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2004 DIGILAW 490 (MAD)

Mohamed Haneefa v. T. S. Arulanandam

2004-03-19

M.THANIKACHALAM

body2004
Judgment :- The tenant, who was successful in resisting the eviction petition, before the Rent Controller, unable to sustain the same, when it is impugned in the appeal and its result is the revision. 2. The petitioner in R.C.O.P.No.3099/2001, who is the respondent in this revision, is the owner of the premises, described in the petition, being a non residential one, in which the revision petitioner/tenant is running a shop. The landlord moved this application for the eviction of the tenant, only on the ground that the premises is bona fide required for him, for the purpose of running a business, since he is not having any other non residential building in this city. 3. The tenant/revision petitioner opposed the application contending, that as such the petitioner/landlord is not carrying on any business of his own and therefore, the requirement is not at all bona fide. It is further contended that his livelihood depends solely on the petition shop premises and if he is dispossessed, it will cause great hardship and irreparable loss. 4. The learned Rent Controller, accepting the case of the tenant/revision petitioner, rejecting the contention of the landlord, dismissed the application on 22.12.1995, which was impugned by the landlord in R.C.A.No.647/96 on the file of the Rent Control Appellate Authority. 5. The Rent Control Appellate Authority on reappreciation of the evidence, as well as on application of settled proposition of law, unable to concur with the findings of the Rent Controller and in this view, he concluded that the petitioner comes within the meaning of a person, who is carrying on business and his requirement is bona fide. In this view, the R.C.A. was allowed, ordering eviction, which is under challenge before this Court. 6. Heard the learned counsel for the petitioner, M.M.Md.Sadakathulla and the learned counsel for the respondent, Mr.K.P.Ashok. 7. Perused the documents, evidence and orders of the courts below very carefully, in view of the reversal finding. 8. The learned counsel for the revision petitioner submits, that admittedly even as per the case of the landlord, he is not carrying on any business, as contemplated under Section 10(3)(a)(iii) of the Act and therefore, there could be no bona fide in his claim, which was correctly appreciated by the Rent Controller. In this view, he submits that the order of the Rent Control Appellate Authority, which is against the admitted facts, should go. 9. In this view, he submits that the order of the Rent Control Appellate Authority, which is against the admitted facts, should go. 9. Per contra, the learned counsel for the respondent submits, that admittedly the petitioner is carrying on business under the name and style of 'K.M.Abbu Chettiar Oil Mills', in partnership along with his relation and the said business should come with in the definition of 'a person carrying on business' and in this view, he satisfied the main ingredients required under Section 10(3)(a)(iii) of the Act. It is also the further contention of the learned counsel that he is not owning any other non residential building of his own and in this view also, no doubt could be raised on the requirements for personal occupation. In this context, we have to see the provisions relating to the point in issue and the fact, whether the landlord comes within the four walls of the said Section. 10. In the petition itself, it is not the case of the petitioner, that he is carrying on business independently in any rented premises or he intended to start a new business of his own, for which he had taken any initiative. On the other hand, the definite case of the landlord is that he is carrying on business under the name and style of 'K.M. Abbu Chettiar Oil Mills', in partnership along with his mother Unnamalai Ammal and brothers, T.S. Panneerselvam, T.S. Muruganandam, in a rental premises, for which the tenancy stands in the name of the petitioner's mother. The partnership business carried on by the petitioner and his family members, as averred in paragraph-4 of the petition, is not under challenge. The petitioner as P.W.1 would state, he wants to have his independent business of the same nature, after coming out from the partnership firm, thereby indicating at present, i.e. on the date of filing of the application, he is not carrying on any business in its grammatical meaning. Therefore, we have to see whether the partnership business run by the petitioner and his relatives would come within the meaning of 'a person carrying on business'. 11. Therefore, we have to see whether the partnership business run by the petitioner and his relatives would come within the meaning of 'a person carrying on business'. 11. Section 10(3)(a)(iii) reads: "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". 12. The learned counsel for the landlord submits, that the admitted fact the petitioner is carrying on business in a partnership firm alone, is sufficient, to bring him within the four walls of the above Section, placing reliance in Perumal Pallavarayar v. S. Balasubramanian ( 2002 (3) CTC 193 ). In the case involved in the above decision, the landlord and his brothers were doing wholesale business in the name and style of 'L.G. Perungayam', in which that landlord was a partner. It seems, that petitioner therein wanted to do the same business on his own, separately, in the demised premises, belonging to him and therefore, he moved the Rent Controller, for eviction, since the oral request was turned down by the tenant. In that case, this Court has took the following view: "Considering the interpretation placed on the provision, it is clear that the landlord is not only having an intention, but he is actually carrying on the business, which is a joint family business of the same nature and therefore, once the building is made available, it can be used for his own, independent business. The case of a landlord who is yet to commence the business will not apply to the respondent in this case, as he is already a partner in a joint family business and carrying on the said business with the knowledge, funds and having no other non-residential building for the said purpose, he requires it for his own, separate business and hence, it has to be held that the requirement is satisfied. Therefore, on facts and in the circumstances, the citations referred to by the counsel for the respondent will be of no assistance to him." Considering the experience gained by the landlord in the partnership business, even in the absence of any preparation, it is held that the requirement of the landlord, comes within the meaning of "a person carrying on business" and this case cannot be compared with other case, where the landlord has no business of his own, where he had intention alone to commence the business, without experience or something like that. More or less the facts of the case relied on above, are similar to the facts of the present case on hand and the ratio laid down in that case based on number of previous decisions, squarely applicable to this case also. In this case, the Rent Control Appellate Authority is justified in concluding that the petitioner, though has not carried on business in the actual meaning, the fact that he is carrying on business in the partnership business, is sufficient, to claim the demised premises, since he is not owning any non residential building in the town. It is the specific case of P.W.1 that he is not owning any non residential building, for the purpose of the said business. It is not established by other side that the landlord is owning any other building of his own, where he can start the intended business, coming out from the partnership business. Therefore, the requirement of the landlord appears to be genuine and I am unable to find any coating of malafide, whereas bona fide is in abundant. 13. The learned counsel for the tenant urged that, at least the landlord must prove that he had initiated steps to start the new business, coming out from the partnership business and in the absence of any such evidence, on the mere expression to start business, it cannot be said that the requirement is bona fide. 13. The learned counsel for the tenant urged that, at least the landlord must prove that he had initiated steps to start the new business, coming out from the partnership business and in the absence of any such evidence, on the mere expression to start business, it cannot be said that the requirement is bona fide. Considering the nature of business that the petitioner is carrying on, and the built in provision available in the Act, to safeguard the interest of the tenant, as well as to punish the landlord in the absence of obeying the order, in this view, the bona fide of the landlord need not be scanned very minutely, in a hairsplitting way, whereas it is sufficient to find out, whether the petition is intended only for the purpose of evicting the tenant or the petition is aimed to have the premises to have his own business. I am unable to find any alternative defence, such as claim of enhancement of rent or stained relationship between the tenant and the landlord, to invoke this provision for the purpose of evicting the tenant. Looking this case from this angle also, I am unable to find any iota of doubt in the requirement of the landlord. 14. The landlord is experienced in the oil business, not in dispute. Because of some misunderstanding between the partners, the petitioner wants to come out and it is not necessary that he should dissolve the partnership, in anticipation of starting the business of his own in this premises, which is not possible. In a case of Rent Control proceedings, it takes a minimum of 10 years or so to reach the finality, at least up to the High Court. It is not possible for a person who is doing partnership business to come out of the partnership business immediately, to show his bona fide. There is no certainty that the landlord would be given the premises immediately, on his coming out from the partnership business. If he comes out from the partnership business and the premises is not available immediately, then he will be without any business for years together, detriment to his interest, affecting his day-to-day earning and life also. Therefore, one cannot expect that the partner should come out from the joint business, in order to show his bona fide. If he comes out from the partnership business and the premises is not available immediately, then he will be without any business for years together, detriment to his interest, affecting his day-to-day earning and life also. Therefore, one cannot expect that the partner should come out from the joint business, in order to show his bona fide. Even non issue of notice, claiming to come out from the partnership business is also not necessary in these kind of cases. Therefore, the contention of the learned counsel for the respondent, that the landlord has not even initiated any step, to dissolve the business or to take out any license or something like that, fails to inspire to make out a case, doubting about the bona fide. In this context, we have to see the safeguard provided under the Act. 15. Section 10 (5)(a) mandates that the landlord who obtained possession of a building under sub Section (3), should occupy the same within one month from the date of obtaining possession. It further says, without reasonable cause, within six months from the date of occupation, he should not vacate the premises also. The relevant Section reads : "Where a landlord who has obtained possession of a building in pursuance of an order under sub-section (3) or sub-section (3-A) does not himself occupy it within one month of the date of obtaining possession or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building and the Controller shall make an order accordingly, notwithstanding anything contained in section 3." Thus it is seen, positively and negatively, restrictions are imposed upon the landlord, not only to occupy the premises, but also not to vacate the premises, without reasonable cause, within the statutory period. If the petition is intended only to evict the tenant and if the landlord fails to occupy the same and for name sake occupying then unnecessarily vacating, a right is given to the tenant to move the Rent Controller, for restoration of possession. In this view, the tenant's right is secured and on taking possession, the landlord cannot sit idle, without commencing the business, coming out from the partnership business. 16. In this view, the tenant's right is secured and on taking possession, the landlord cannot sit idle, without commencing the business, coming out from the partnership business. 16. Section 33 of the Act contemplates penalties, wherein threat is contemplated against the landlord, who contravenes the eviction order, for which purpose eviction was sought for. If the landlord fails to occupy the building within a month or occupying so, then vacating the premises within six months, without reasonable cause, a punishment of fine of up to Rs.2000/- is contemplated. The relevant Section viz., 33 (1-A) reads: "Any landlord or the member of his family, as the case may be, who, after obtaining possession of a building under sub-section (3) or sub-section(3-A) of section 10, does not occupy it within one month of his taking possession or having so occupied, vacates it without reasonable cause within six months of such date, shall be punishable with fine which may extend to two thousand rupees." In view of this provision alone, at the out set, I have stated that no acid test is required to test the bona fide of the landlord, when a claim is made under Section 10(3)(a)(iii) of the Act, since sufficiently the right of the tenant is protected otherwise. 17. The learned Rent Controller instead of looking the case from prospective angle, viewed the same from narrow-mindedly, which was set right by the Rent Control Appellate Authority, considering the status of the petitioner and his requirement, which cannot be doubted, for the reasons assigned by me supra also. In this view, I find no merit in the revision and the same is liable to be dismissed as devoid of merits. In the result, the revision is dismissed, but under the facts and circumstances of the case, ordering the parties to bear their respective costs throughout, directing the tenant to put in possession of the landlord, within four months from this date.