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2009 DIGILAW 5544 (MAD)

Sahul Hameed v. Ganthimathi

2009-12-11

R.S.RAMANATHAN

body2009
Judgment :- The revision petitioner is the tenant. The petition in R.C.O.P. No. 16 of 2003 was filed by the respondent landlady herein, for eviction on the ground of owners occupation. The case of the landlady is that she is the absolute owner of non-residential building mentioned in the petition and the respondent is a tenant of the premises, paying a monthly rent of Rs.3,000/- and the respondent is doing business in the name of Raja Nainar Agencies and Raja Nainar Stores. 2. The Landlady/respondent is running a business in Paints and Hardwares under the name of Karpaga Vinayakar Agencies in a rented premises, bearing T.S.No.851, North Main Street, Pudukkottai. As the respondent landlady wanted to do business in her own premises, she had issued notice, dated 15. 2003, to the Tenant/revision petitioner to vacate the building and even after the receipt of the notice, the revision petitioner did not vacate the premises and had issued a reply notice, dated 16. 2003, denying that the building is required bonafidely by the landlady. Hence, the petition for eviction was filed by the respondent landlady. 3. The revision petitioner had filed a counter disputing the fact that the landlady is doing business in the rented premises under the name of Karpaga Vinayagar Agencies and the landlady only wanted to vacate the tenant for the purpose of getting higher rent. He further contended that the claim of the landlady is not bona fide and the landlady for the purpose of vacating the tenant, had created false and fabricated documents and therefore, there is no bona fide requirement for the respondent and hence, prayed that the petition has to be dismissed. 4. The learned Rent Controller, Pudukkottai, appreciated the evidence and found that the requirement of the landlady is bona fide and the landlady requires the building for the purpose of doing business and presently, she is doing business in the rented premises and allowed the petition and ordered eviction. That was challenged by the revision petitioner in R.C.A. No. 6 of 2005. The Rent Control Appellate Authority also confirmed the finding of the Rent Controller, Pudukkottai, and dismissed the appeal. Aggrieved by the same, this revision is filed. .5. That was challenged by the revision petitioner in R.C.A. No. 6 of 2005. The Rent Control Appellate Authority also confirmed the finding of the Rent Controller, Pudukkottai, and dismissed the appeal. Aggrieved by the same, this revision is filed. .5. The learned counsel for the revision petitioner submitted that Rent Control Appellate Authority without applying his mind and without considering as to whether the requirement of the landlady/owner is bona fide or not confirmed the finding of the lower Court and hence, it is a non speaking order and on that ground, this revision has to be allowed and the case has to be remanded back to the Appellate Authority for deciding afresh and further contended that there is no bona fide requirement of the landlady. 6. Mr.K.Balasundaram, learned counsel for the revision petitioner submitted that the landlady is not doing business in the rented premises and for the purpose of showing that the landlady is doing some business in the rented premises, Exs.A.4 to A.8 were created and evidence of PW2 would also prove that Ex.A.5 could not be a genuine one and the same is created for the purpose of this case. 7. The learned counsel further submitted that according to the evidence of PW2, PW2 is meeting the respondents husband everyday. In that case, there is no need for PW2 to send a letter to the respondent landlady asking her to pay the rent for July month and it would prove that the letter has been created for the purpose of showing that the landlady is doing business in another place. 8. Thelearned counsel therefore submitted that without establishing that the landlady is doing business in the rented premises, the landlady is not entitled to eviction. The learned counsel further submitted that there is no other material to arrive at a conclusion that the respondent landlady is carrying on business in the rented premises which is the basic requirement to order eviction under Section 10 (3)(a)(iii) of the Tamil Nadu buildings (Lease and Rent Control Act) 1960. 9. The learned counsel further submitted that there is no other material to arrive at a conclusion that the respondent landlady is carrying on business in the rented premises which is the basic requirement to order eviction under Section 10 (3)(a)(iii) of the Tamil Nadu buildings (Lease and Rent Control Act) 1960. 9. The learned counsel has also relied upon the decision of this Court in A.Sankaran and another v. S.K.Balasundaram and another reported in 1994 (2) Law weekly 152 to that effect that mere desire to use or occupy the premises is not enough and the landlord must show bona fide need for own use and occupation and the need should be genuine. In support of his contention, the learned counsel for the revision petitioner relying on the Judgment of the Honble Supreme Court in Hameedia Hardware Stores v. B.Mohan Lal Sowcar reported in (1988)2 SCC 513 , submitted that without proving bona fide, the landlord is not entitled to get an order of eviction. Further, the learned counsel submitted that in the evidence of PW1, she had stated that she wanted to do business in pharmaceutical line for the purpose of her sons and later, she had stated that she filed the application for the purpose of doing business in paints and hardwares. Therefore, the learned counsel submitted that the landlady is not sure about the requirement for which the premises is required and hence, there is no bona fide on the part of the landlady. 10. Mr.R.Jegadeswaran, learned counsel for the respondent/landlady submitted that the landlady has proved that she is doing business in the rented premises by marking the Sales Tax Registration Certificate issued by the State Government and Central Government which are marked as Exs.A.6,A8,A.10 and A.12 to 24 the ledger accounts and purchase bills to prove that the landlady is doing business in the rented premises. .11. Mr.R.Jegadeswaran, learned counsel for the respondent relied on the Judgments of this Court reported in 1999 (2) MLJ page 28(S.V.M. Nagavairava Sundaram), 2002 MLJ Page-50(S.C) (Raghavendra Kumar Vs. firm PRem Machinery & Company), 2000 (I) CTC 25 (S.Selvarajan Vs. A.K.Sakthivel and another), 2007(2) CTC 797 (B.Kishore Vs. .11. Mr.R.Jegadeswaran, learned counsel for the respondent relied on the Judgments of this Court reported in 1999 (2) MLJ page 28(S.V.M. Nagavairava Sundaram), 2002 MLJ Page-50(S.C) (Raghavendra Kumar Vs. firm PRem Machinery & Company), 2000 (I) CTC 25 (S.Selvarajan Vs. A.K.Sakthivel and another), 2007(2) CTC 797 (B.Kishore Vs. D.Maragathavalli), and submitted that the landlady has proved that she is doing business in the rented premises and wanted her premises to do business which is in occupation of the tenant and hence, the requirement of the landlady is bona fide and the lower Court has rightly passed an order of eviction. 12. I have given my anxious consideration to the submissions made by the learned counsel on either side. The first contention of the revision petitioner is that the learned Appellate Court without considering the bona fide requirement of the landlady, confirmed the finding of the Rent Controller, Pudukkottai and therefore, the order of eviction is liable to be set aside and the case is to be remanded to the lower Court for fresh disposal. 13. It is seen from the order of the Rent Control Appellate authority that after stating the contention by both parties, he framed the issues and heard the arguments advanced by both the counsels and in paragraph 8 of the order, the Appellate Court discussed the merits of the case and interpreted the various judgments produced by the landlady and held that for claiming possession of building under Section 10(3)(a)(iii) of the Act, the petition must prove bona fide and there is no necessity for the landlady to do business in a rented premises or in any other premises. It is enough if he has made some preparations for doing a business and on those grounds, eviction could be ordered. Further, in Paragraph 12 of the order, it is stated that from the evidence of PW1 and PW2 and documents filed by the landlady, it is proved that the landlady is doing business in the name of Karpaga Vinayagar Agencies in a rented premises and the tenant has not filed any proof that the landlady is having any other building in Pudukkottai and hence Rent Controller has rightly held that the requirement is bona fide. Therefore, on a perusal of the order of the Rent Control Appellate Authority, it cannot be stated that there is no discussion by the Rent Control Appellate Authority and he has not applied his mind. Therefore, the first point is answered against the revision petitioner. 14. The next point advanced by the learned counsel for the petitioner is that there is no proof that the landlady is doing business in the rented premises. According to the learned counsel for the petitioner, Ex.A5 is created for the purpose of this case and it is admitted by PW2 who is the agent of the owner of that premises, in which, the landlady is doing business that he used to meet the husband of the landlady everyday in his shop and therefore, it was argued by the learned counsel for the petitioner that there is no need for PW2 to send a letter to the landlady asking her to pay a rent for the month of July. He therefore submitted that Ex.A.5 has been created for the purpose of this case. According to me, one cannot come to a conclusion that by sending a letter to the landlady reminding her to pay rent without fail, the letter must have been created for the purpose of proving before the Court that landlady is doing business in the rented premises. Though PW2 used to meet the husband of the landlady everyday and it cannot be presumed that PW2 would not have sent such a letter to the husband of the landlady. Further, the landlady has produced Exs.A.6 to A8 and also marked purchased bills and ledger accounts to prove that she is doing business in the rented premises. But, no evidence was produced by the tenant to prove that landlady is not doing business in the rented premises. Once it is proved that the landlady is doing business in the rented premises, the requirement of the landlady for doing business in her own premises cannot be termed as mala fide and it is only bona fide requirement,that cannot be questioned by the tenant. 15. As a matter fact, in the reported judgment of the Supreme Court (Hameedia Hardware Stores Vs. B. Mohan Lal Sowcar, 1988 (2) SCC page 513), the Supreme Court has dismissed the bona fide requirement claiming in para 13 at page No.525 it has been held as follows: "13. 15. As a matter fact, in the reported judgment of the Supreme Court (Hameedia Hardware Stores Vs. B. Mohan Lal Sowcar, 1988 (2) SCC page 513), the Supreme Court has dismissed the bona fide requirement claiming in para 13 at page No.525 it has been held as follows: "13. We are of the view that by merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3) (a)(iii) appears get a tenant evicted. He must show in view of clause (e) of Section 10(3) that his claim is bona fide. The word "claim" means "a demand for something as due" or "to seek or ask for on the ground of right" etc. In the context of Rent Control law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlords requirement or need. The word "claim" in clause (e) of Section 10(3) of the Act should, therefore, be construed as "the requirement" of the landlord or his deservedness. "Deserve" means "to have a rightful claim" or "a just claim". Since clause (e) of Section 10(3) of the Act is also applicable to a petition filed under sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non-residential building of the category mentioned in Section 10(3)(a)(iii) and to achieve his aim fakes to start moneylending business (for which indeed no specified separate portion in a building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid sub-clause (iii) are fulfilled. If the requirement of "claim" being "bona fide" as contained in Section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the nonresidential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secure. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is the object of enacting clause (e) of Section 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. The need of the landlord should be genuine. That is the object of enacting clause (e) of Section 10(3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family as held by this Court in Phiroze Bamanji Desai v. Chandrakant M. Patel13 and Mattulal v. Radhe Lal The learned Judge who decided the case out of which this appeal arises was, therefore, in error in holding that the landlord need not prove that his requirement was bona fide but that his claim was bona fide as provided in clause (e) of Section 10(3) of the Act. The learned Judge has made a distinction between "requirement" and "claim" in the present case without there being a difference. 16. According to me, the requirement of the landlady has been proved to be bona fide in this case and the land lady satisfied the condition laid down by the aforesaid judgment. Further, the contention of the revision petitioner is that originally landlady wanted the premises for doing business in pharmaceutical line, but she admitted in her evidence that she filed the application for doing business in hardware and therefore, her requirement is not bona fide. It is seen from the evidence of the landlady that during 2001-2002, she wanted to do business in medical line and she asked her sons for that purpose, but they did not have any interest. Therefore, she had decided to do business in paints and hardwares and she is doing business in the rented place and therefore, she had filed application. Therefore, it is proved by the landlady that she required for bona fide purpose. Even assuming that there is a change of requirement, that would not affect the bona fide of the landlady as held by this Court in Judgment reported in 2001 (1) CTC Page 25, 1999 (2) MLJ Page 28. Further, as held in 2007 (2) page 797, it is enough if landlord makes bona fide preparations to commence business and there is no need for the landlord to carry on business when he required the building for his own occupation. Further, as held in 2007 (2) page 797, it is enough if landlord makes bona fide preparations to commence business and there is no need for the landlord to carry on business when he required the building for his own occupation. In this case, according to me, the landlady has proved that she is doing business in the rented premises and therefore, it cannot be stated that the requirement of the landlady is not bona fide, as held in the judgment of Honble Supreme Court reported in 2002 (II) MLJ 50 (SC): "It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. In the case in hand, the plaintiff landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted." Therefore, the requirement of the landlady could not be faulted and the landlady has proved the bona fide requirement of the place and hence, I do not find any merit in this revision. The tenant is doing business in the premises for the past seven years and reasonable time should be given to vacate and handover vacant possession to the landlady. Hence, the tenant is given six months time to hand over vacant possession to the landlady on condition of filing affidavit and also undertakes to pay a rent regularly till handing over the possession to the landlady. 17. In fine, this revision is dismissed. No costs. Consequently, connected M.P. is also dismissed.