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2014 DIGILAW 1103 (MAD)

Mumtaz Begum v. S. Goutham Chand Jain

2014-06-03

R.KARUPPIAH

body2014
Judgment 1. The revision petitioner/Landlady filed this revision petition against the order of Rent Control Appellate Authority made in RCA No.4 of 2005 reversing the order of the Rent Controller made in RCOP No.61 of 2000. 2. For the sake of convenience the petitioner/landlady referred as revision petitioner and the tenant in the original petition is referred as respondent. 3. The revision petitioner/landlady filed this revision petition to direct the respondent to quit and deliver the vacant possession of the petition premises to the petition under Section 10(3)(a)(iii) of Tamil Nadu (Building Lease and Rent Control) Act. Briefly the case of the revision petitioner is that the respondent is a tenant under the revision petitioner. The said tenancy is a monthly tenancy and the respondent is carrying on business in the property. Further, the case of the revision petitioner is that revision petitioner's son Dr. Asif Baig is highly qualified dental Surgeon and he completed his Masters Degree in October 1999 and started practising. It is also averred in the petition that the petitioner's son made arrangement to start a dental clinic at Pallavaram and for that he has got all the instruments which are necessary for the purpose of running dental clinic. Further, at present, the revision petitioner's son practising only at revision petitioner's residence for few hours in a day and Pallavaram is 15 kms from the residence of the revision petitioner. The revision petitioner's son has got sufficient funds to invest and run the above said dental clinic. The revision petitioner and her husband requesting the respondent to vacate and hand over the possession for her son's occupation to run a dental clinic in the said property. But, the respondent not yet vacated the property. Further, the revision petitioner's husband Dr.Amanulla could not run the clinic at Pallavaram on account of his ill health. The premises occupied by the present respondent is most convenient and suitable place for the revision petitioner's son to run a dental clinic. Therefore, the revision petitioner sent a lawyer notice to the respondent determining and terminating the tenancy by the end of 31.07.2000. The respondent sent a reply notice dated 18.06.2000 with false allegations. Therefore, the revision petitioner filed the petition prayed for to quit and deliver possession to the revision petitioner. 4. Therefore, the revision petitioner sent a lawyer notice to the respondent determining and terminating the tenancy by the end of 31.07.2000. The respondent sent a reply notice dated 18.06.2000 with false allegations. Therefore, the revision petitioner filed the petition prayed for to quit and deliver possession to the revision petitioner. 4. The respondent has filed a counter in which, it is stated that the revision petitioner already refused to receive the rent and hence, the respondent filed a petition in RCOP No.13 of 2000 under Section 8(5) of Tamil Nadu (Buildings Lease and Rent Control) Act, and then the revision petitioner started to receive the rent from the respondent. It is further stated in the counter that the respondent has no knowledge of the qualification of the revision petitioner's son, but, the allegation that the revision petitioner's son is going to open dental clinic and made arrangement for opening the clinic are all false. According to the respondent, the revision petitioner has some other properties at Pallavaram and the present practising place of the petitioner's son is at her residence is very convenient and he is having full fledged dental clinic. Further, the revision petitioner's son may not have time to come over from his residence to hospital, who is part time doctor in the clinic at Pallavaram, which is at a distance of 25 Kms. Further, the property under the occupation of the respondent is not sufficient and unsuitable for running a clinic. The alleged demand by the revision petitioner, her husband and her son are all false. The revision petitioner and her son had been demanding huge rent but, the respondent did not yield to their demands. The allegation of the revision petitioner is that on account of the revision petitioner's husband's ill health, he is going to run a clinic at Pallavaram and the petition mentioned property is suitable and convenient for running a dental clinic are all false. The claim of the revision petitioner is not bonafide and therefore, the respondent prayed for dismissal of the revision petition. 5. Before the Rent Controller, on the side of the revision petitioner examined two witnesses as PWs 1 and 2 and marked three documents as Exs.P1 to P3. On the side of the respondent, respondent alone deposed as RW1 and marked eight documents as Exs.R1 to R8. 5. Before the Rent Controller, on the side of the revision petitioner examined two witnesses as PWs 1 and 2 and marked three documents as Exs.P1 to P3. On the side of the respondent, respondent alone deposed as RW1 and marked eight documents as Exs.R1 to R8. The Rent Controller has discussed the above said oral and documentary evidence adduced on either side and finally came to a conclusion that the requirement of the petition mentioned property by the revision petitioner/landlady for his son for running a dental clinic is a bonafide one and therefore, allowed the petition and directed the respondent to vacate and hand over the vacant possession to the revision petitioner and also two months time was granted for vacate the property. 6. Aggrieved over the above said order of the Rent Controller, the respondent herein preferred rent control appeal in R.C.A.No.4 of 2005, and the Rent Control Appellate Authority allowed the above said rent control appeal and set aside the order passed by the Rent Controller and dismissed the petition. Aggrieved over the reversal finding of the Rent Control Appellate Authority, the revision petitioner/landlady filed this revision petition. 7. Heard the learned counsel appearing for both sides and perused the materials available on records. 8. The revision petitioner is a landlady and the respondent is the tenant is not in dispute. The petition mentioned property is non-residential building and it is also not in dispute. The revision petitioner filed the petition for eviction under Section 10(3)(a)(iii) of Tamil Nadu (Buildings Lease and Rent Control) Act, for running a dental clinic by the revision petitioner's son namely Dr. Asif Baig. The main contention of the revision petitioner is that the revision petitioner's son namely Dr. Asif Baig completed his Master's degree as Dental Surgeon in October 1999 and started practising in petitioner's residence situated at Chennai, only for few hours in a day. Further, the revision petitioner's son has made an arrangement to start a dental clinic in the petition mentioned property situated at Pallavaram, 15 kms away from the residence of the revision petitioner and for that purpose, he has got all instruments which are necessary for the purpose of running a dental clinic. Further, the revision petitioner's son got sufficient funds to invest to run the dental clinic and therefore, filed this revision petition for eviction. 9. Further, the revision petitioner's son got sufficient funds to invest to run the dental clinic and therefore, filed this revision petition for eviction. 9. On the side of the respondent has not disputed the fact that the revision petitioner's son completed his Master Degree as Dental Surgeon in October 1999 and started practising at revision petitioner's residence situated at Chennai. In the counter, the learned counsel appearing for the respondent stated that the revision petitioner having some other properties at Pallavaram and therefore, the petition mentioned property is not required for him to run a clinic. As rightly discussed in detail by the Rent Controller, on the side of the respondent has not proved that at the time of filing eviction petition any other suitable vacant building available to run the clinic at Pallavaram, wherein the petition mentioned property is situated. The learned counsel for the respondent submitted that the revision petitioner's husband having three shop portions including the portion of the property mentioned in the eviction petition in the same building at Pallavaram and the respondent occupied as a tenant in the petition mentioned portion and the above said portion occupied by the respondent is not suitable for running a clinic by the revision petitioner's son and the revision petitioner has not taking any steps to evict other two tenants and further, the petition is not filed with bonafide intention. Further, the learned counsel for the respondent submitted that the respondent invested lakhs of Rupees for running a Pawn Broker and Finance business in the petition mentioned premises. Further, the learned counsel submitted that the Rent Control Appellate Authority has considered the conduct of the revision petitioner in earlier proceedings and also considered the intention of the revision petitioner and correctly held that the petition is not a bonafide and dismissed the petition and therefore, there is no need to interfere with the above said findings. 10. Per contra, the learned counsel appearing for the revision petitioner submitted that the respondent has not at all produced any documents to prove that at the time of filing petition except the petition mentioned property, any other property was available at Pallavaram to start a dental clinic by the revision petitioner's son. Admittedly, the revision petitioner's son, after completion of his Master Degree running a clinic in the portion of residential building belongs to the revision petitioner situated at Chennai. Admittedly, the revision petitioner's son, after completion of his Master Degree running a clinic in the portion of residential building belongs to the revision petitioner situated at Chennai. In the above said circumstances, the learned counsel appearing for the revision petitioner submitted that as per Section 10(3)(a)(iii) of Tamil Nadu Buildings Lease and Rent Control Act, the revision petitioner is entitled to file petition to evict the tenant for the purpose of her son's business in the petition mentioned property situated at Pallavaram. It is relevant to extract the relevant portion in Section 10(3)(a)(iii) reads as under:- ''10(3)(a)(iii): In case it is any other non-residential building if the landlord or (any member of his family) is not occupying for purposes of a business which he or (any member of his family) is carrying on, a non-residential building in the city, town or village concerned which is his own.'' 11. In the instant case, the respondent has not proved that the revision petitioner having any other non-residential building to start the clinic at Pallavaram. Therefore, as rightly pointed out by the learned counsel appearing for the revision petitioner, the revision petitioner is entitled to file the petition. Further, the revision petitioner's son is doing dental clinic at a portion of residential building at Chennai and he intended to start dental clinic in the petition mentioned property as part time clinic in the petition mentioned property situated at Pallavaram. Further, on the side of the respondent has not stated that the revision petitioner's son has no sufficient fund to start a dental clinic. 12. Per contra, the revision petitioner has clearly stated in the revision petition itself, as the revision petitioner's son having sufficient fund to invest to start a dental clinic and also already he owns all necessary equipments for the lab and the clinic. On the side of the revision petitioner also produced Ex.P1 invoices for purchase of materials for the dental clinic by the revision petitioner's son. The revision petitioner and her son also deposed to prove the case of the revision petitioner. Therefore, on the side of the revision petitioner has clearly proved the bonafide requirements of the petition mentioned property to run a clinic by the revision petitioner's son. 13. The revision petitioner and her son also deposed to prove the case of the revision petitioner. Therefore, on the side of the revision petitioner has clearly proved the bonafide requirements of the petition mentioned property to run a clinic by the revision petitioner's son. 13. The learned counsel appearing for the respondent relied on two decisions reported in 1995 MLJ 59 (Super Forgings and Steels (Sales) Private Limited v. Thyabally Rasuljee (dead) through L.Rs.,) and reported in 2004(1) CTC 94 (Bata India Limited represented by its Manager v. M.R. Manickam). The facts of the above said decisions are not applicable to the facts of the present case. In the instant case as already discussed, the revision petitioner has filed petition under Section 10(3)(a)(iii) of Tamil Nadu (Buildings Lease and Rent Control) Act, by contending that the petition mentioned property requires for the revision petitioner's son to run a dental clinic in the above said premises and proved the above said facts by adducing reliable oral and documentary evidence. Therefore, the above said requirement is bonafide requirement as correctly discussed by the Rent Controller and hence, the facts of the two decisions relied on by the learned counsel for the respondent are differs and hence it is not helpful to the respondent as rightly pointed out by the learned counsel appearing for the revision petitioner. 14. From the above said discussion, this Court is of the view that the Rent Controller has discussed the above said oral and documentary evidence adduced on either side and came to a correct conclusion and granted the relief as prayed for by the revision petitioner. But, the Rent Control Appellate Authority mainly relied on the past events namely the notice issued by the revision petitioner to the erstwhile tenant namely Premchand Jain and on that ground Rent Control Appellate Authority wrongly held that this petition is not filed with bonafide intention and on the above said ground the appeal was allowed and dismissed the eviction petition. As rightly pointed out by the learned counsel appearing for the revision petitioner, the finding of the Rent Control Appellate Authority is perverse and also illegal finding. Therefore, the above said order of the Rent Control Appellate Authority is to be set aside and the revision petition is to be allowed. 15. As rightly pointed out by the learned counsel appearing for the revision petitioner, the finding of the Rent Control Appellate Authority is perverse and also illegal finding. Therefore, the above said order of the Rent Control Appellate Authority is to be set aside and the revision petition is to be allowed. 15. In the result, this civil revision petition is allowed and the order and decreetal order passed by the Rent Control Appellate Authority is set aside and confirmed the order and decreetal order of the Rent Controller made in RCOP No.61 of 2000. No order as to costs.