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2013 DIGILAW 188 (MAD)

A. G. Sivanandam v. S. Arokyasamy

2013-01-08

T.MATHIVANAN

body2013
Judgment :- 1. This memorandum of civil revision is directed against the Judgment and Decree dated 22.03.2005 in R.C.A.No.2 of 2004, on the file of the learned Subordinate Judge, Poonamallee, confirming the Order of dismissal dated 31.12.2003 and made in R.C.O.P.No.10 of 2000, on the file of the learned Rent Controller (learned District Munsif-cum-Judicial Magistrate), Ambattur. 2. The revision petitioner is the landlord and the respondent herein is the tenant in respect of the shopping premises described in the schedule of the petition. The revision petitioner had filed a rent control original petition in R.C.O.P.No.10 of 2000, under Section 10(2)(1) and 3(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the respondent herein on the file of the learned Rent Controller (learned District Munsif-cum-Judicial Magistrate), Ambattur for eviction on the following two grounds: i. Wilful default in payment of rent from September 1999 upto date; and ii. For own use and occupation of the revision petitioner's son for non-residential purpose. 3. The respondent herein is a tenant under the revision petitioner in respect of the shop on a monthly rental basis for non-residential purpose. The respondent has been carrying on tailoring business in the tenanted premises on a monthly rent of Rs.400/-excluding other amenity charges. The tenancy is only on oral basis. The respondent is irregular in payment of rent and committed default from September 1999 to January 2000. He had assured and promised to vacate the shop on or before the last date of December 1999. But, he had not done so. Even after receipt of notice from the revision petitioner, the respondent never come forward to pay the rent. 4. The tenanted shop is a centre shop. One of the sons of the revision petitioner viz., Mr. S. Krishnamoorthy is qualified in Diploma in Polymer Technology and as he remains as an unemployed, the tenanted suit shop is required only for the non-residential purpose of petitioner's son. Excepting the said shop, no other building or shop is available for the petitioner for non-residential use. Since it is an old building, it is also required repairs. 5. S. Krishnamoorthy is qualified in Diploma in Polymer Technology and as he remains as an unemployed, the tenanted suit shop is required only for the non-residential purpose of petitioner's son. Excepting the said shop, no other building or shop is available for the petitioner for non-residential use. Since it is an old building, it is also required repairs. 5. On the other hand, the respondent, in his counter affidavit has contended that he is in occupation of the tenanted shop for the past ten years and at the time of his induction into to the tenancy, he had paid a sum of Rs.7,000/-as an advance to the petitioner. He is very regular in payment of monthly rent as well as in payment of electricity consumption charges to the landlord till date. But, the petitioner is not in the habit of issuing receipt for the same. 6. Further, the respondent has contended that since the petitioner had refused to issue receipts for the monthly rent and electricity charges, the respondent started sending the monthly rent and electricity charges through money order from February 2000 onwards. In the interregnum, on the date of first hearing of the rent control original petition in R.C.O.P.No.10 of 2000, the counsel for the petitioner had received the rent upto date on behalf of the revision petitioner and acknowledged the receipts. 7. The respondent has also contended that the petitioner's son is not at all qualified and an un-employed and as such he never required the tenanted shop for his business purpose. 8. He has also contended that he is a handicapped person and that he did not have any source of income to maintain his family excepting the tailoring business. He has invested huge amount for the past ten years and this petition is filed with a view to wreck vengeance on the respondent for the reason that the respondent had divulged certain facts to the Police with regard to the second marriage of the petitioner's son Mr. S. Krishnamoorthy. 9. Two witnesses were examined on behalf of the revision petitioner including him. During the course of their examination Exs.P1 to P7 were marked. On the other hand, the respondent himself had examined as D.W.1 and during the course of his examination Exs.R1 to R3 were marked. 10. S. Krishnamoorthy. 9. Two witnesses were examined on behalf of the revision petitioner including him. During the course of their examination Exs.P1 to P7 were marked. On the other hand, the respondent himself had examined as D.W.1 and during the course of his examination Exs.R1 to R3 were marked. 10. On appreciation of the evidences both oral and documentary, the learned Rent Controller had dismissed the petition on 31.12.2003 on the following three grounds: i. The revision petitioner is having other non-residential building apart from the tenanted premises; ii. The respondent had been occupying the tenanted premises for more than ten years; and iii. The respondent had been paying the rent regularly. 11. Challenging the Order of dismissal dated 31.12.2003, the revision petitioner preferred the rent control appeal in R.C.A.No.2 of 2004, before the learned Rent Control Appellate Authority viz., the learned Subordinate Judge, Poonamallee. 12. After hearing both sides, the learned Rent Control Appellate Authority had dismissed the appeal on 22.03.2005, confirming the Order of the Rent Controller, on the following three grounds: i. Non-mentioning of owner's occupation in Ex.P1 Notice; ii. Tenancy was not duly terminated; and iii. The petition seeking eviction was filed against the respondent on personal vendetta as he had given a statement before the Police Officials against P.W.2. 13. Having been lost his case before the Tribunals below, the revision petitioner being the landlord has approached this Court by way of this revision petition. 14. Mr. N. Jayabalan, learned counsel appearing for the revision petitioner has advanced his arguments on the following two grounds: i. Wilful default in payment of rent; and ii. The tenanted shop is required for the owner's occupation for running polymer business. 15. With regard to the wilful default in payment of rent, he has submitted that the respondent was in default for paying rent for the period from September 1999 to January 2000. Ex.P3 would clearly depict the period of default in payment of rent. 16. He has also submitted that in-fact the respondent had sent the rent for the month of January 2000 alone by money order to the revision petitioner. But, the respondent had wantonly neglected to pay the rent from September 1999 to December 2000. 17. Ex.P3 would clearly depict the period of default in payment of rent. 16. He has also submitted that in-fact the respondent had sent the rent for the month of January 2000 alone by money order to the revision petitioner. But, the respondent had wantonly neglected to pay the rent from September 1999 to December 2000. 17. He has also argued that after filing of the rent control original petition, the respondent had paid the default rent for the period from September 1999 to January 2000 before the rent controller. 18. He has also added that the revision petitioner, who was examined as P.W.1 had admitted the receipt of rent through money order along with the electricity charges after filing of the rent control original petition. But, the learned Rent Controller, had misconstrued the evidence of P.W.1 in his cross-examination and come to wrong conclusion as if the revision petitioner had refused to receive the rent, which was sent by the respondent. 19. With regard to the second ground, he would submit that the revision petitioner is having three sons and his first son is qualified in Diploma in Polymer Technology. He has also added that the petition mentioned premises and other buildings are shop premises and that all other portions are leased out. 20. He has also submitted that the tenanted shop is the second shop, which is having nexus with the revision petitioner's residence on the backyard and therefore this shop is needed to the petitioner's son for running the polymer business. He has also submitted that in order to substantiate this fact, the revision petitioner had exhibited Exs.P5 to P7, which would go to show the genuineness of the claim of owner's occupation. The petitioner's son was examined as P.W.2 and he has also deposed that he is qualified in Polymer Technology and having adequate fund to run the business. 21. This Court has carefully perused the averments of the grounds of revision petition as well as the other materials available on record. 22. The sudden increase in the banking balance of P.W.2 would not disqualify and discredit his evidence with regard to the fact that he was having adequate fund to run Polymer business in the tenanted shop. 21. This Court has carefully perused the averments of the grounds of revision petition as well as the other materials available on record. 22. The sudden increase in the banking balance of P.W.2 would not disqualify and discredit his evidence with regard to the fact that he was having adequate fund to run Polymer business in the tenanted shop. The finding of the Rent Control Appellate Authority that only for the purpose of evicting the respondent from the tenanted shop, P.W.1 had shown sudden increase in his banking deposit, is absolutely baseless. 23. The other fact i.e., the respondent's occupation of the tenanted shop for more than ten years and he being a handicapped person would not give any entitlement to occupy the said shopping premises permanently. The convenience of the landlord as well his intention have to be considered in a positive manner. The respondent, being the tenant, shall not compel the revision petitioner, being the landlord to occupy some other premises for the purpose of running polymer business. 24. As observed in the fore-going paragraph, the tenanted premises as per the evidence given by P.W.1 is having close nexus with the backyard of his house and therefore he is in need of the petition mentioned shopping premises so as to enable his son to run the said polymer business and in that connection the convenience of landlord as well his son has to be looked into and to be approached in proper perspective while exercising equity and for this purpose the loophole available in the law cannot be taken advantage in favour of the respondent. 25. On considering the submissions made by Mr. N. Jayabalan, learned counsel appearing for the revision petitioner, this Court is of view that the requirements of the revision petitioner is bonafide and if the tenanted shop is available for him, then he would be conveniently able set up the polymer business for his son in the said shop. 26. Non-mentioning of owner's occupation in the notice viz.,Exs.P1 to P3 would not falsify the claim of the revision petitioner. 27. In support of his contention, the learned counsel appearing for the revision petitioner has placed reliance upon the following decisions: i. Kishore, B. vs. D.Maragathavalli, reported in 2007 (2) CTC 797 ; ii. National Studios rep.by its partners & others v. Mrs.Prema Kalyanasundaram, reported in 1997-3-L.W.269; iii. 27. In support of his contention, the learned counsel appearing for the revision petitioner has placed reliance upon the following decisions: i. Kishore, B. vs. D.Maragathavalli, reported in 2007 (2) CTC 797 ; ii. National Studios rep.by its partners & others v. Mrs.Prema Kalyanasundaram, reported in 1997-3-L.W.269; iii. Abdur Rashed Sahib, M.K. v. A.R.Rahimunnissa Begum, reported in 1990-1-L.W.582; iv. Thirunavukkarasu vs. Vasantha Ammal, reported in 1997-2-L.W.607; v. Dr.C.Mohan Reddy vs. Dr.S.Florest, reported in 2010-4-L.W.183; vi. K.S.Sundararaju Chettiar vs. M.R.Ramachandra Naidu, reported in (1994) 5 SCC 14 ; vii. Muthiah Asari vs. Ramanathan, reported in 1982 TLNJ 21; viii. Sivanraj vs. Essakkimuthu, reported in 1999(II) CTC 215 ; ix. The Regional Manager, Tamil Nadu Handloom Weavers' Coop., Society Ltd., reported in 2010 (6) CTC 454 ; x. Deep Chandra Juneja vs. Lajwanti Kathuria, reported in (2008) 8 SCC 497 ; xi. Janaki Ammal and others vs. Saminathan (died), etc., & others, reported in 2004-3-L.W.561; xii. P.N.Raju Chettiar vs. The State of Tamil Nadu rep.by the Secretary, Home Department (Accommodation Controller) and others, reported in (1970) 1 MLJ 249 . 28. In Deep Chandra Juneja vs. Lajwanti Kathuria, reported in (2008) 8 SCC 497 , the Division Bench of the Apex Court has held that the landlord is the best judge of his requirement. Courts have no concern to dictate how and in what manner he should live. 29. Mr. A.R. Nixon, learned counsel appearing for the respondent has submitted that the plea of wilful default had been pleaded only in paragraph No.3 of the petition and excepting this, nowhere the petitioner had stated that the respondent had committed wilful default in payments of rent. 30. He has also contended that in Ex.P1, the revision petitioner had not specified the fact that the tenanted shop was required for owner's occupation. Ex.P2-reply issued by the revision petitioner through his counsel did not reflect the bonafide intention of the petitioner to occupy the premises. 31. He has also argued that the respondent is a handicapped person and he did not have any other source of income to maintain his family excepting his tailoring business and if he is evicted from the shopping premises his livelihood would be very much affected and he along with the family members would be brought to the street. While advancing his arguments, he has drawn the attention of the Court to the evidence of D.W.1. 32. While advancing his arguments, he has drawn the attention of the Court to the evidence of D.W.1. 32. In order to fortify his contentions, he has also placed reliance upon the following decisions: i. Shahjahan vs. Janath Ashraf Uduman, reported in 2006(1) CTC 333 ; and ii. Bhagwan Chand & Co., vs. Utham Chand, reported in 2006 (2) CTC 845 ; 33. In the first decision viz., Shahjahan vs. Janath Ashraf Uduman, reported in 2006(1) CTC 333 , this Court has observed that in order to make a claim under Section 10(3)(a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, main ingredients to be satisfied for an order of eviction are: (1) Landlord or his family member for whom building is required must be carrying on business, and (2) They should not own a building of their own in the city/town. Mere intention to carry on business would not satisfy statutory requirement i.e., premises is sought for running an agency business. Mere intention to commence business is not a ground for eviction and it will not amount to carrying on business as required under the Act. 34. In the second decision viz., Bhagwan Chand & Co., vs. Utham Chand, reported in 2006 (2) CTC 845 , the learned single Judge of this Court has observed that only if bonafide is found in favour of landlord, the question of comparative hardship need to be gone into. 35. On coming to the instant case on hand, it is substantiated that the revision petitioner and his son were making preparations to establish the polymer business in the tenanted premises and therefore it cannot be heard to say that the intention is not bonafide. 36. Even though P.W.2 was able to deposit sizable amount in his banking account after filing of the suit, it is known fact of everybody that no business could be started without adequate fund and necessary recognition and authorization from the Government authorities. It would be sufficient to substantiate the fact that the landlord has been making bonafide arrangement to commence his business and it is also pertinent to note here that P.W.2 being the son of the revision petitioner is an unemployed and it is also a proven fact that he is a diploma holder in polymer technology. 37. It would be sufficient to substantiate the fact that the landlord has been making bonafide arrangement to commence his business and it is also pertinent to note here that P.W.2 being the son of the revision petitioner is an unemployed and it is also a proven fact that he is a diploma holder in polymer technology. 37. On the other hand, the respondent has not come forward with any acceptable evidence to show that P.W.2 has been working some where and making fake arrangement to make it appear that he is going to occupy the premises only for running polymer business. 38. On perusal of the Judgment and Decree of the Rent Control Appellate Authority, this Court is of view that the learned Judge has not considered the Exs.P1 to P3 and therefore the finding of the learned Appellate Authority appears to be erroneous one. 39. The other finding that the petition has been filed to wreck vengeance as against the respondent as he had divulged certain facts to Police Officials, with regard to the second marriage of his son Mr. S. Krishnamoorthy, seems to be extraneous and trivial in nature. 40. Having regard to the above observations, this Court is of view that the revision petition is deserved to be allowed. 41. Accordingly, the revision petition is allowed and the Judgment and Decree dated 22.03.2005 in R.C.A.No.2 of 2004, on the file of the learned Subordinate Judge, Poonamallee and the fair and decretal Order dated 31.12.2003 and made in R.C.O.P.No.10 of 2000, on the file of the learned Rent Controller (learned District Munsif-cum-Judicial Magistrate), Ambattur are set aside and the petition in R.C.O.P.No.10 of 2000 is allowed. Consequently, connected miscellaneous petition is closed. No costs. 42. The respondent is given two months time to vacate the tenanted premises and to surrender the vacant possession of the same to the revision petitioner.