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2007 DIGILAW 3674 (MAD)

Govindaraj v. H. Suraj Bai & Another

2007-11-20

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This revision has been preferred against the judgment in RCA.No.1228 of 2005 on the file of the VII Judge, Small Causes Court, Chennai, which had arisen out of the order in RCOP.No.1144 of 2004 on the file of the Rent Controller (X Judge, Small Cause Court) Chennai. The tenant, who had lost his case before the Courts below, is the revision petitioner herein. 2. RCOP.No.1144 of 2004 was filed before the Rent Controller (X Judge, Small Causes Court, Chenna) under Section 10(3)(a)(iii) of the Tamil Nadu Building (Lease & Rent Control) Act, 1960, (herein after "the Act" for short). 3. The brief facts stated in the petition filed by the petitioner/landlord is that the respondent became tenant under the petitioner/landlord for non-residential purpose in a land measuring 387 sq.ft and 412 sq.ft for a monthly rent of Rs.1,750/- and Rs.2,000/-respectively. The petitioners husband is doing pawn broker shop at Door NO.18, 4, 3, & 21 in Dr.Sathasivam Road, T-Nagar, Chennai-17. So the shops in possession of respondents 1 & 2 are absolutely necessary for the petitioner in good faith. The petitioners husband is not having any other building at Chennai. The petitioner through her agent had approached the respondents to vacate and hand over the petition schedule properties, but they refused to accede to the request made by the petitioner. The petitioner issued notice to the respondent. In the reply notice, the respondents would contend that the entire first floor of the petition scheduled premises is being used for residential purpose of the petitioner and the ground floor is being used by the petitioner and her son for conducting their business. Hence, the petition for eviction. 4. The respondents in their counter would contend that the relationship between the landlord and the tenant as alleged in the petition is admitted and the monthly rent is being Rs.1,750/- and Rs.2,000/-. The petitioner has filed RCOP.No.1142 of 2004 for fixation of fair rent for the petition schedule properties. The respondents family are eking their livelihood only from the income derived from the business conducted by them in the petition scheduled building. If the respondents are evicted from the petition schedule building that will cause irreparable loss and injury to the respondents. 5. The respondents family are eking their livelihood only from the income derived from the business conducted by them in the petition scheduled building. If the respondents are evicted from the petition schedule building that will cause irreparable loss and injury to the respondents. 5. On the side of the petitioner P.W.1 and P.W.2 were examined and Ex.P.1 to Ex.P.15 were marked and on the side of the respondents R.W.1 and R.W.2 were examined and Ex.R.1 and Ex.R.2 were marked. 6. After meticulously scanning the evidence let in before him, the learned Rent Controller has come to the conclusion that the petitioner is entitled to get an order of eviction and accordingly, allowed the petition thereby ordering eviction of the respondents giving two months time to vacate and hand over possession. Aggrieved by the findings of the learned Rent Controller, the tenants preferred RCA.No.1228 of 2005 before the Rent Control Appellate Authority ( VII Judge, Small Causes Court, Chennai). The Rent Control Appellate Authority, after giving due deliberations to the submissions made by the learned counsel for the petitioner as well as the respondents, has come to the conclusion that there is no material to set aside the findings of the learned Rent Controller and has dismissed the appeal thereby confirming the findings of the learned Rent Controller, which necessitated the tenant to file this revision petition. 7. Heard the learned Senior Counsel Mr.M.Venkatachalapathi appearing for the revision petitioner and the learned Senior Counsel Mr.AR.L.Sunderesan appearing for the respondents and considered their respective submissions. 8. The learned counsel for the revision petitioner would contend that the petitioner Tmt.H.Suraj Bai had filed this petition through her power of attorney agent her son Jagadeesh Prasad under Section 10(3)(a)(iii) of the Act claiming that the non-residential suit building, in occupation of the tenant is required for the purpose of her husband (P.W.2) to run his business. The learned counsel for the revision petitioner would contend that the petition filed under Section 10(3)(a)(iii) of the Act by the landlord is not maintainable, but the eviction petition ought to have been filed under Section 10(3)(c) of the Act. In support of this contention, the learned Senior Counsel M.Venkatachalapathi would rely on a ratio decidendi in (2002)4 SCC 627 (Kanniammal Vs. Chellaram). The facts of the above said ratio is that: The suit building bearing Door NO.21, 7th Avenue, Ashok Nagar, Madaras 83, belongs to the appellant-landlady. In support of this contention, the learned Senior Counsel M.Venkatachalapathi would rely on a ratio decidendi in (2002)4 SCC 627 (Kanniammal Vs. Chellaram). The facts of the above said ratio is that: The suit building bearing Door NO.21, 7th Avenue, Ashok Nagar, Madaras 83, belongs to the appellant-landlady. A portion of the building is occupied by the appellant along with her three sons for the residence of the family and another portion of the same building is held by the respondent as tenant for non-residential purpose on a monthly rent of Rs.400. The appellant initiated proceedings for eviction of the tenant under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, by alleging that her third son Venkatesh required the premises in occupation of the tenant for commencing his own business of car air conditioning. The Rent Controller directed the respondent tenant to be evicted. The order of the Rent Controller was upheld in appeal. But the same has been set aside by the High Court in the revision preferred by the tenant. The review application filed by the landlady was also rejected by the High Court. Hence, the aggrieved landlady preferred an appeal by special leave. The reasoning for the High Court to set aside the findings of the Court below in the revision was that the landlady was occupying a portion of the same building in which the tenancy premises are situated and that she could have sought for eviction of the tenant only under Section 10(3)(c) of the Act, but since the landlady filed the petition seeking eviction under Section 10(3)(a)(iii) of the Act, it was not maintainable. 9. The learned senior counsel M.Venkatachalapathi appearing for the revision petitioner relying on para 11 of the petition filed in RCOP.No.1144 of 2004 by the landlord, would contend that both at the petition premises as well as at No.71, Dr.Sathasivam Road, T-Nagar, Chennai-17, the first floors are being used for residential purpose and in the ground floor the petitioner along with her son is carrying on business and hence, the petition filed under Section 10(3)(a)(iii) of the Act is not maintainable and that the petitioner ought to have filed the petition under Section 10(3)(c) of the Act. 10. 10. Section 10(3)(a) of the Act runs as follows:- "10.(3)(a) A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building_ (i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned; (ii)..................... (iii)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; (b).................... (c) A landlord who is occupying only a part of a building, whether residential or nonresidential, may, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be. 11. Relying on the provision under Section 10(3)(a)(iii) of the Act, the learned Senior Counsel for the revision petitioner would contend that since admittedly the petitioner/landlord is in the ground floor and the petitioner along with her son is carrying on business at Door NO.17/1, Dr.Sathasivam Road, T-Nagar, Chenna-17, the petition filed for eviction under Section 10(3)(a)(iii) of the Act is not maintainable and that the petitioner ought to have filed the petition under Section 10(3)(c) of the Act. This contention of the learned senior counsel for the revision petitioner cannot be sustainable because at para 11 to the petition in RCOP.No.1144 of 2004, the petitioner has only extracted what has been stated in the reply notice sent by the respondents and this will not amount to any admission. This contention of the learned senior counsel for the revision petitioner cannot be sustainable because at para 11 to the petition in RCOP.No.1144 of 2004, the petitioner has only extracted what has been stated in the reply notice sent by the respondents and this will not amount to any admission. It is the definite case of the landlord that her husband Mr.Hiralal is carrying on pawn broker business in the name and style of AMBIKA BANKERS and LAKSHMI NARAYANAN BANKERS in a portion at No.4/3, Dr.Sadasivam Raod, T-Nagar, Chennai-17 and is also running a flour mill in a portion at No.18, Dr.Sadasivam Road, T-Nagar, Chennai-17, for the purpose of his business as pawn broker and he is having a godown at No.21, Dr.Sadasivam Road, T-Nagar, Chennai-17, and that all the above said three premises are rented portions. The definite case of the petition is that respondents 1 & 2 are in occupation of the ground floor of the petition scheduled premises at Door NO.2, Dr.Sadasivam Road, T-Nagar, Chennai-17, in which in the ground floor the first respondent is running a hotel let out for tea shop and the 2nd respondent is conducting a provisions store business. The relevant observation in the above said ratio in (2002)4 SCC 627 (Kanniammal Vs. Chellaram) related to the present facts of the case at para 6 runs as follows:- "Section 10(3)(c) came up for the consideration of this Court in Shri Balaganesan Metals Vs. M.N.Shanmugham Chetty (1987)2 SCC 707 . The provision was dealt with in depth, analysed and made clear. This Court held that clause (c) makes provision enabling a landlord to seek the eviction of any tenant occupying the whole or any portion of the remaining part of the building for residential or non-residential purposes for satisfying the additional need of the landlord irrespective of whether the need is for residential or business purpose. The phraseology employed by the legislature in framing Section 10(3)(c) and the use of non obstante clause therein make it clear that Section 10(3)(c) overrides the provisions of Sections 10(3)(a)(i) and (iii). The latter provisions i.e. Sections 10(3)(a)(i) and (iii) have two in-built restrictions viz. the landlord seeking eviction of a tenant thereunder should not be occupying a building of his own, and secondly, the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord. The latter provisions i.e. Sections 10(3)(a)(i) and (iii) have two in-built restrictions viz. the landlord seeking eviction of a tenant thereunder should not be occupying a building of his own, and secondly, the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord. The use of the words "requires additional accommodation", as qualifying "for residential purposes or for purposes of business which he is carrying on" indicates that under Section 10(3)(c) the requirement for additional accommodation must be for the same purpose for which the part of the building in occupation of the landlord is being used. If a landlord is occupying only a part of a residential building he may seek ejectment of the tenant for his requirement of additional accommodation for residential purpose though the tenancy premises are being used by tenant for non-residential purpose. Similarly, a landlord who s occupying only a part of a building for non-residential purpose may have the tenant evicted if he requires additional accommodation for non-residential purpose, it being immaterial that the tenant is occupying a part of the premises for residential purpose. Since the requirement of additional accommodation by the landlord is with reference to the manner of his user of that part of the building which is in his occupation, it is the nature of that requirement that should prevail over the manner of user of the tenant of the portion leased out to him. In other words, the need for additional accommodation is for extending the user of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used. It is not the requirement of Section 10(3)(c) that the nature of the requirement of the landlord and the nature of the user of the leased portion by the tenant should coalesce. That being the position of law, Section 10(3)(c) would not cover the present case where the landlady is occupying the not-leased-out portion of the building for residential purpose and the requirement for additional accommodation in another part of the building is for a non-residential purpose. That being the position of law, Section 10(3)(c) would not cover the present case where the landlady is occupying the not-leased-out portion of the building for residential purpose and the requirement for additional accommodation in another part of the building is for a non-residential purpose. The appellant landlady rightly did not seek eviction of the tenant under Section 10(3)(c) and the High Court is not right in forming an opinion that the landlady could have maintained the application for eviction only under Section 10(3)(c) of the Act." But in the case on hand the landlady has claimed the non-residential suit building, in occupation of the tenant, for the purpose of her bushand (P.W.2) to run his business. Under such circumstances, the petition filed under Section 10(3)(a)(iii) of the Act cannot be said to be illegal. 12. The other limb of argument advanced by the learned Senior Counsel for the revision petitioner M.Venkatachalapathi is that as per Rule 11(3) of the Tamil Nadu Building (Lease and Rent Control) Rules, 1974, (herein after referred to as the Rules), every application shall be signed by the applicant and his counsel, if any, and be presented to the Controller or an officer authorised by him, as the case may be, by the applicant himself personally or by his recognized agent or by his counsel at any time during office hours on a working day and further relied on 2006(3) LW 713 (Chellammal Vs. Krishnaveni Ammal). In the said ratio P.W.1 is the power of attorney holder of the petitioner-lanadlady has deposed before the Rent Controller on behalf of the landlady and that power of attorney holder can depose in the place of principal in respect of the acts done by him only in exercise of powers granted by the instrument and the power of attorney cannot depose for principal in respect of matters of which only the principal can have personal knowledge. The learned Senior counsel would further contend that in the case on hand the power of attorney holder for the petitioner was examined as P.W.1 but the petitioner was not examined as a witness and hence, the revision petitioner cannot be evicted as per Rule 11(3) of the Rules. The learned Senior counsel would further contend that in the case on hand the power of attorney holder for the petitioner was examined as P.W.1 but the petitioner was not examined as a witness and hence, the revision petitioner cannot be evicted as per Rule 11(3) of the Rules. This contention of the learned Senior Counsel for the revision petitioner cannot also hold any water because the petitioner through her power of attorney holder had filed the petition under Section 10(3)(a)(iii) of the Act on the ground that she requires the petition schedule building from the respondents for the purpose of her husband to conduct business. The petitioners husband was examined as P.W.2 before the learned Rent Controller. Under such circumstances, the facts in 2006(3) LW 713 will not applicable to the present facts of the case. 13. Per contra, the learned Senior Counsel Mr.AR.L.Sundaresan appearing for the respondents would contend that neither before the Rent Controller nor before the Rent Control appellate authority the present revision petitioner has raised the plea that the petition is not maintainable under Section 10(3)(a)(iii) but ought to have been filed under Section 10(3)(c) of the Act and that there is absolutely no evidence on record to show that the landlady is in occupation of the building for non-resedientail purpose and that Door No.4, 8, and 21 are of rented premises in which the petitioners husband is running his business, which is seen from Ex.P.12 to Ex.P.15 and that the petitioner has filed the petition for additional occupation for running the business of her husband is maintainable. In support of this contention, the learned Senior Counsel would rely on 1986(1) MLJ 48 M/s.Indian Plywood Manufacturing Company Vs. Balaramiah Chetty), wherein the relevant observation for the present case runs as follows:- "Mr.M.Srinivasan, learned counsel appearing on behalf of the landlords has drawn my attention to a decision of this Court in Annamalai and Company, by its Partner Vs. In support of this contention, the learned Senior Counsel would rely on 1986(1) MLJ 48 M/s.Indian Plywood Manufacturing Company Vs. Balaramiah Chetty), wherein the relevant observation for the present case runs as follows:- "Mr.M.Srinivasan, learned counsel appearing on behalf of the landlords has drawn my attention to a decision of this Court in Annamalai and Company, by its Partner Vs. Sital Achi, (1975)1 MLJ 337 : 88 LW 806, in which this Court has taken the view that though the landlord may be in occupation of a non-residential building for purpose of his business, he could apply for eviction of a tenant in respect of another non-residential building for the purpose of a business which any member of his family is carrying on provided the person for whose benefit the non-residential building was required by the landlord is not already in occupation of a non-residential building of his own." For the same proposition of law the learned senior counsel for the respondents would also rely on 2004(3) CTC 256 (Kotti, Kotti Stores, 64, Kilpauk Gardern Colony, Chennai10 Vs. A.M.Rangabhashyam). The relevant observation in the above said dictum at para 9 runs as follows:- "The tenancy is not in dispute. The building was let out for non-residential purpose. Admittedly, there is a residential portion, where the petitioner and his son are residing. In view of the fact, that the building, which is in the occupation of the tenant is a nonresidential portion, an attempt is made to say, that the petition under Section 10(3)(a)(iii) of the Act, is not at all maintainable. If at all, the landlord ought to have filed a petition under Section 10(3)(c) of the Act. The landlord is not seeking the premises for himself, or for the occupation of his son, for residential purpose, whereas he claims for non residential purpose. Therefore, though the building which is in the occupation of the tenant is portion of the larger building, the requirement is for different purpose. If the landlord had claimed the demised building, for residential purpose, then only Section 10 (3)(c) of the Act, will come into operation. In this case, the requirement is for the purpose of non-residential viz., to establish a business. If the landlord had claimed the demised building, for residential purpose, then only Section 10 (3)(c) of the Act, will come into operation. In this case, the requirement is for the purpose of non-residential viz., to establish a business. In this view of the mater, the petition filed under Section 10(3)(a)(iii) of the Act, is perfectly valid, whether the ground is available or not, it is the matter to be decided." Another ratio decidendi for the same point relied on by the learned Senior Counsel for the respondent is 1998(III) CTC 108 (V.Radhakrishnan Vs. S.N.Loganatha Mudaliar), wherein the relevant observation runs as follows:- "The short question that requires our consideration is with regard to the scope and interpretation of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. That section reads thus:- 10.(3)(a) A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building_ (iii)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;" Before examining the scope and interpretation of section, we would like to advert to the findings of fact as recorded by the appellate authority and upheld by the High Court. It has been found as a fact that the landlord had filed the eviction petition on the ground that the premises in question were bona fine required by him for setting up the business of his son. It has also been found that the son of the landlord was earlier doing his business in a shop belonging to his uncle (brother of the landlord) on payment of a monthly rent of Rs.300. It has further been found, as a fact, that the son of the landlord had to leave that shop and he started to do business alongwith his father in a nonresidential premises owned by the father. The court below have also found that the son did not occupy or own non-residential building of his own. ........................... It has further been found, as a fact, that the son of the landlord had to leave that shop and he started to do business alongwith his father in a nonresidential premises owned by the father. The court below have also found that the son did not occupy or own non-residential building of his own. ........................... Mr.Bhat, learned counsel appearing for the respondent, on the other hand, submitted that the bona fide requirement, as contemplated by sub-clause(iii) has to be read so as to mean that the person for whose benefit the premises are sought for, should not be occupying or owning or occupying a building of his own. Learned counsel in support of his submission relied upon the judgments of the Madras High court in A.S.Kannan Vs. S.C.M.Zackeriya 1987 (100) LW 213 (Mad) and Indian Plywood Manufacturing Co., Vs. Balaramiah Chetty, 99 LW.49 (Mad). Reliance is also placed by him on Annamalai and Co., Vs. Sital Achi, 1975(1) MLJ 337 wherein, while interpreting Section 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, as amended in 1973, the learned Single Judge held: "Thus here also in the case of eviction of a tenant from a non-residential building the condition to be satisfied is that the person for whose business the building is required shall not be in occupation of a non-residential building of his own. In other words, the landlord though he may be in occupation of a non-residential building for the purpose of his business, could apply for eviction of tenant in respect of another non-residential building if required for the purpose of a business which any member of his family is carrying on provided the person for whose benefit the non-residential building was required by the landlord is not already in occupation of non-residential building of his own. Any other construction in my opinion would nullify the amendment of the section by introduction of the words any other member of his family" In A.S.Kannan case, 100 LW 213 (Mad) it has been laid down that when a premises is sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the premises are required who should not be occupying the premises of his or her own and the fact that the landlord occupies premises of his own, cannot disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own." The above dictum squarely applies to the present facts of the case. In the case on hand also the petitioner/landlord had asked for the petition schedule building for running the business of her family member viz. her husband, who is running his business in a rented building as seen from Ex.P.12 to Ex.P.15. 14. To meet the argument of the learned senior counsel for the revision petitioner, the learned senior counsel for the respondent would contend that Rule 11(3) of the Rules only says that every application shall be signed by the claimant and his counsel and then to be presented before the Rent Controller and that in this case also on behalf of the petitioner here power of attorney holder has signed in the petition and the power of attorney produced and marked as Ex.P.1 and Ex.P.2, were not questioned by the respondent/tenant before the Rent Controller and further would say that the power of attorney cannot depose the case of the complainant in which he has no knowledge. But in this case the power of attorney on behalf of the petitioner was examined as P.W.1 and that the petition was filed only for getting additional accommodation for the petitioners husband, who was examined as P.W.2. Under such circumstances, it cannot be said that under Rule 11(3) of the Rules, the petition is vitiated. 15. So viewed from any angle, I do not find any reason to set aside the judgment passed in RCA.No.1228 of 2005 on the file of the VII Judge, Small Causes Court, Chennai (Rent Control Appellate Authority), which has affirmed the findings in RCOP.No.1144 of 2004 on the file of the X Judge, Small Causes Court, Chennai. 16. 15. So viewed from any angle, I do not find any reason to set aside the judgment passed in RCA.No.1228 of 2005 on the file of the VII Judge, Small Causes Court, Chennai (Rent Control Appellate Authority), which has affirmed the findings in RCOP.No.1144 of 2004 on the file of the X Judge, Small Causes Court, Chennai. 16. In fine, the Civil Revision Petition is dismissed, confirming the findings of the learned Rent Control Appellate Authority in RCA.No.1228 of 2005 on the file of the VII Judge, Small Causes Court, Chennai. Connected Miscellaneous petitions are closed. No costs. Time for vacating the premises is one month from this date. At this juncture the learned counsel for the revision petitioner represents that 6 months time may be given to the respondent to vacate the premises. The learned counsel for the respondent has no objection for giving four months time. Under such circumstances, four months time is given for the revision petitioner to vacate and hand over the premises. Undertaking affidavit to be filed.