Judgment :- (This petition is preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree dated 13.02.2003 made in RCA No.11 of 2001 on the file of the Appellate Authority (Principal Sub Judge), Nagercoil, Kanniyakumari District, confirming the order and decree dated 27.4.2001 made in RCOP No.79 of 1992 on the file of the Rent Controller, Nagercoil, Kaniyakumari District.) The tenant, who suffered an eviction order, concurrently, in the hands of the courts below, is the revision petitioner. 2. The respondent/landlord has filed a petition before the Rent Controller, Nagercoil in RCOP No.79 of 1992, seeking an order of eviction of the tenant/revision petitioner, from the demised premises on the grounds; that the building is required for his personal occupation for the purpose of carrying on his individual business, which he is carrying on, since he is not owning any other building of his own in the town and that the tenant had wantonly committed willful default in payment of rents for the months October, November and December, 1988, further alleging that the partnership business between himself and his family members is entirely a different business. 3. The revision petitioner/tenant opposed the grounds for eviction, contending that there is no default in payment of rents, much less any willful default, that the petitioner is not carrying on any business of his own, as alleged, that he is in occupation of the upstairs of the building, which is more than sufficient, even assuming that he is carrying on business, for his occupation and that the building, in which, it is said, he is carrying on business, namely NMC 54-A belongs to joint family and that in view of the above facts, the tenant, who is entitled to protection under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called "the Act", from the unlawful eviction, should be protected by dismissing the rent control petition. 4. 4. The learned Rent Controller, after assessing the materials placed before him, came to the conclusion that the tenant had committed willful default in payment of rent, thereby entitling the landlord to get an order of eviction, that the landlord, who is carrying on business, is not owning or occupying any non residential building of his own in the city and the tenant, who contended that the landlord is occupying the non residential building of his own, failed to establish the same and thus, concluding, satisfying himself about the bona fide also, slapped an order of eviction upon the tenant, directing him to hand over possession, as per order dated 27.4.2001, which came to be challenged before the appellate Authority in RCA No.11 of 2001, i.e. on the file of the learned Principal Subordinate Judge, Nagercoil. 5. The Rent Controller, as seen from the order of eviction, has concluded based upon certain documents that the landlord is carrying on business in software materials at Door No.54-A individually and for the occupation of the said business, he is not owning any other non residential building of his own. Though the rent controller has given a finding that the landlord is having his business at Door No.54-A, which does not belong to him, he has not given any finding who is the owner of the said premises, under what capacity the landlord is occupying that premises for the purpose of carrying on his business, at present. 6. When the appeal was pending before the learned Appellate Authority, probably the landlord felt that he was in a slippery ground as far as willful default is concerned and in this view, it appears he has not pressed the ground for willful default for eviction. Therefore, the same stand is adopted here also. 7. As far as the other ground is concerned, the learned Appellate Authority appears to have come to the conclusion that the landlord, being a member of the joint family, involved in a joint business or partnership business and at present, he wants to come out from the same, thereby to carry on a business of his own, for which the demised premises is required for his personal occupation. Probably, taking this kind of view, based upon certain judicial precedents, as seen from the end of the judgment, an observation is made "kD brhj;jpy; fPHik ePjpkd;w kDjhuh;/vjph; nky;KiwaPl;lhsh; jhd; tpahghuk; bra;tjhf ve;j tpj MtzKk; jhf;fy; bra;atpy;iy> Mfnt mth; Tl;Lf; FLk;gj;jpy; xU mq;fj;jpdh; vd;Wk;> mth; Tl;Lf; FLk;gj;jpYs;s gy;ntW brhj;Jf;fspy; ,ize;J bray;gl;LtUfpwhh; vd;Wk;> mth; ntz;Lk; vd;nw jdpahf bray;glntz;Lbkd;W Twpf;bfhz;L> me;j mog;gilapy; thlifjhuiu fhyp bra;a Kaw;rpf;fwhh; vd;gJ MFk;". As said above, the Rent Controller has taken a view that the landlord is carrying on his own business at Door No.54-A, which appears to be not confirmed or not even discussed. Viewing the case from different angle, but concurring with the result of the rent controller, the eviction order was confirmed for personal occupation, namely under Section 10(3)(a)(iii) of the Act, as per judgment, dated 13.02.2003, which is under challenge in this revision. 8. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 9. The subject matter of RCOP is an extent of two cents of land in Survey No.D8/43 of Nagercoil Village with building N.M.C.16/1-50-B. Now, it is not in dispute that the petitioner in RCOP is the owner of the same, thereby coming within the meaning of the landlord. The petitioner, who has been examined as P.W.1, is an Engineering Graduate, undoubtedly having a skill in computer software and to carry on business also successfully, depending upon his performance. The property was purchased by his father, as admitted by P.W.1, as per sale deed, dated 9.9.1988. Under this document, the total extent purchased was 20 cents with some buildings. It is reported that the remaining extent (ground) is in the occupation of the landlord. Admittedly, the tenant is occupying only two cents and the building thereon. It is also in evidence that even in the building, the upstairs is not in the occupation of the tenant, whereas it is in the occupation of the landlord, in which case, a doubt would arise whether the requirement of the petitioner for personal occupation, namely for the purpose of carrying on business, would arise or not in view of the fact, he is owning and possessing a portion of the building, namely in this case, non residential one. If it is the case of the landlord, as disclosed in the evidence that he is in occupation of the upstairs, if at all he can ask for additional accommodation, not for personal occupation as contemplated under Section 10(3)(a)(iii) of the Act, be that as it may. Now, the landlord claims he is carrying on business in a building, which he is not owned, and therefore, he requires this building to shift the business, bona fidely. In this view alone, Section 10(3)(a)(iii) of the Act is invoked. 10. In order to sustain and succeed in a petition for eviction under Section 10(3)(a)(iii) of the Act, the essential ingredients, unavoidably, are (1) it should be shown that the landlord, if the requirement is for him, is not occupying a non residential building in the city, town or village, as the case may be, which is his own, (2) that the landlord must be carrying on business, for which purpose, the requirement must be projected. In case, the landlord fails to establish the above ingredients, the protection extended to the tenant shall prevail and eviction is an impossibility. 11. The learned counsel for the revision petitioner/tenant submitted with authenticity that the landlord is occupying a non residential building of his own in the town of Nagercoil and in this view, he is not entitled to get an order of eviction, because of failure to satisfy one of the grounds adumbrated in Section 10(3)(a)(iii) of the Act. It is the further submission of the learned counsel for the revision petitioner that both the courts below have committed an error and even it could be said that they have recorded a finding not based on evidence, thereby labelling the same as perverse in nature and in this view, interference of this court is required, inspite of the concurrent finding, to find out whether the landlord is entitled to an order of eviction. 12. 12. In response to the above submission, the learned counsel for the respondent/landlord would contend that the premises, in which the landlord is carrying on business neither belongs to him nor belongs to joint family, where he can claim co-ownership and in this view, it is made out that the landlord, who is carrying on business, is not occupying for the purpose of business, which he is carrying on in a non residential building in Nagercoil, which were properly considered by the courts below, ordering eviction, which should receive the seal of approval by this Court. 13. By going through the evidence available on record, giving my deep consideration to the above submissions made by either counsel and applying the correct provisions of law, as declared by the Apex Court, I am constrained to say "No" to the landlord, whereas compelled to say "Yes" to the tenant, giving protection, since it appears to my mind that the petition is aimed only to evict the tenant, who has got protection under the Act. The grounds conferred under Section 10(3)(a) of the Act upon the landlord is not a accrued right, whereas it is a conferred right, which could be enforced scrupulously against the tenant unmindful of the protection given therein, whereas that right is given subject to certain condition, as said above and unless and until that conditions are fulfilled, Section 10(3)(a)(iii) of the Act cannot be enforced straight-away, taking a lenient view, that the landlord is entitled to carry on business of his own, in his own premises. 14. It is true, in a joint family, which would be always expanding, there may be persons aspiring to spread their wings towards business to augment income, in order to have flourished life, etc, for which they may require their building, which are in the occupation of the tenant. If that alone is the criterion, the Rent Control Act is not made applicable to those premises and the common law alone comes to the aid then easily eviction could be maintained certainly not in the case of building, which comes within the protective umbrella of the Rent Control Act. If that alone is the criterion, the Rent Control Act is not made applicable to those premises and the common law alone comes to the aid then easily eviction could be maintained certainly not in the case of building, which comes within the protective umbrella of the Rent Control Act. In my considered opinion, the landlord's case, though he is an Engineering graduate, may have aspiration to start business, comes within the later part, thereby restricting his claim, the further fact being, his aim is not totally altogether curtailed and in fact, he is having every avenue and opportunity to fulfill his aspiration, which are well disclosed in the evidence of his own, which I will advert infra. 15. In case of personal occupation coming under Section 10(3) of the Act, in my considered opinion acid test of bona fide as said in Section 10(3)(a)(e) of the Act may not loom large, though satisfaction is mandate, because of inbuilt protection available under Section 10(5) of the Act, wherein provisions are made, enabling the tenant, to move rent controller for restoration of possession, in case the landlord does not himself occupy the building within one month of date of obtaining possession or occupied so, vacates the same without reasonable cause within six months. The inbuilt provisions will certainly safeguard the tenant against unhealthy eviction, claiming shadow bona fide and in this view, I should say, in this kind of case, though bona fide is to be seen, it is not to be so tested acidly. In this context, we have to remember the pleadings, then only the requirements should be tested, such as whether it is aimed to get the building by some way or other, or the aim was only to occupy the building for the purpose of carrying on his own business. 16. The landlord, in paragraph 4 of his petition said that "the petitioner is carrying on his business with other person's permission in another premises". Further down, he says what is the nature of the building, then wordly, complying with the requirement of Section by saying "the petitioner has no building of his own in his occupation at Nagercoil", thereby making an attempt to fulfill the ingredients required for Section 10(3)(a)(iii) of the Act. Further down, he says what is the nature of the building, then wordly, complying with the requirement of Section by saying "the petitioner has no building of his own in his occupation at Nagercoil", thereby making an attempt to fulfill the ingredients required for Section 10(3)(a)(iii) of the Act. The building, which he is occupying for the purpose of carrying on business, at present, is known to him (presumed) and the same must be within his knowledge. Therefore, irrespective of the burden of proof, it is for the petitioner to say that the building where he is carrying on business, belongs to him or does not belong to him or who is the owner and under what condition, he is occupying the building, etc., which are elegantly absent in this case, which should have some bearing while deciding the other part of the case. 17. Then, coming to the defence, it is the specific case of the tenant, that the petitioner is not carrying on any business of his own, and that assuming that he is carrying on business, he is only doing joint family business along with his father in a portion of the building situated in their own premises. It is further said that premises is the joint family property and the petitioner has got a share therein, where there is sufficient space for the petitioner to start any fresh business, if he so chooses. In the additional counter, it appears, as seen from the extracts available in the lower court judgment at paragraph 4, the tenant has taken a stand that the petitioner is doing business at Door No.NMC 54-A, thereby to flush him out from the purview of Section 10(3)(a)(iii) of the Act. At least, thereafter, the petitioner ought to have explained, to satisfy the controller, where he is doing business, who is the owner, what is the terms and conditions, whether 54-A belongs to joint family or belongs to a third party, etc., which he failed in this case by pleadings. It is not the case of failure in the pleadings, but also utter failure while letting in evidence also. 18. The submission of the learned counsel for the landlord that the pleadings in the rent control proceedings, should not be construed strictly is not applicable always, though it may be applicable to certain cases or certain kind of pleadings. It is not the case of failure in the pleadings, but also utter failure while letting in evidence also. 18. The submission of the learned counsel for the landlord that the pleadings in the rent control proceedings, should not be construed strictly is not applicable always, though it may be applicable to certain cases or certain kind of pleadings. When the case is painted, to throw out the tenant from the nonresidential premises under Section 10(3)(a)(iii) of the Act, minimum pleadings are needed, satisfying the requirements, which are conspicuously absent. I should say, at least, at the time of giving evidence, P.W.1 should have explained, then satisfying not only the controller, but also the higher authorities, who exercise the power of controller, to order eviction under the Act, which is also not done in this case. But, unfortunately, both the courts below went in different direction, but concluded that the tenant should be evicted, which conclusion appears to be erroneous, since no findings based on record are recorded, and the findings, available, I could say, are recorded against the evidence, and in this view alone, it is said supra, interference of this court is necessary. 19. The family of the landlord, i.e. his father and his brother, partitioned their joint family properties under a document, dated 20.01.1977 (Ex.R.52). In the said partition, properties were allotted, including the buildings, to the father of P.W.1 in Old Survey no.1382/366 equivalent to new survey No.D8/44, 45 situated on the northern side of Cape Road, Nagercoil and measurements were also given for the properties allotted. If the landlord, i.e. the respondent herein, is in occupation of any building, which is in the above said extent, it should be presumed that he is in occupation of the building belongs to family, being the member of the joint family, as co-owner or co-sharer, as the case may be. 20. It is the specific case of Mr.V.Sarangapani, learned counsel for the tenant, that Door No.54-A, which in the occupation of P.W.1, where he is carrying on business, belongs to the joint family, in which he is entitled to a share and this being the position, as per the rulings of the Apex Court, he is occupying the building of his own, though co-sharer, in which case, his case will not come within the ambit of Section 10(3)(a)(iii) of the Act. For this submission, I am unable to find any answer from the other side, though an attempt was made to say that the business carried on therein is a joint family business, not individual business of P.W.1. This submission fails to take aid from the evidence of P.W.1, whereas the evidence given by P.W.1 weakens the stand, strengthening the defence, doubting the findings recorded by the courts below, though concurrent, prompting me to take a different view. In this view, the main question, we have to decide is whether Door No.54-A, in which P.W.1 is carrying on business, comes within the meaning of owning the non residential building, as envisaged under Section 10(3)(a)(iii) of the Act. 21. P.W.1 admits that there was no partition in the family. Their family is owning two businesses, is also admitted and one business is called Sundar Radios run in the name of the father and another business is called Sundar Service, which is carried on at Door No.54-B. P.W.1 also admits, in the property situated on the northern side of Cape Road, which belongs to the family, they are having buildings bearing Door Nos.50, 50A, 50B, 51, 52, 53, 54, 54A, 54B1, 54C, 55, 56, 57, 58, 59, 60, 60A and 60B. At one stage, P.W.1 would state, Sundar Home Appliance is a joint family business run in Door No.54-A, then exhibiting his ignorance. It is elicited during cross examination that he requires building for the purpose of shifting the business, which he is carrying on at Door No.54-A, which belongs to his father. Relevant deposition in Tamil reads "ehd; jw;nghJ 54-A fl;olj;jpy; jw;nghJ elj;jpf; bfhz;oUf;Fk; tpahghuj;ij elj;JtJw;F jhth brhj;ij nfl;L tHf;F jhf;fy; bra;ag;gl;Ls;sJ. 54-A vd; mg;ghtpw;F ghj;jpag;gl;lJ. me;j fl;olk; cs;s brhj;J vdJ je;ijf;F mg;ghtplkpUe;J fpilj;j brhj;jh vd;why; vdf;F bjhpahJ." He further reiterates that for the premises where he is carrying on business, at present, he is not paying rent to anybody and the relevant deposition reads "jw;nghJ tpahghuk; bra;a[k; 54A fl;olj;jpw;F ehd; thlif ahUf;Fk; bfhLf;ftpy;iy. 54A vd;w fl;olj;jpy; kD ghuh.4-y; Fwpg;gpl;Ls;s bjhHpy;fs; midj;ija[k; jw;fhypfkhf bra;J bfhz;L tUfpnwd;. ,e;j bjhHpy;fis Rkhh; 5 Mz;LfSf;F Kd;g[ Muk;gpj;njd;." It is further ascertained that "ehd; gp]pd]; bra;tJ xU jdp U:k;. me;j U:k; 54A -y; cs;sJ. ehd; 54Ay; tpahghuk; bra;J tUtjhf bkapd; bgl;odpy; brhy;ytpy;iy", thereby proving that the business claimed in the petition is only in Door No.54-A and not in any other place. ,e;j bjhHpy;fis Rkhh; 5 Mz;LfSf;F Kd;g[ Muk;gpj;njd;." It is further ascertained that "ehd; gp]pd]; bra;tJ xU jdp U:k;. me;j U:k; 54A -y; cs;sJ. ehd; 54Ay; tpahghuk; bra;J tUtjhf bkapd; bgl;odpy; brhy;ytpy;iy", thereby proving that the business claimed in the petition is only in Door No.54-A and not in any other place. A thorough reading of entire evidence, as a whole and considering his admission, that Door No.54-A is also on the northern side of Cape Road, which is covered under Ex.A.1, the irresistible conclusion that could be drawn must be the building, in which the petitioner, at present, carrying on business, must be the joint family property, in which the petitioner being a co-owner is entitled to a share. Thus, fixing the place of business of the landlord, for which purpose he is demanding the demised premises, we have to see what the law says. 22. The learned counsel appearing for the revision petitioner/tenant submitted that if the landlord is occupying a non residential building, for the purpose of carrying on business, though it is a joint family property, such a person is not entitled to invoke section 10(3)(a)(iii) of the Act, seeking aid of the law declared by the Apex Court in Super Forgings and Steels (Sales) Private Limited Vs. Thyabally Rasuljee (dead) through L.Rs reported in 1995-I-MLJ-59. In the case involved in the above decision, the subsequent events took place brought to light that the landlord therein was occupying a non residential building, which belonged to the family, wherein the landlord is entitled to a share as co-owner. The question before the Apex Court was, whether such a co-owner, who is occupying the property as co-owner for the purpose of carrying on business, is entitled to invoke Section 10(3)(a)(iii) of the Act. The Apex Court, considering the scope of ownership available to the co-owner, as well as considering the word used in Section 10(3)(a)(iii) of the Act, namely "his own", came to the conclusion that such a landlord is not entitled to retain the eviction order, since he cannot be labelled as a person, not occupying his own non residential building, for the purpose of carrying on business. 23. This decision confirms and reaffirms the previous rulings also, wherein the right of the co-owner was considered. 23. This decision confirms and reaffirms the previous rulings also, wherein the right of the co-owner was considered. In that case, all the courts below concurrently have given a finding, that the landlord is entitled to an order of eviction, on the ground that the landlord is not occupying the premisses of his own for the purpose of carrying on business. While assigning reason for reversing the judgment of the courts below, the Apex Court ruled that:- "If a landlord is a co-owner of a non-residential building in the city, town or village concerned, which he is occupying for purposes of carrying on his business, will he not be occupying therefor, a non-residential building of his own envisaged in the above Sec.10(3)(a)(iii) as would disentitle him to the ground of eviction available thereunder being the real question needing out answer in the light of the aforesaid plea of learned counsel for respondents urged in questioning the sustainability of the contention raised on behalf of the appellant-tenant we have to find the answer therefore. 10. The answer to the said question, in our view, cannot be anything other than that a non-residential building in occupation of landlord which is 'his own' envisaged in Sec.10(3)(a)(iii) above, is not only that of which he is an absolute owner but also that of which he is co-owner, for a co-owner of a building who is its landlord is regarded under Rent Control Laws of our country as its owner entitled to obtain possession of such a building from a tenant for his bona fide requirement." which is based upon a decision of the three judge Bench of the Apex Court. 24. Considering the scope of the ownership as far as the co-owner is concerned, it is also observed, "... We are of the opinion that co-owner is as much an owner of the entire property as any sole owner of a property is." In view of the above settled propositions of law coupled with the findings recorded by me supra, the irresistible conclusion that should emerge is, that this landlord is not entitled to an order of eviction, on the ground of personal occupation, which is sought to be brought under Section 10(3)(a)(iii) of the Act, which were not properly considered by the courts below, thereby warranting my interference, though concurrent in eviction. 25. 25. The submission of the learned counsel for the landlord, that the landlord, presently in occupation of another non residential building can not be a ground to deny the bona fide claim; based upon the decision of the Apex Court reported in M. Padmanabha Setty Vs. K.P.Papiah Setty ( AIR 1966 SC 1824 ) fails to lend any support, because of the factual difference. In the case involved in the above decision, it is seen, as disclosed that the landlord was occupying another non residential building as tenant, not as owner or co-owner, as the case may be and in this view, it is well distinguishable. 26. In Akhileshwar Kumar and others Vs. Mustaqim and others (2003-1-SCC-462), the declaration by the Apex Court, that "A detailed, exhaustive judgment, in which every bit of available evidence and relevant circumstances have been taken into consideration and assessed with objectivity, consistently with the relevant legal principles, cannot be upset by High Court in exercise of revisional jurisdiction." is also not available to the landlord, since for the reasons recorded by me above, judgment of the courts below cannot be brought under the above said observation of the Supreme Court. 27. The view or dictum declared by the Apex Court in Lingala Kondala Rao Vs. Vootukuri Narayana Rao (2003-1-SCC 672) also may not be applicable to the case, on hand. In the case involved in the above decision, in the joint Hindu family premises, there was a joint family business, in which the landlord, who is owning an independent building, which was under occupation of the tenant, also had a share. That landlord had a desire and decided to come out from the joint family business and to have a business of his own, which is not barred under any law. It was not the case, that exclusive building owned by him was required by the landlord therein, to carry on joint family business. In this view, considering the fact the the joint family member is entitled to have his own business, the Apex Court has taken a view, as understood, that such a landlord is entitled to an order of eviction, since he cannot be described as a person owning a building, for the purpose of his individual business, as claimed in this case. Basically and factually, since the case is distinguishable, the said ruling also fails to advance the case of the landlord, to confirm the eviction rendered by the courts below. 28. This Court in Annamalai Vs. Nizar Ahamad (2000-2-MLJ-471) had taken a view, that a joint family member, who is running business in joint family property, is entitled to seek eviction of the tenant, on the ground that the building, in which he is doing business, is not suitable for his business, in view of the dispute or misunderstanding arose between father and the son. It appears to be, somewhat analogous to the present case. But, in view of the dictum laid down by the Apex Court in Super Forgings and Steels (Sales) Private Limited, I am afraid to say, this could be the correct position of law and in this view, applying this ratio, eviction cannot be sustained. However, on fact also, it seems, the case is distinguishable. As seen from the judgment, the landlord in that case, had started business in a building belongs to his father alone, and the business alone belongs to him, thereby showing he has no right of co-ownership over the said building, since the father was alive and that kind of situation is not available here, whereas it is established that Door No.54-A must be the joint family property. 29. The landlord, though a qualified person, competent to have his own business, law does not permit him to evict the tenant, in this case, because of the established fact that he is occupying the premises of his own. Further, the oral evidence of P.W.1 alone had acted against his case, coupled with the pleadings, since he was not certain what was his case, what is the business, where it is carried on, etc. However, the evidence extracted, even in Tamil, above coupled with the recent pronouncement of the Apex Court, compelled me to take an unavoidable conclusion, that the eviction order passed by the courts below is erroneous not only on facts, but also on law and in this view, in order to interfere, I am inclined to allow the revision. 30. In the result, the revision is allowed. The orders of the courts below are set aside and the RCOP No.79 of 1992 is dismissed, but under the facts and circumstances of the case without cost, throughout.