at Door No.32, and dehors premises Door No.32, which is owned by her mother and the petitioner is not owning any other premises of her own. As long as the petitioner' s mother is alive, one cannot presume what the petitioner' s mother is going to do with her property. The petitioner cannot, as a matter of fact, claim the mother's property and the mother's property is subjected to so many limitations and conditions and only when it comes to the hands of the petitioner, the petitioner can claim right over the same and till such time, it is an affair, which is doubtful. 27.The petitioner being the owner of the petition premises, she has got every right to start a business of her own and the same cannot be prevented or thwarted by any tenant. 28.The various reasons set out in the Act, is only to safe guard the rights of the tenants, but, the same is also subject to certain limitations and conditions. The limitation is that when the landlord requires the premises for his or her own use and occupation, they are entitled to get an order of eviction. In this case, the petitioner requires the petition premises for her own use and occupation to start a Consultancy Clinic and we cannot impose mala fide on the part of the landlord. It is not the case of the respondents/ tenants that the petitioner is making arrangements to let out the petition premises to the third parties or wants to sell the same, and there is absolutely no evidence to that effect. As the landlady seeks eviction for her own use and occupation, we cannot say that the bona fide on the part of the petitioner / landlady is lacking. 29.The tenants have also relied upon several rulings. 30.In Hameedia Hardware Stores Vs. As the landlady seeks eviction for her own use and occupation, we cannot say that the bona fide on the part of the petitioner / landlady is lacking. 29.The tenants have also relied upon several rulings. 30.In Hameedia Hardware Stores Vs. Mohan Lal Sowear (1988-2-LW-1), wherein the Supreme Court has opined that the claim of the landlord must be bona fide and they have also elucidated the meaning of the word 'bona fide' in Section 10(3)(a)(iii), which is available at Section 10(3)(e) and opined that both could be read together and 10(3)(e) cannot be isolated and thereby, stated that the requirement of the landlord must be bona fide. 31.In M/s.Variety Emporium Vs. VRM.Mohd.Ibrahim Naina (AIR-1985-SC-207), which deals with the court's power to take cognizance of events, which have taken place after the filing of the petition and it was stated that in appropriate cases, the court must have regard to events as they present themselves at the time when t is hearing the proceedings before it and mould the relief in the light of those events. The very same view was reiterated by the Supreme Court in the case of Ramesh Kumar Vs. Kesho Ram (AIR-1992-SC-700). 32.In M/s.Mahalakshmi Metal Industries Vs. K.Suseela Devi (1982-II-MLJ-333), the court had elaborated the Section 10(3)(a)(iii) and stated that the bona fide as stated in 10(3)(e) has got to be complied with. 33.Mala fides were explained in Mohanmed Jaffar Vs. Palaniappa Chettiar (1964-1-MLJ-112), wherein it was observed, "Lack of bona fide is inferred because of the delay in filing the application after the issue of notice to quit and because of the fact that the landlord intends to use the premises in question not immediately but in the future. This argument is the result of misconception of the true meaning and import of the term bona fide in the context in which it appears. If the avowed purpose of requiring additional accommodation cannot be distrusted or characterized as a mere make believe, shift or device to put the tenant out of possession, there can be no want of bona fides. What is meant by bona fides is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purpose". The facts in those cases are totally different from our case and therefore, they are not applicable to the case on hand. What is meant by bona fides is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purpose". The facts in those cases are totally different from our case and therefore, they are not applicable to the case on hand. 34.The learned Advocate for the tenants have also argued that the findings on the requirement of the landlady are concurrent by the courts below and this court cannot ordinarily interfere with those findings under Section 115 CPC and relied upon the case of Smt.Rajbir Kaur and another Vs. M/s.S.Chokosiri and Co, (AIR-1988-SC-1845), wherein it was held, "16. The scope of the revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction. Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a full fledged appeal...... When the findings of fact recorded by the courts below are supportable on the evidence on record, the revisional Court must, indeed, be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the courts below." 35.In our case, the courts below have committed an error in coming to the conclusion that the petitioner's mother owns Premises No.32, in which the petitioner can carry on her profession in consultation and could also establish a Maternity Centre and the fact that the petitioner is not the owner of the said premises was not given a serious thought of, which resulted in passing the orders, which according to this court is erroneous and only on that ground, we are not in a position to accept the findings of the courts below. 36.As it has already been stated that the petitioner was aged 35 years on the date of filing of the petition and now, she is aged about around 52 years and she has been fighting the battle for the past 17 years to get the premises of her own for her own use and occupation is a matter, which weighs much in favour of the landlady and the relative hardship that would be caused to the petitioner / landlady would also be more than the hardship that would be caused to the respondents / tenants. On that ground also, the petitioner / landlady is entitled to have an order of eviction. 37.In the result, the civil revision petitions are allowed and the order and decreetal order passed by the courts below are set aside. The respondents / tenants are given 3 months time to deliver vacant possession of their respective portions to the petitioner / landlady. No costs.