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Madras High Court · body

2010 DIGILAW 1990 (MAD)

D. K. Sethu Madhavan v. M. Thathuvamoorthy

2010-04-27

C.S.KARNAN

body2010
Judgment :- 1. The civil revision petitioner herein is the tenant/respondent in R.C.O.P.No.1002 of 1996, on the file of the Small Causes Court No.XVI, at Chennai and the appellant in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.VIII, Chennai. The revision petitioner has filed this revision in C.R.P.No.271 of 2003 to set aside the decree and Judgment in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.VIII at Chennai, dated 29.11.2002 and confirm the decree and Judgment of the learned VI Judge, Court of Small Causes at Chennai in R.C.O.P.No.1002 of 1996, dated 04.09.1997. 2. The short facts of the case are as follows: The respondent/petitioner/landlord has filed the eviction petition against the revision petitioner/tenant directing him to vacate and handover the vacant possession of the petition property to the petitioner, on the ground of owners occupation to enable his daughter to carry on business related to telephone booth together with STD/ISD and PCO facilities. The landlords daughter is a B.A.Graduate and unemployed. The landlord has applied to the Department of Telecommunication, Madras Telephone North West area through application No.4121, dated 09.02.1996 under registration No.7/KGI-II-STD-PT-19.02.1996 for setting up of the business at the petition premises, namely, Shop No.3 in the Ground floor of the premises No.136, Purasawalkam High Road, Kellys, Madras-600 010. 3. The landlord further submitted that the revision petitioner is the tenant occupying the petition premises on a monthly rent of Rs.750/- excluding the electricity charges. The total extent of petition premises is 10 Feet X 12 Feet and situated on the main road. The tenant had also agreed to vacate and hand over the possession before March, 1996. On the contrary, he has filed O.S.No.4568 of 1996 for injunction as if the landlord is interfering with his possession and enjoyment of the petition premises. Hence, the landlord has filed the eviction petition under Section 10(3)(a)(iii) of the Tamil Nadu Building Lease and Rent Control Act. 4. The revision petitioner/tenant has filed a counter statement and has denied the averments made in the petition filed by the landlord. It was submitted that the averments made by the landlord that the petitioners shop is required for his daughter is not bonafide. 4. The revision petitioner/tenant has filed a counter statement and has denied the averments made in the petition filed by the landlord. It was submitted that the averments made by the landlord that the petitioners shop is required for his daughter is not bonafide. The landlord has not taken any steps to initiate such business and moreover the said STD business is not suitable for ladies since the telephone booth/STD/ISD/PCO are usually kept open for business till late in the night. The reason given by the landlord is merely to evict the tenant and let out the portion for a higher rent. On 29.03.1996, the tenant was forced to file a criminal complaint against the landlord since the landlord attempted to dispossess the tenant of the said premises. Hence, the tenant was forced to file a civil suit. 5. The tenant further submitted that the landlord could not achieve his malafide motive of dispossessing the tenant, by force, from the petition shop. Now, the landlord has filed this petition, belatedly, with a view to evict the tenant. Further, the landlord has refused to receive rent from the month of February, 1996 onwards and therefore the tenant had filed R.C.O.P.No.840 of 1996 for depositing the rent into the Court under Section 8(5) of the Rent Control Act. The tenant is carrying on business in the said premises for over 16 years. The tenant further submitted that the landlord does not require the petition shop as he is profitably employed with Lucas-TVS. The tenant further submitted that the location of the petition-shop is not suitable for the business envisaged by the landlord. Hence, the tenant has prayed for dismissal of the petition. 6. The learned Rent Controller framed issues and recorded the evidence of the petitioners side as well as the evidence of the respondents side. On the side of the petitioner, three documents were marked namely Ex.P1, the receipt, acknowledging the application for public telephone given by the petition; Ex.P2, the quotation given by the Carpenter to setup the telephone booth; Ex.P3, the fixed deposit particulars taken out in the name of the landlords daughters. On the side of the respondent, five documents have been filed namely Ex.R1, the petition copy in I.A.No.6087 and Ex.R2, the counter statement; Ex.R3, the acknowledgement card; Ex.R4-decree of R.C.O.P.No.840 of 1996 and Ex.R5-written statement copy in O.S.No.4568 of 1996. 7. On the side of the respondent, five documents have been filed namely Ex.R1, the petition copy in I.A.No.6087 and Ex.R2, the counter statement; Ex.R3, the acknowledgement card; Ex.R4-decree of R.C.O.P.No.840 of 1996 and Ex.R5-written statement copy in O.S.No.4568 of 1996. 7. After considering the evidence of both sides and after considering the facts and circumstances of the case, the learned Rent Controller has come to the conclusion that even if the tenant vacates the petition premises immediately, the landlords daughter would not be in a position to setup the STD business immediately. Further, the Rent Controller held that the tenant had been an occupant of the petition shop for the past 16 years and had been carrying on his business and was of the opinion that if the tenant is made to vacate the shop the tenant would incur loss. The Rent Controller was of the opinion that if the eviction petition is dismissed, the landlord would not be put into any hardship. As such, the eviction petition was dismissed against the tenant. 8. Aggrieved by the above order of dismissal, the landlord has preferred this appeal. The appeal grounds and citations submitted thereof in support of the appeal are as follows: "(7) Now, the point for consideration is whether, the appeal should be allowed or not? (8) The learned counsel for the appellant/landlord would argue as follows: The petitioner/landlord has satisfied the ingredients contemplated in sec.19(3) & (iii) of the Act. Admittedly, neither his daughter nor he is not occupying any other non-residential building in Chennai, which is their own, for the proposed business. Besides, the petitioner has taken necessary steps for starting the STD Booth in the petition premises. His daughter T.Kavitha, has already applied for a Telephone Booth to the Telephone Department. She has clearly stated that she wanted the STD Booth connection to be given to her in the petition premises. Ex.P1 is the receipt issued by the Telephone Department for having received the application of petitioners daughter. It is a document given by the Public authority. So it is a valid and acceptable evidence. It shows her real intention and bonafide. Ex.P2 is the receipt given by a concern doing the job wood work of pattern works etc. It is observed from it that the petitioner has given an advance of Rs.5,000/- for the proposed work of making wooden partition for the posed telephone booth. So it is a valid and acceptable evidence. It shows her real intention and bonafide. Ex.P2 is the receipt given by a concern doing the job wood work of pattern works etc. It is observed from it that the petitioner has given an advance of Rs.5,000/- for the proposed work of making wooden partition for the posed telephone booth. Ex.P3(s) are fixed deposit receipts for total sum of Rs.50,000/-. So, the petitioner has amply demonstrated his genuine intention to start the proposed booth in the petition premises, by taking all possible steps meant for the business. As the daughter is unemployed, she can very well carry on the proposed business in the petition premises. It is not for the tenant to suggest to the landlord as to whether the petition premises is fit for her proposed business or not. Once, the landlord has satisfactorily complied with the conditions laid down in the Act and taken care and necessary steps for starting the proposed business, his requirement is bonafide. The need is reasonable likely to arise in future. In this connection, the following judgments are cited: (i) Organid Chemicals Ltd., Madras Vs. Venkataraman, 1997-2-LW-517, Law does not say that there should be a current and urgent need. It is enough if it is reasonably likely to arise in the future (ii) S.R.Vairevan Vs. Sundaram, 2001 (4) CTC 710 Tamilnadu Buildings (Lease and Rent Control) Act 1960, Sec.10(3) & (iii) carrying on business that is – landlord or member of his family need not carry on business at the time of filing of petition and it is enough it is reasonably likely to arise in future (9) the learned counsel for the respondent/tenant has argued as follows: (a) The petitioner/landlord has not issued any pre-petition notice to the tenant, expressing his requirement of the petition premises for starting a business. For this, the possible explanation of the landlord is that since the tenant himself has promised to vacate the petition premises by March99, arose no need for the landlord to issue any pre-litigation notice. It is not true. The landlord refused to receive rent for February 96 when tendered. He has also refused to receive the rent sent by money order. That is why the tenant filed RCOP u/s.8(5) of the Act. In fact, the tenant deposited rent for certain periods in the RCOP. It is not true. The landlord refused to receive rent for February 96 when tendered. He has also refused to receive the rent sent by money order. That is why the tenant filed RCOP u/s.8(5) of the Act. In fact, the tenant deposited rent for certain periods in the RCOP. Against this backdrop, the landlord filed RCOP for eviction. (i) Firstly, there was no pre-petition notice. So, the tenant cannot be taken by surprise. (b )With regard to merits of the case the following points are raised for consideration: (ii)Though the petitioner contends that his daughter has applied for STD booth connection to the Telecom Department, except, a receipt, no other tangible document has been filed to show that the petitioner has fulfilled other pre-requisite conditions stipulated by the Telecom Department, in this regard. No document representing the payment of necessary charges has been produced. Ex.P1 is only an acknowledgement of receipt of application for STD booth connection. Ex.P2 is an estimate by a carpenter for interior decoration and Ex.P13(s) are three receipts issued by one Devi Gold House for fixed deposits of total sum of Rs.50,000/-. These second and third documents are only self-serving documents and they have no evidentiary value as such. (iii)Even before the learned Rent Controller rendered judgment, the petitioners daughter T.Kavitha got married to Mr.Vidhaya Sankar. As a married woman, she is living with her husband in his house. Her husband is not dependent on his wife. So, the very case of action ceases to exist as the daughter of the petitioner, for whose requirement the petition premises was sought for, got married and left the house of her father, the landlord. (iv)The petitioner is profitably employed in a private concern. He admitted that he used to be away. So, he could not attend the proposed business. (v)There is no proof that the petitioner purchased any telephone instrument or billing meter for the proposed STD Booth. Besides, the petition premises is not ideal for the STD Booth that too for a lady who cannot run the STD booth especially after 9 P.M. In fact, due to reduced rates after 8 P.M. people throng the booths only after 8 P.M. (vi) In the event of eviction, the tenant will be put to irrepairable loss and great hardship – When examined, PW2, the son-in-law of the petitioner has deposed that he is living with his parents. So there is no need for the petitioner. Married daughter does not depend the income for her fathers property. More despire to start a business is not sufficient for ordering eviction. (c) In support of the contention, the Learned Counsel for the respondent/tenant filed the following judgments: (i) M.Lanakavel Pillai by power agent N.Sellaiyah Pillai vs. Drugs and Chemicals, Kumbakonam by its Managing Director T.Ramani – 1980 – II MLJ – 392. Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960) (as amended by Act XXIII of 1973) sections 10(3)(a)(iii) and 14(1)(b) – Petition by landlord for eviction and recovery of possession of premises "Carrying on business" – Meaning. "We think so "because" carrying on a business" may consist of a service of steps, and even if one step is proved, we do not see why the requirement is not satisfied. But, if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute". (ii)1981 – I MLJ 40 E.Gopalan nair Vs. V.Kalammal Tamil Nadu Buildings (Lease and Rent Control) Act, section 10(3)(a)(iii) – Non-residential building – Petition for eviction by landlady – Allegation of building being required for business of the petitioners husband – Mere intention to start business – Not sufficient for ordering eviction. (iii)P.Rengaswamy Naidu Vs. The Tamil Nadu Handloom Weavers Co-Operative Society Limited, Madurai, through the Marketing Officer. 1982-MLJ 130. The application a person who was carrying on a business as Hotel Proprietor. He was on that date a person who had done business in the past as a hotel proprietor and who was intending to do business in the future as hotel proprietor. Such a person cannot be said to be a person who is carrying on business. To hold otherwise would be to delete from Sec.7(3)(a)(iii) the words "which he is carrying on", a function which the Court is power less to perform. (iv)Bank of Baroda, rep.by its Chairman Vs. Mahendra Dadha and two others 1982 – II-MLJ-85 Sec.10(3)(a)(iii) of the Act deals with the condition for obtaining possession of a nonresidential building. To hold otherwise would be to delete from Sec.7(3)(a)(iii) the words "which he is carrying on", a function which the Court is power less to perform. (iv)Bank of Baroda, rep.by its Chairman Vs. Mahendra Dadha and two others 1982 – II-MLJ-85 Sec.10(3)(a)(iii) of the Act deals with the condition for obtaining possession of a nonresidential building. The conditions are : (1) The building should be non-residential in character (2) The landlord should be carrying on business on the date of application for eviction (3)the landlord should not be occupying any other non-residential building belonging to him in respect of the business; and (4) the landlords claim is bonafide, for his business needs and is not founded on any indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than what the premises, already fetched or with a view to harass the tenant in possession. AIR 1988 SUPREME COURT, 1060. A landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Se.10(3)(a)(iii) of the Act. If the requirement of claim being bonafide as contained in Sec.10 (3)(e) as construed to mean that genuineness of the need of the landlord for the non-residential building is not be considered and the circumstance that the landlord as 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 bonafide, the tenancy of no non-residential building will be secure. (vi) 1990 TIAD – 135 Muniammal & 3 others Vs. R.Sundara Mahalingam. In the absence of any evidence to show that the landlord has taken any action by way of step-in-aid, it may be considered that his petition would not satisfy the requirements u/s/10(3)(a)(iii) of the Act even on the basis of the dicta laid down in 98 LW 666. Having regard to the fact that no step was taken by the landlord on the date when the application was filed for eviction, it is hardly possible to come to the conclusion that the landlord has satisfied the requirements of sec.10(3)(a)(iii). (vii)M/s.Amitkumar Amichand by Partner S.Mohanlal Vs. Jawanthraj and others, 1082 – II – MLJ -353. Having regard to the fact that no step was taken by the landlord on the date when the application was filed for eviction, it is hardly possible to come to the conclusion that the landlord has satisfied the requirements of sec.10(3)(a)(iii). (vii)M/s.Amitkumar Amichand by Partner S.Mohanlal Vs. Jawanthraj and others, 1082 – II – MLJ -353. Allegation that son-in-law of one landlord, desired to set up a clinic – Landlords also desiring to set up independent business in the premises – Landlords therefore requiring additional accommodation – "Additional accommodation" and "carrying on business" – Meaning – Landlords held not entitled to an order of eviction. (viii)Ramesh Vs. A.Balreddy – AIR 1990 SUPREME COURT 1376 – A.P.Buildings (Lease, Rent and Eviction) Control Act (1960) S.10 – Eviction petition – Landlord pleading that premises were required for his married doctor daughter for running a separate Clinic – Daughter assisting her doctor husband in his Clinic – Nothing to suggest that landlords married daughter had to depend on her father in any manner – Evidence fully establishing that landlord was forcing tenant to raise rent from time to time and was making further demand which was not acceded by tenant – Held, requirement of landlord was fanciful wish and could not be accepted as good ground for eviction (10)Thus the arguments of both the learned counsels are concluded. (11)The question that comes up for consideration it so whether the landlord was satisfactorily proved his requirement and bonafide. (12) Sec.10(3)(a)(iii) reads as follows: Sec.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 of (any member of his family) is not occupying for purposes of a business which he or (are member of his family) is carrying on, a non-residential building in the city, town or village concerned which is his own; (13)From the above provision of law, it becomes very clear that the landlord has a legal obligation to fulfil the statutory conditions enshrined in the Act. First of all, he must not occupy any non-residential building of his own for the business being carried on either by himself or by any member of his family. First of all, he must not occupy any non-residential building of his own for the business being carried on either by himself or by any member of his family. Here in this case, concedingly, the landlord or his daughter for whose proposed business, the petition premises is required, does not occupy any other non-residential building of their own for the business. This fact is not in dispute. So, the first condition is deemed to have been satisfied. (14)Generally, if, we are to draw any succour from the enactment, then, we must admit that the provision U/S.10(3)(a)(iii) postulates existence of a business to the landlord or by any member of his family. But, the scope of this provision has justifiably been enlarged to include even one right step towards the proposal of starting a business as "Deemed business" for harvesting relief under this section held in the case. S.P.K.Ramaswamy Pillai Vs. Karmega Thevar 1964 – II – MLJ – 89. Madras Buildings (Lease and Rent Control) Act (18/1960) sec.10(3)(a)(iii) – Scope "carrying on a business" – It is not necessary for the purpose of "carrying on a business" within the meaning of sec.10(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, that the entire activity of a business should exist. Sec.10(3)(a) (iii) of the Act would cover the case where the authorities come to the conclusion that the demand for occupation is bonafide one and that the landlord has already commenced some activity in connection with the starting of the business. There is no reason why a landlord having the capital ready and the intention as well to do business cannot be said to have commenced his business, though the activity relating to it has to await the securing of accommodation. (15)In this case, the petitioners daughter is not carrying on any business, She is yet to start a business of her choice viz STD booth. She has proposed to start the above business in the petition premises. In furtherance of such proposal, the petitioner is said to have some steps which are reflected though Ex.P.1 to P3 (s). Ex.P.1 is the acknowledgement of receipt of an application for STD booth connection, by the petitioners daughter by name T.Kavitha. Ex.P.1 is undoubtedly issued by the Telecom Department. So, it is an authenticated receipt which only cogently corroborates the version of the land. Ex.P.1 is the acknowledgement of receipt of an application for STD booth connection, by the petitioners daughter by name T.Kavitha. Ex.P.1 is undoubtedly issued by the Telecom Department. So, it is an authenticated receipt which only cogently corroborates the version of the land. It is but a audiementary step for getting a phone connection. In short, the petitioners daughter has already applied for the STD Booth connection, thereby proved that a significant proper step prescribed has been taken in all sincerely. She is an educated lady. She is not debarred from applying for STD connection. Under Article 19(g) of our Constitution, all the eligible citizens shall have the right to carry on any occupation, trade of business, any avacation, subject to reasonable restrictions, public policy etc. No eligible woman shall be deprived of her right to choose her career by reason of sex, caste or creed, No gender discrimination is to be shown to any woman. Equal opportunity is available to all. So the tenant cannot be heard to contend that she, being a lady cannot to carry on the intended business. It is upto her to decide her way of career. (16) Ex.P2 is the estimate prepared by a carpentery concern. It is a receipt, as well, for payment of an advance of Rs.5000/-made by the landlord for woodwork inside the petition premises for the proposed business. The carpenter has even drawn a rough sketch of the proposed wood work, to suit to the convenience of the petitioner. In fact, there seems to be no standard pattern for a STD booth, It all depends upon the nesthetic sence and capacity of the landlord to decorate the internal pattern of wooden partition etc. So, whether the carpenter has prepared the sketch or not, there is no condition that the landlord should prepare plan and estimate, Ex.P2 is a document given no doubt by a private concern. But, there is no better or alternative way for the land to prove that he has taken the requisite steps. Ex.P2 is not inadmissible in evidence. There is no contra evidence to this. Besides, no other course of proof is available for the landlord. By itself, Ex.P12 may not be so patent to conceive a direct nexus and deliver the goods effectively. But, read with Ex.P1, Ex.P2 becomes meaningful and relevant. Ex.P2 is not inadmissible in evidence. There is no contra evidence to this. Besides, no other course of proof is available for the landlord. By itself, Ex.P12 may not be so patent to conceive a direct nexus and deliver the goods effectively. But, read with Ex.P1, Ex.P2 becomes meaningful and relevant. It is always the accepted norms that no evidence is to be read in islolation. The question is a matter of what Ex.P1 P2 will take to convince all concerned. After all, the funds needed for the proposed business cannot be beyond the means of the petitioner who was admitted to have been profitably employed in LUCAS TVS Company. Besides, Ex.P3(s) represent certain investments. It is one indication of his ability to mobilise the required funds. As pointed out, there is no fixed cost for the proposed business. If rich enough, a person can install even Air Conditioner in a STD Booth. So, there is no point in saying that the act is so rigid and it is uphill struggle for the landlord to prove his need and bonafide. Due to advent of computer, every office gets computerised. Any device handled yesterday becomes outdated today. So, we cannot expect the landlord to procure all the devices and Instruments well in advance, even before his eviction petition is disposed off. Because, such investment will be a non-performing asset. Besides, they will have be kept idle. Above all they may become out dated in future So the requirement cannot be doubted at every stage. In fact, Ex.P1 to Ex.P3 (s) orchestrate the requirement of the landlord stupendously. Law should not interpreted as to make the landlord to find it extremely difficult to prove his cause. In the circumstances obtained, what could a landlord do to prove his requirement in a matter for consideration. What he should do is an illusionary plan sought to be imposed on him. (17) First of all, what is gatherable from the facts available is that the need simply exists. Based on this ground, we move up to find out whether, it commands bonafide. A legitimate and well founded requirement coupled with the actual and genuine need is bound to grew into a bonafide requirement. After all, the pulse of the landlord has to be ganged and measured in terms of decree of bonafide, only by the use of an accepted parameter is his every action. A legitimate and well founded requirement coupled with the actual and genuine need is bound to grew into a bonafide requirement. After all, the pulse of the landlord has to be ganged and measured in terms of decree of bonafide, only by the use of an accepted parameter is his every action. Here, unambiously, he took certain possible measures to translate his intention into action. Bonafide is the result of sound blending of honest shim, purposeful requirement and a practical need. All molded in one exercise. Here, the steps taken by landlord encompass every fact of his cause, marked by his reasonable exercise. (18) The learned counsel for the respondent would urge that the daughter of the landlord get since married and she becomes a member of her husbands family and so, there is no need for the petitioner to claim the possession of the petition premises. (19) In this regard, it is a matter of certainty that during the prolonged trial and litigation, some sub sequents are bound to occur. After all, change is constant. In this context, the certain portion from judgment of our Honble Apex Court is extracted. In exudes an aura of contemplative guidance. (i) Gaya Prasad Vs. Sh.Pradeep Srivastva, 2001 – 3 – LW 124. "If every subsequent development during the post petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process of system subsists During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lost, joining any new assignment or starting any new work would be at the peril of for feting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the mere would be the member of developments aprouting up during the long interrognus. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, none the less the need would remain in fact. All that is needed is to crase the patina and see the gless". (20) So, notwithstanding the fact, the petitioners daughter is married, her requirement would not become a foined one. In case, if she had been married to a person, who is not at all residing in the city, then an adverse presumption may have to be drawn. It is not the case of the tenant. (21)There is another contention that a lady cannot maintain an STD booth. This is not an acceptable contention. Carrying on a business by the landlord or by any member of his family, should not be construed so rigidly to mean that the business should be carried on by them, by being present or excerting themselves all the time. Business can be managed by the landlord, by employing fit persons. So, it is only an oppugance just to attempt to enfeasale the case of the landlord. Whether the daughter of the petitioner is going to run the booth by herself or through others is not a matter for discussion. 22. Tenant has also filed certain documents before the Trial Court. They were marked as Ex.R1 to R5. They are documents relating to other litigations waged by the landlord and tenant. They are not germane to the issue in this appeal. Previous enmity, animacity or even launching of criminal proceedings do not have any impact on the requirement u/s.10(3)(a)(iii). This issue deserves to be addressed independently and resolved. So these documents fail to fit into the well-knit case of the landlord. 23. As known to all, the tenant cannot dictate terms to the landlord as to whether petition premises is not ideal or not, for the business of the Later. Belative hardship finds no place in the Act. So, there is no need to consider it. Likewise, the question of finding out whether the married daughter of the landlord depends upon the income derivable from the proposed business, sought to be located in the petition premises, is to be discussed. Belative hardship finds no place in the Act. So, there is no need to consider it. Likewise, the question of finding out whether the married daughter of the landlord depends upon the income derivable from the proposed business, sought to be located in the petition premises, is to be discussed. Married daughter continues to be the member of her fathers family as well, within meaning of this Act. So the petition is quite maintainable. Other things are not relevant for the current issue. Citations of respondent are not contributive to him on facts differ. 24. Lastly, the respondent contends that no prepetition notice was issued to the tenant. There is absolutely no such mandatory provision in the Act. It is only optional. Failure to issue such notice is not at all an infirmity affecting the case which otherwise is found to be in order. 25. In the above circumstances, the landlord has established bonafide requirement through his evidence. So, the judgment and decree of trial court call for interference. Accordingly, they are set aside. 26. In the result, judgment and the decree of the Trial Court are set-aside. Consequently, the appeal is allowed. Time for eviction is two months." 9. Aggrieved by the Judgment and Decree passed in R.C.A.No.905 of 1997, by the VIII Small Causes Judge, Chennai, on 29.11.2002, the tenant has filed the above Civil Revision Petition. 10. Learned counsel appearing for the petitioner contended that the appellate Judge has totally erred in revising the considered Judgment of the Rent Controller in directing eviction under Section 10(3)(a)(iii) of the Act. It has been stated that the learned Judge failed to consider that the claim in Para 4 of the main R.C.O.P. was that the requirement is for the unmarried and unemployed daughter for the purpose of opening a telephone booth with STD, ISD facilities and the learned Judge had failed to note that the intention for evicting him was to commence a business and not otherwise. Subsequently, the daughter of the landlord had got married during the pendency of the proceedings and had shifted her residence from her parents house to her husbands house and as a result, the requirement of the landlord has totally vanished. Subsequently, the daughter of the landlord had got married during the pendency of the proceedings and had shifted her residence from her parents house to her husbands house and as a result, the requirement of the landlord has totally vanished. It has been contended that the learned Judge failed to consider that except for the evidence of the respondent as PW1, even his daughter for whose requirement, the eviction was sought for, was not examined to prove the bonafide requirement. 11. It was also contended that the learned Judge failed to consider that in order to evict the petitioner, the respondent illegally refused to receive the rents from February 1996 onwards, for which the petitioner was forced to resort to the proceedings in R.C.O.P.No.840 of 1996, in which the rents for the period from February 1996 to July 1996 was received on 20.08.1996. It has also been contended that the learned Judge failed to consider that the respondent has only submitted an application for obtaining STD Connection but has not even paid the sum of Rs.3,000/-being the amount payable for obtaining the STD connection. 12. It has also been pointed out that the learned Judge failed to consider that the requirements cannot subsist after marriage of the daughter, who is not dependent on the parents and as such the respondent cannot claim the premises in view of the decision reported in AIR 1999, Supreme Court, 1376. It has also been contended that the learned Judge failed to note that Ex.P2 is only an estimate from a carpenter, who has not been examined and the receipt Ex.P2 has not been proved. 13. As such, the learned Senior counsel for the petitioner has prayed to set aside the decree and judgment in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.VIII, Chennai, dated 29.11.2002 and confirm the decree and judgment of the learned XVI Judge, Court of Small Causes at Chennai in R.C.O.P.No.1002 of 1996, dated 04.09.1997. 14. In support of his contentions, the learned counsel has cited the following Judgments: 2000 – 1 – L.W.778, T.Sivasubramaniam and others. 14. In support of his contentions, the learned counsel has cited the following Judgments: 2000 – 1 – L.W.778, T.Sivasubramaniam and others. v. Kasinath Pujari and others, the relevant head notes of which are as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Ss.10(3)(i)(a) and (e) and 25 – Bona fide requirement for his own occupation or for any member of his family – Mere wish that the son desires to live independently and separately from his father will not constitute need or requirement. When a landlord desires a premises the requirement of law is that the landlord must set out his need for the premises – He must establish that such need is bonafide, genuine, honest and conceived in good faith – held, Pleading not made and hence requirement is not made out – Revisional powers under S.25." C.A.No.15095 of 1996, S.J.Ebenezer v. Velayudhan and others, the relevant head notes of which are as follows: "Rent Control and Eviction – Petition by landlord for eviction on ground of bona fide requirement – Mere desire of landlord, held not enough – Desire must be tested objectively – Burden of proving genuine requirement, held, is on landlord. While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation for the purpose of starting or continuing his own business." AIR 1990 SUPREME COURT 1376, Ramesh v. A.Balreddy, the relevant head notes of which are as follows: "A.P.Buildings (Lease, Rent and Eviction) Control Act (1960), S.10 – Eviction petition – Landlord pleading that premises were required for his married doctor daughter for running a separate Clinic – Daughter assisting her doctor husband in his Clinic – Nothing to suggest that landlords married daughter had to depend on her father in any manner – Evidence fully establishing that landlord was forcing tenant to raise rent from time to time and was making further demand which was acceded by tenant – Held, requirement of landlord was fanciful wish and could no be accepted as good ground for eviction." 15. The learned senior counsel for the respondent/landlord argued that the respondent wants to setup a telephone booth for his married daughter for which he had filed an application on 09.02.1996. He had also obtained quotation from a wood worker on 28.02.1996 and had also paid an advance of Rs.5,000/- for setting up the telephone booth. As such, it is evidence that the landlord has taken steps to open the STD Booth for his married daughter. The learned Senior Counsel further pointed out that as the landlords daughter is an unemployed graduate the landlord with the intention of helping his daughter is in the process of setting up a telephone/STD booth to enable his daughter to get a reasonable income. As such, the intention of the landlord cannot be considered malafide. The learned senior counsel further pointed out that the order passed by the learned Rent Controller is an erroneous one and has been passed without appreciating evidence given by the landlord and without considering his bonafide requirements. That order has been rightly set aside by the learned Rent Control Appellate Authority. The Judgment and Decree has been passed by the learned Rent Control Authority only after considering all the relevant grounds of appeal and respondents arguments. The learned senior counsel has therefore prayed for dismissal of the revision petition. 16. Considering the facts and circumstances of the cases decree and decreetal order passed by the learned XVI Rent Controller in R.C.O.P.No.1002 of 1996, dated 09.09.1997 and Judgment and decree passed in R.C.A.No.905 of 1997 passed by the learned VIII Small Causes Court Judge, dated 29.11.2002, and arguments advanced by the learned senior counsels appearing on either side, this Court is of the view that 1. The landlords married daughter is an unemployed graduate. Before marriage, she was the classified under the first class legal heir of the landlord. After her marriage, she has become the second class legal heir of the landlord. Anyhow, the fact remains that she is the natural unemployed graduate daughter of the landlord. So, the landlord, in order to help his daughter to get a reasonable income, is in the process of establishing the Telephone/STD business and in proof of his intention to set up such business, he has given application to the Telephone Department on 09.02.1996. Anyhow, the fact remains that she is the natural unemployed graduate daughter of the landlord. So, the landlord, in order to help his daughter to get a reasonable income, is in the process of establishing the Telephone/STD business and in proof of his intention to set up such business, he has given application to the Telephone Department on 09.02.1996. Following this step, the landlord has also obtained quotation from the wood worker and in support of his contentions he has marked two documents as Exs.P1 and P2. 2. The learned Rent Controller, in his finding in R.C.O.P.No.1002 of 1996 has only discussed about the immaterial aspects of loss, which may be incurred by the parties concerned and has not given any finding on the material facts issue to the case as to whether or not the requirements of the landlord is genuine. In the eviction petition the main issue to be considered is only the material issue as to whether the requirements of the landlord is genuine. 17. Considering these two aspects of the case, this Court is of the view that the order of the learned Rent Control Authority in setting aside the order and decreetal order passed in R.C.O.P.No.1002 of 1996 dated 09.09.1997 and allowing the appeal in R.C.A.No.905 of 1997, dated 19.11.2002, is fair and that there is no discrepancy in his Judgment and decree. As such, the above Civil Revision Petition is dismissed. 18. In the result, the above Civil Revision Petition is dismissed and the Judgment and Decree in R.C.A.No.905 of 1997, dated 29.11.202, passed by the learned VIII Small Causes Court Judge, Chennai, is confirmed and consequently, the order and decreetal order in R.C.O.P.No.1002 of 1996, passed by XVI Small Causes Court Judge, is set aside. Connected miscellaneous petition is closed. There shall be no order as to costs. Time for eviction is six (6) months.