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2008 DIGILAW 4695 (MAD)

K. P. Abubucker v. G. Balasubramanian

2008-12-16

S.PALANIVELU

body2008
JUDGMENT :- (Civil Revision Petition filed under Section 25 of the Tamil Nadu Building (Lease and Rent Control Act), 1960 against the judgment and decree dated 18.09.2003 and made in R.C.A.No.69 of 1998 on the file of the Principal Sub-Court, Madurai, confirming the judgment and decree dated 09.09.1998 and made in R.C.O.P.No.334 of 1993 on the file of (Principal District Munsif) Rent Controller, Madurai.) The petitioner is tenant under the respondent in the demised premises. The respondent filed R.C.O.P.No.334 of 1993 on the file of the Principal District Munsif cum Principal District Rent Controller, Madurai Town for eviction of the tenant under two grounds of wilful default and his requirement for own occupation. The learned Rent Controller allowed the application passing an order of eviction on the ground of personal occupation. He rejected the claim of the landlord as regards wilful default. Both of them preferred appeals before the Rent Control Appellate Authority (Principal Sub-judge, Madurai) in R.C.A.No.69 of 1998 and R.C.A.No.4 of 2000. The learned Rent Control Appellate Authority dismissed both the appeals confirming the orders of the Rent Controller. 2. Aggrieved by the order of the Court below, the tenant has preferred this civil revision petition before this Court, while the landlord has not carried the order of dismissal before this Court. The following are the allegations succinctly found in the petition:- 2.1. The schedule building is a non-residential one which originally belonged to the father of the respondent and from whom the petitioner herein took the property on lease agreeing to pay a monthly rent of Rs.500/- depositing a sum of Rs.7,000/- as advance. The respondent filed R.C.O.P.No.518 of 1989 under Section 8(5) of the Tamil Nadu Lease and Rent Control Act (in short “the Act”) for deposit of rent for every month. It is stated that the respondent herein is running a printing press near Madurai Corporation building. The scheduled premises is required for him to run the said business and hence, the tenant has to be evicted. 3. In the counter filed by the tenant / petitioner, the following allegations are found:- 3.1. There had been no wilful default on the part of this tenant. It is incorrect to state that the landlord has been running a printing press in a rented building. He has got many buildings in Madurai City. 3. In the counter filed by the tenant / petitioner, the following allegations are found:- 3.1. There had been no wilful default on the part of this tenant. It is incorrect to state that the landlord has been running a printing press in a rented building. He has got many buildings in Madurai City. The scheduled building is not suitable to run the said business, for which he has not obtained any licence, that original owner died leaving his wife and three sons and two daughters and hence, the petition filed by this petitioner alone is not sustainable. 4. Even though it is denied in the counter that the respondent / landlord was running a printing press, the materials available on record show that he is running a printing press in a rented building. The respondent / landlord in his evidence stated that he was paying a monthly rent of Rs.800/- for the building in which he is running printing press. He has also paid a sum of Rs.6,000/- as advance and that the press is in a rented building alone. The Rent Controller after scrutinizing Exs.A.4 and 7 found that the petitioner has been running a printing press in a rented building at Sellur. Ex.A.4 is the attendance register and Ex.A.7, is the rental receipt. P.W.2, the Madurai Corporation official has deposed that the respondent / landlord has been running printing press in No.5, 20A, Azhagar Kovil Road, Madurai, that he has obtained a licence for the years 1994-1995 and 1995-1996. The above said documents and other pieces of evidence would go a long way to show that the respondent / landlord has been running a printing press in a rented premises. 4.1. As far as the availability of other non-residential of buildings belonging to the respondent is concerned, it is his definite version that they are small buildings and the printing press could not be accommodated in the said buildings. This Court does not find any mala fide intention in saying so. It is in the evidence that the scheduled property measures 20 x 20 feet and in another portion of the building, a petal nut shop is being run, which is not suitable for accommodating the printing press. It is the further evidence of the respondent / landlord that he is residing in the upstairs of the scheduled building. 5. It is in the evidence that the scheduled property measures 20 x 20 feet and in another portion of the building, a petal nut shop is being run, which is not suitable for accommodating the printing press. It is the further evidence of the respondent / landlord that he is residing in the upstairs of the scheduled building. 5. This Court is able to find out that other non-residential buildings are not suitable for the respondent to run the printing press. 6. In this juncture, the learned counsel for the petitioner Mr. S.S. Sundar would draw attention of this Court to a decision reported in ( 2004 (1) CTC 94 ), Bat India Limited Vs. M.R. Manickam, in which this Court observed that when the landlord does not require for his own occupation, it must be shown that it is not bona fide one. The learned Judges referred to a catena of decisions of this Court in this regard and concluded that if the landlord is carrying out the business in his own premises, he cannot seek the eviction of the tenant on the ground that the said building is needed for own occupation. 7. In yet another decision of this Court reported in ( 2004 (3) CTC 256 ), Kotti vs. A.M. Rangabhashyam, a passing reference is made while deciding the requirement of landlord for own occupation that when no pleadings are found in the petition whether the petitioner is owning or occupying any residential buildings in the city, however non-pleading of such aspect in the petition will not disentitle the landlord from projecting the claim of requirement for own occupation. 8. In this case, the respondent / landlord has specifically mentioned that he is running a printing press in a rented building and he has rented out two small shops in a scheduled mentioned buildings and they are not suitable for running a printing press and the shop which is in Chitrai Street is suitable place for the respondent herein to run the business and the present business place is more than 5 kms away from the city. These are the adequate pleadings to set out a ground of requirement for personal occupation. 9. These are the adequate pleadings to set out a ground of requirement for personal occupation. 9. The learned counsel for the petitioner also referred to a decision of this Court reported in ( 2005 (4) MLJ 127 ), R. Sudhandhira Devi and others V. K. Navanithakrishna in which this Court has held that it is incumbent upon the landlord to plead the minimum requirements, to satisfy ingredients available under Section 10(3) a(iii) of the Act, that if the building is required for the member of a family, he must be carrying on business on the date of filing of the application, that he or the member of the family should not own any non-residential building for the purpose of carrying on the said business and that the requirement must be bona fide not aiming at the tenant’s eviction. 10. Repelling the contentions of the learned counsel for the petitioner, the learned counsel for the respondent would contend that the tenant / petitioner has no right to command the landlord to choose a particular building, even though he owns many buildings for his personal occupation and it is the choice of the landlord to choose any of the suitable buildings for his purpose. For this proposition of law, he placed reliance upon a decision of the Supreme Court in (2000) 1 SCC 679 ), Raga Vendra Kumar Vs. Firm Prem Machinery & Co. 11. Following the afore-said principle, it is to be answered in this revision petition that the requirement of the building occupied by the petitioner / tenant, if found suitable by the respondent / landlord, provided his requirement is bona fide one, then there could be no embargo for passing the order of eviction. 12. In a decision reported in ( 1984 (1) MLJ 22 ), Krishna Reddy and others Vs S. Vasudevayya, after considering the ingredients of Section 10(3)(a) (iii) of the Act, this Court has held thus:- “To attract Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, certain ingredients must be satisfied namely (i) The building should be nonresidential in character (ii) the landlord should be carrying on business, the meaning to be attached to the expression “carrying on business” to be gathered from judicial pronouncements of this Court in this behalf. (iii) He should not be occupying any other non-residential building of his own in the city concerned for the purpose of his business and; (iv) the landlord must satisfy that his claim is bona fide.” Further, it is also held that it is true that the concurrent findings based on evidence shall not be interfered with by this Court, exercising jurisdiction under Section 25 of the Act. 13. In another decision of this Court reported in ( 1998 (2) MLJ 261 ), Jayaram Metal Works Vs. G. Jaganathan, this Court held that in order to invoke Section 10(3)(a)(iii), it is not necessary that the landlord has to carry on business in a rented premises and any contention on the reverse cannot be sustained. 14. This Court in a decision reported in ( 1998 (3) MLJ 72 ), Dr. V.K. Jayalakshmi Vs. Mrs. M.S. Meenakshi and another has observed that what all the Section 10(3)(i) requires is the landlord not being in occupation of a residential house of her own, the requirement of the house concerned for residential purpose and that the said requirement being bona fide. 15. The learned Judge of this Court in a decision reported in ( 2007 (2) CTC 797 ), B. Kishore Vs. D. Maragathavalli, has held that it is open to the landlady to choose building she requires for her son and tenant cannot dictate or compel such business to be run in small or insufficient portion. It is in the view of the learned Judge that it is enough for the landlord to make bona fide preparations to commence business and not necessary that the landlord or member of his family for whom premises is sought should be actually carrying on business on the date of filing of eviction petition. It is also held that carrying on business consists several steps and even if one step is proved, it will satisfy the requirement of Section. 16. The evidence on record has candidly shown that the requirement of the respondent / landlord is a bona fide one. The concurrent findings of the for a below that the landlord’s / respondent’s requirement is a bona fide one cannot be shaken by this Court in the presence of the materials and convincing evidence available on record. 17. 16. The evidence on record has candidly shown that the requirement of the respondent / landlord is a bona fide one. The concurrent findings of the for a below that the landlord’s / respondent’s requirement is a bona fide one cannot be shaken by this Court in the presence of the materials and convincing evidence available on record. 17. Viewed from the angle of the authorities on this subject illuminatingly pronounced by the Apex Court as well as this Court, the respondent / landlord has to be granted an order for eviction in his favour. The resistance of the petitioner on the ground of personal occupation does not stand in view of the well settled principles of law as formulated above. He has no right to dictate terms to his landlord to choose a particular building to run his business. It has been established that the respondent / landlord has been running his business in a rented building. 18. In such view of this matter, this Court does not find any valuable grounds in this civil revision petition so as to interfere with the concurrent findings of the authorities below. They deserve to be confirmed and accordingly confirmed. The civil revision petition does not merit consideration, which is liable to be dismissed. 19. In fine, this civil revision petition is dismissed with costs. Time for vacating and handing over the scheduled premises to the respondent is two months. Consequently, connected M.P. is closed. No costs.