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2010 DIGILAW 2196 (MAD)

Natarajan v. N. M. Kaliappan

2010-05-19

M.VENUGOPAL

body2010
Judgment :- 1. The Revision Petitioner/Appellant/Tenant has projected this Civil Revision Petition as against the order dated 3.4.2009 in R.C.A. No.88 of 2007 passed by the Learned Appellate Authority viz., II Additional Sub Judge, Coimbatore. 2. The learned Appellate Authority viz., II Additional Sub-Judge, Coimbatore while passing order in R.C.A. No.88 of 2007 on 3.4.2009 has among other things observed that “on considering the location of the complex, the Petition mentioned premises alone as frontage, it is for the Respondent/Landlord to decide about the suitable portion to run his Advocate office and the Revision Petitioner/Tenant is disentitled to suggest the alternative portion to the Respondent/Landlord for running his Advocate office, etc.,” and resultantly, dismissed the Rent Control Appeal without costs. 3. Being dissatisfied with the order dated 3.4.2009 in R.C.A. No.88 of 2007 passed by the learned Appellate Authority viz., II Additional Sub-judge, Coimbatore, the Revision Petitioner/Tenant has projected this Civil Revision Petition before this Court. 4. The point that arises for consideration in this Civil Revision Petition is: “Whether the Respondent/Landlord requires the petition mentioned building for his own occupation as a bona fide one?” Contentions, Discussions and Findings: 5. According to the learned Counsel for the Revision Petitioner/Tenant, the order of the learned Rent Controller and that of the learned Appellate Authority are against the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and that the learned Appellate Authority has not analysed the subject matter in issue in the Appeal independently. 6. Continuing further, it is the contention of the learned Counsel for the Revision Petitioner/Tenant that the claim of the respondent/Landlord does not satisfy the requirement of Section 10 (3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and therefore, the request of the Respondent/Landlord ought to have been rejected by the Authorities concerned. 7. That apart, the learned Counsel for the Revision Petitioner/Tenant submits that the Respondent/Landlord owns another Non-Residential Building (Kaliappa Complex) in the same locality and he is using the same for a non-residential purpose and therefore, the Respondent/Landlord is not entitled to seek a relief of eviction of the Revision Petitioner/Tenant. 8. 7. That apart, the learned Counsel for the Revision Petitioner/Tenant submits that the Respondent/Landlord owns another Non-Residential Building (Kaliappa Complex) in the same locality and he is using the same for a non-residential purpose and therefore, the Respondent/Landlord is not entitled to seek a relief of eviction of the Revision Petitioner/Tenant. 8. According to the learned Counsel for the Revision Petitioner/Tenant, mere desire of the Respondent/Landlord is not sufficient to claim the relief and the desire for the Respondent/Landlord’s use and occupation must be tested objectively and as a matter of fact, the finding of the learned Appellate Authority that the Respondent/Landlord does not own any other building is not a correct one. 9. Lastly, it is submitted on the side of the Revision Petitioner/Tenant that the Respondent/Landlord is carrying on business in the same premises and this aspect of the matter has not been appreciated by the authorities under the Act and this has resulted in miscarriage of justice. 10. The learned Counsel for the Revision Petitioner/Tenant cites the decision of this Court in Ayodhiraman v. Subramaniam and others, 2003 (3) CTC 81 : 2003 (2) MLJ 316 , wherein, it is observed that ‘Landlord in possession of a portion of the building can only seek additional accommodation and a Petition filed under Section 10(3)(a)(iii) of the Act is not maintainable’. 11. The learned Counsel for the Revision Petitioner/Tenant also relies on the decision of this Court in Sharbudin and others v. K. Subramani, 2004 (2) MLJ 107 at 108, wherein, it is observed that ‘the requirement of the Landlords was not bona fide since several other Tenanted portions occupied by others for business purposes fell vacant during the pendency of the proceedings and the Landlord was not acting bona fide in not using the same for the business of his son’. 12. The learned Counsel for the Revision Petitioner/Tenant draws the attention of this Court to the decision in D. Periyagopal alias Gopal v. K Viswanathan, 2006 (1) MLJ 663 , wherein, it is held that ‘when the action of the Landlord is filled with the aim of throwing the Tenant out of the tenement, that will make his requirement of the building for own use, only as mala fide’. 13. 13. Yet another decision in R. Sudhandhira Devi and others v. K. Navanithakrishna, 2005 (4) MLJ 127 , is relied on the side of the Revision Petitioner/Tenant whereby and whereunder, it is laid down that ‘the duty cast upon the Landlord cannot be disowned, contending that pleadings in the rent control proceeding should not be strictly construed, since the minimum requirements of the pleadings to satisfy the ingredients required for eviction must be placed’. 14. Besides the above, the learned Counsel for the Revision Petitioner/Tenant places reliance on the following decisions: (a) In T.K. Kameswaran v. R. Santhanakrishnan, 2007 (1) CTC 477 , wherein, it is held that ‘the Chartered Accountant/Landlord has let out a bigger portion owned by him to Insurance Company and admits in his evidence that portion under Tenant’s occupation was originally a car shed and measures only about 227 sq.ft. and not establishing the case that he was a practicing Chartered Accountant for 20 years by adequate materials and the requirement of Landlord is not a bona fide’. (b) In Shanmuga Sundaram v. A.S. Kamalam, 2004 (1) MLJ 560 , this Court has held hereunder: “Whereas on both facts and law, serious errors have been committed by both the Rent Controller and the Appellate Authority in arriving at their concurrent findings, which could very well be branded as concurrent errors committed by them, the High Court would be justified in interfering with the same.” (c). IN S.J. Ebenezer v. Velayudhan and others, 1998 (2) MLJ 50 , the Hon’ble Supreme Court has observed that ‘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 accomodation for the purpose of starting or continuing his own business’. 15. In the main Rent Control Original Petition No.181 of 2005, the Respondent/landlord has among other things averred that he is an Advocate practicing at Coimbatore for the past 18 years and previously, he was practicing at Namakkal for 27 years and was having his office at No.3, Kadakalakkara Lane No.2, Coimbatore as Tenant. 15. In the main Rent Control Original Petition No.181 of 2005, the Respondent/landlord has among other things averred that he is an Advocate practicing at Coimbatore for the past 18 years and previously, he was practicing at Namakkal for 27 years and was having his office at No.3, Kadakalakkara Lane No.2, Coimbatore as Tenant. Further, since his Landlord requested him to vacate, he agreed to do so and planned to shift his office to this own building in which, he is now running his business and that, he requested the Revision Petitioner/Tenant to vacate his building for the said purpose and the Revision Petitioner initially agreed to vacate the shop and deliver possession, but now, he is refusing to vacate and deliver possession in spite of several demands and requests made by the Respondent/Landlord, he has taken a hostile attitude. 16. It is the further case of the Respondent/Landlord that his residence is far away from the Court viz., about 7 km and he is unable to have office thereon and therefore, he requires the petition mentioned building for his office, for conducting his profession and Court work regularly since he has to meet his clients and to give instructions to them. 17. In the main Rent Control Original Petition, the Respondent/Landlord in paragraph 7 has stated the following: “The Petitioner has no other non-residential building of his own in Coimbatore City. Hence, the Petitioner requires the Petition mentioned building for his own occupation and his requirement is bona fide. Hence, this Petition”. 18. It is also the plea of the Respondent/Landlord that though there are two shops in the ground floor, the Petition mentioned shop i.e., in the southern side is having a wide parking area and it will be vital for him to part his car and also parking facilities for his clients. The northern shop is not having much space as in the case of the petitioner mentioned shop and also the distance between the Court and the petition mentioned building is only 12/2 kms and it will be very much convenient and suitable for him to have his office with a good road vicinity. 19. The northern shop is not having much space as in the case of the petitioner mentioned shop and also the distance between the Court and the petition mentioned building is only 12/2 kms and it will be very much convenient and suitable for him to have his office with a good road vicinity. 19. In the counter to the main R.C.O.P. Petition, the Revision Petitioner/Tenant has inter alia stated that he has paid Rs.40,000/- towards advance and the monthly rent was fixed initially at Rs.2,000/- and to Rs.1,000/- towards amenity charges and that, the rent and amenity charges will be increased by 10% with effect from 1.5.2001 as per the recital of the Lease Agreement. 20. The stand of the Revision Petitioner/Tenant is that he is the Tenant from 1999 and that, a Lease Agreement has been entered into between himself and the Respondent/Landlord on 26.4.1999 to let out the petition mentioned shop. 21. According to the Revision petitioner/Tenant, the Respondent/Landlord has let out the shops and officers to several persons and that it is a commercial complex, and that the Respondent/Landlord is having his office in the same building and further that he has also constructed new annexure building behind the existing complex and offered Official/shop rooms for new Tenants and that the should have availed any one of the rooms for his own purpose. 22. The Revision Petitioner/Tenant takes a specific plea in his counter that the Respondent/Landlord is already running his office in the premises and that he also constructed new office building and let it out to the new Tenants after filing of this Petition and thereafter, the requirements for his own occupation is not maintainable in law. 23. It is the evidence of P>W.1 (Respondent/Landlord) that since he is old, he cannot keep his office in the first floor in other portion of his building and utilize the same and that in the City of Coimbatore, apart from the petition mentioned premises, he has no other building of his own and therefore, the petition mentioned property is required for his own use. 24. It is the further evidence of P.W.1 (Respondent/Landlord) that he has let out the back portion of the building in the petition mentioned property for rent and in that place, there is not facility for him to keep his office and to park his vehicle. 25. 24. It is the further evidence of P.W.1 (Respondent/Landlord) that he has let out the back portion of the building in the petition mentioned property for rent and in that place, there is not facility for him to keep his office and to park his vehicle. 25. R.W.1 (Revision Petitioner/Tenant) in his evidence has stated that in front of his shop, two vehicles can be parked and near the front portion of the shop of the petition mentioned property, car parking is done and behind his office, there was one office in which the Respondent/Landlord was doing his practice as an Advocate. 26. The Revision Petitioner/Tenant (R.W.1) in his Chief Affidavit has stated that behind the petition mentioned property, the Respondent/Landlord has vacant site in which, he has constructed seven office rooms by letting out to new Tenants, just six months before and after filing of the Petition, the Respondent/Landlord has placed ‘To let’ Board and has inducted other Tenants in the new building and further that, the Respondent/Landlord’s car cannot be parked in front of his shop because the police department has notified it as ‘No Parking for Cars’. 27. It is to be borne in mind that Section 10(3)(a)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 speaks of recovery of building for keeping vehicle. As per Section 10(3)(a)(ii), two conditions must be fulfilled; (i) the Non-Residential Building must be used for the purpose of keeping a vehicle or adapted for such use; and (ii) the Landlord or any member of his family requiring the said building is not occupying any such building. 28. In C. Kuppuswamy Naidu v. Krishtappa Chetty (Did) and another, 1985 (1) MLJ 92 , it is held that ‘when the Landlord is not occupying any such building and it is admitted that the said building is used for the purpose of parking vehicles, the Landlord is entitled to an order of eviction’. 29. At this stage, this Court pertinently points out the decision in Pitchaipillai v. Dominique Marie Ignace Prosper, 1997 (3) LW 106 at 107 wherein, it is held as follows: “From a reading of Section 10(3)(a)(ii), it is clear that if the building is adaptable for keeping the vehicle, eviction could be ordered. The Act also does not say that the Landlord should be the owner of the vehicle. The Act also does not say that the Landlord should be the owner of the vehicle. What it says is that the Landlord must have a place to keep the vehicle”. 30. In Dalichand v. B.S. Ramalingam, 1999 MLJ (Supp.) 389, it is held that ‘the High Court is not a second Court of First Appeal and the High Court in Revision cannot re-appreciate evidence and reverse concurrent findings’. Also in the said decision, it is further held ‘when the Landlord shows a prima facie case presumption that the requirement is bona fide and that a Tenant cannot dictate either terms to the Landlord or how else the Landlord can adjust without evicting the Tenant’. 31. This Court aptly points out the decision in Jawantharaj Mehta v. Ramachandra Chetty, 1978 LW (S.N.) 65 wherein, it is held that ‘as the Landlord can apply for an additional accommodation for a Non-Residential Building under Section 10(3)(c) only for the purpose of carrying on a business, he cannot under that provision apply for the purpose of keeping his vehicle’. 32. Admittedly, in determining a Petition for eviction under Section 10(3)(a)(ii) of the Act, a restricted meaning cannot be given to the term ‘Adapted’. In fact, the meaning to be given is ‘Adaptable’. The premises in issue must be fit for use as car shed and premises which could be re-modelled or converted and made fit for the purpose of keeping vehicle can be said be word ‘Adapted’ for such use, as per decision Mohammed Jamal v. Sureka, 2002 (1) CTC 65 : 2002 (2) LW 341 . 33. It cannot be gain said that what is contemplated as per Section 10(3)(a)(ii) of the Act is not only a Non-Residential Building, but also a building which can be adapted for such use. As a matter of fact, the building need not be used as a garage at the time of filing of the Petition and it may be either used as a garage or alternatively, it may be of such structural design that it can be used as a garage or alternatively, it may be of such structural design that it can be used as a garage with certain adaptation as per decision, Mrs. Thangam v. P./K. Madavan, 1986 TLNJ 49 at 50. 34. Thangam v. P./K. Madavan, 1986 TLNJ 49 at 50. 34. Added further, it cannot be forgotten that the ownership of the vehicle need not come in the way asking for the portion in question for his own use as per Section 10(3) (a)(ii) of the Act (vide decision Tuli Brothers v. G.R. Srinivasalu, 1997 LW 555 at 557). 35. As far as the present case is concerned, even though, the Respondent/Landlord in his chief affidavit, has stated that he has no other building except the petition mentioned building, the Revision Petitioner/Tenant in para 4 of his counter has among other things stated that the Respondent/Landlord has let out the shop and other offices to several persons and it is a commercial complex and that, he is having office in the same office and also constructed new annexure building behind the existing building and offered official/shop rooms for new Tenants and he should have availed any one of the rooms for his own purpose and that, new Tenant occupied the offices in the newly constructed building and that the Revision Petitioner and the other old Tenants used to part their vehicles on the left and back side of the premises and that the Respondent/Landlord refused to part the old Tenants’ vehicles inside the campus. 36. In short, the Revision Petitioner/Tenant in his counter to the main R.C.O.P. Petition in paragraph 6 has also stated that the respondent/Landlord is already running his office in the premises and that he also constructed new office complex and let it out to the new Tenants after filing of the-Petition and therefore, the requirement for his own occupation is not maintainable. 37. The Revision Petitioner/Tenant in the Civil Revision Petition has taken a plea that the Respondent/Landlord owns another Non-Residential Building (Kaliappa Complex) in the same locality and he is using the same for Non-Residential purpose. 38. On going through the order dated 15.12.2006 in R.C.O.P. No.181 of 2005 passed by the learned Rent Controlled (District Munsif, Coimbatore), this Court opines that thee is no specific finding rendered by the learned Rent Controller as to whether the Respondent/Landlord owns another Non-Residential Building (Kaliappa Complex) in the same locality and that the Respondent/Landlord possesses only the petition mentioned building and further that he is not occupying any other Non-Residential Building. 39. 39. Likewise, even the learned Appellate Authority’s order dated 3.4.2009 in R.C.A. No.88 of 2007 does not refer to anything about the Respondent/Landlord owning another Non-Residential Building (Kaliappa Complex) as alleged by the Revision Petitioner/Tenant in the same locality and using the same for his Non-Residential purpose. 40. Inasmuch as both the learned Rent Controller as well as the learned Appellate Authority, in their respective orders dated 15.12.2006 and 3.4.2009 have not advertd to about the Respondent/Landlord owning another Non-Residential Building (Kaliappa Complex) or otherwise and rendered a finding one way or other and as such, this Court opines that the Respondent/Landlord has not proved to the subjective satisfaction of this Court that he is not the owner of the another Non-Residential Building (Kaliappa Complex) as stated by the Revision Petitioner/Tenant in the same locality and using the same for his Non-Residential purpose and therefore, this Court on the basis of fair play, equity and good conscience, sets aside the order of the learned Rent Controller viz. Principal District Munsif, Coimbatore dated 15.12.2006 in R.C.O.P. No.181 of 2005 as well as the order of the learned Appellate Authority viz. II Additional Sub-Judge, Coimbatore dated 3.4.2009 in R.C.A. No.88 of 2007, since they are not in consonance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Accordingly, this Civil Revision Petition is allowed and the matter is remitted back to the learned Rent Controller who is directed to deal with R.C.O.P No.181 of 2005 on his file afresh so as to render a categorical finding as to whether the Respondent/Landlord is owning another Non-Residential Building (Kaliappa Complex) other that the petition mentioned building or not. 41. In the result, the Civil revision Petition is allowed leaving the parties to bear their own costs. Consequently, the order passed by the learned Rent Controller dated 15.12.2006 in R.C.O.P. No.181 of 2005 and that the order of the learned Appellate Authority dated 3.4.2009 in R.C.A. No.88 of 2007 are set aside in the interest of justice. 41. In the result, the Civil revision Petition is allowed leaving the parties to bear their own costs. Consequently, the order passed by the learned Rent Controller dated 15.12.2006 in R.C.O.P. No.181 of 2005 and that the order of the learned Appellate Authority dated 3.4.2009 in R.C.A. No.88 of 2007 are set aside in the interest of justice. The matter is remitted back to the learned Rent Controller (Principal District Munsif, Coimbatore) who is directed to deal with R.C.O.P. No.181 of 2005 afresh, by permitting the parties to adduce both the oral and documentary evidence and also to examine further witnesses on their sides, if any if they so desire and further the learned Rent Controller is directed to provide adequate opportunities to both the parties in this regard and to dispose of R.C.O.P. No.181 of 2005 within a period of three months from the date of receipt of a copy of this order and to report compliance to this Court without fail. Consequently, connected Miscellaneous Petitions is closed.