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2014 DIGILAW 2853 (MAD)

K. Perumal v. G. Subramania Pillai

2014-08-25

V.M.VELUMANI

body2014
Judgment This Civil Revision Petition is filed as against the order, dated 10.01.2014 passed in R.C.A.No.2 of 2013 on the file of Rent Control Appellate Court (Sub Court, Valliyoor), Tirunelveli District, confirming the order passed in R.C.O.P.No.4 of 2011 dated 13.02.2012 on the file of the Rent Controller (Principal District Munsif) Valliyoor. 2. Heard the learned counsels appearing for the petitioner and the respondent. 3. The revision petitioner herein is the tenant in respect of the petition premises owned by the respondent. The petitioner and the respondent are referred to as tenant and landlord. 4. The landlord is the owner of the petition premises bearing Door No.406A-1, R.S.No.P7/110 in Nagercoil. He started one Tea shop business in the petition premises and the tenant was appointed as a Manager to conduct the said Tea shop business. The landlord is a practising advocate. He developed his professional practice and he has become busiest advocate. He is also a Notary Public. Therefore, he could not manage the Tea shop business. He left the business and handed over the business to the tenant in the month of January 2003. The tenant orally agreed to pay Rs.5,000/- as advance and Rs.750/-per month as rent. The rent was agreed to be paid as per Rent Control Act. 5. The tenant started hotel business in his own name and paid advance amount of Rs.5,000/-in instalments. The tenant agreed to pay the rent before 5th of every month, but became very irregular in paying the rent from 2004. For three years, the tenant did not pay the rent. The maintenance work was carried out in the said building by the landlord. 6. The landlord gradually improved his profession and he is now busiest advocate in Nagercoil. He is also a Notary Public. His wife is a licensed stamp vendor. The landlord is having his office in the District Court campus, which is a rented premises. His wife also require an office space to carry on her business. Under these circumstances, the landlord filed R.C.O.P.No.4 of 2011 for eviction of the tenant on the ground that the petition premises is required for his own use. 7. The tenant denied all the allegations made by the landlord. According to him, he is a tenant for 18 years. He was never a manager of landlord. He is having a residential building in a lane. 7. The tenant denied all the allegations made by the landlord. According to him, he is a tenant for 18 years. He was never a manager of landlord. He is having a residential building in a lane. The hotel business is his only source of income. Originally, the rent was Rs.300/- p.m. and it was gradually increased. Now, the rent is Rs.600/- p.m. He has paid a sum of Rs.25,000/-to the landlord as advance. He has earned reputation for his hotel business. On 02.11.2006, the landlord came to the petition premises and demanded a sum of Rs.50,000/-as additional deposit and enhanced the rent to Rs.1,100/- p.m. The tenant offered to pay the reasonable enhancement, but the landlord refused to receive Rs.600/-p.m. as rent. On 03.11.2006, the landlord came to the petition premises along with three other persons and threatened the tenant with dire consequences unless he vacates the petition premises. 8. The tenant gave a complaint to the Sub Inspector of Police, Kottar Police Station. He also filed O.S.No.618 of 2006 on the file of the First Additional District Munsif Court, Nagercoil and obtained interim injunction. As the landlord refused to accept the rent of Rs.600/- p.m., the tenant filed R.C.O.P.No.1 of 2006 before the District Munsif (Rent Controller), Nagercoil to deposit the rent into the Court. The Rent Controller allowed R.C.O.P.No.1 of 2006 on 07.12.2009. As per the orders of the Court, he is depositing the rent regularly. He denied the allegation that he was irregular in paying rent and stated that there is no default or no arrears. 9. The tenant has stated that the landlord is owner of other buildings in K.P.Road, Door Nos.25, 26, 28, 29 and 30. The tenant was in possession of Door No.26 till 30.07.2009, when the landlord took possession forcibly from him and vacated other tenants also and let out the buildings for higher rent and received huge amounts as advance. 10. The claim of the landlord that he requires the petition premises for own occupation is not bona fide. He is having his office in the District Court campus. Further, the landlord is in occupation of another non-residential building and is carrying on his business in the name and style of SVK Store in D.No.406A. The landlord's wife is not carrying on any business. He is having his office in the District Court campus. Further, the landlord is in occupation of another non-residential building and is carrying on his business in the name and style of SVK Store in D.No.406A. The landlord's wife is not carrying on any business. The petition premises is not suitable for landlord's requirement and he can choose any other place to carry on his business. 11. The learned Rent Controller considered all the pleadings, evidence, Judgments relied on and the arguments of the counsel for the landlord and tenant, allowed the R.C.O.P. holding that the requirements of landlord is bona fide and that the landlord can choose the building for his own occupation and the tenant cannot dictate terms to the landlord to choose some other building. The learned Rent Controller ordered eviction of tenant and granted two months time to vacate the petition premises. 12. Against the said order, the tenant filed R.C.A.No.2 of 2013 before the Sub Judge, Valliyoor. While the said appeal was pending, the landlord took possession forcibly. Therefore, the tenant filed W.P.(MD)No.13046 of 2014. This Court directed the landlord to hand over the possession of the petition premises to the tenant. The landlord did not comply with the said order. Hence, the tenant filed Contempt Petition. Only as per the orders of this Court, the landlord redelivered the petition premises. Before the appellate authority, the tenant filed application in I.A.No.05 of 2014 for filing additional documents. The said application was allowed and documents were marked as Exs.P1 to P4 in appeal and Exs.P6 to P9 in R.C.O.P. 13. The appellate authority considered all the materials on record and arguments of the counsel for landlord and tenant. The learned Judge concluded that the requirement of petition premises for the use of landlord is bona fide and that he is having office in District Court campus which is a rental premises. He also concluded that the landlord's wife is carrying on stamp vending business in the premises belonging to the landlord and hence, rejected the claim of the landlord that the petition premises is required for his wife's business also. For the above reasons, the appellate authority dismissed the appeal. 14. Against the orders allowing the R.C.O.P.No.4 of 2011 and dismissing R.C.A.No.2 of 2013, the tenant has filed the above Civil Revision Petition. 15. For the above reasons, the appellate authority dismissed the appeal. 14. Against the orders allowing the R.C.O.P.No.4 of 2011 and dismissing R.C.A.No.2 of 2013, the tenant has filed the above Civil Revision Petition. 15. The learned counsel for the tenant reiterated all the averments made in the counter in Facts of the Case:-R.C.O.P. and grounds in R.C.A. The learned counsel for the tenant argued that both the Courts below failed to appreciate the facts properly and failed to apply the ratio in the Judgments relied on by the tenant in proper perspective. He has also contended that the appellate authority failed to consider the subsequent events viz., the forcible possession taken by the landlord and redelivery as per orders of this Court. This attitude of the landlord according to the counsel for the tenant would clearly show that the claim of the landlord is not bona fide and he wants some how or other to evict the tenant, so that he can get huge rent and huge amount as advance from the new tenant. The learned counsel for the tenant vehemently contended that the landlord has admitted in the cross examination that he is carrying on business in the name and style of S.V. Stores in his own building. Therefore, the landlord is not entitled to claim any other nonresidential building for his own use. He relied on the following Judgments:- (i) DEVAJI, S. v. K.SUDARSHANA RAO [1994 (1) L.W. 24 (SC)]. (ii) BATA INDIA LTD. v. M.R.MANICKAM [ 2004 (1) CTC 94 ]. (iii) SIRONMANI v. C.D.ANNA SHOLLY [2014 (1) CTC 356]. (iv) PERIYAGOPAL, D. @ GOPAL v. K.VISWANATHAN [ 2006 (1) M.L.J. 663 ]. 16. Per contra, the learned counsel for the landlord argued that the landlord is a senior advocate having much clients and cases. Further, he is a Notary Public. He is having office in the District Court campus which is a rented premises and far away from his residence. The petition premises is very near to his residence. He is having Cardiac ailment and also he is a diabetic patient. The petition premises is suitable to carry on his professional work and that the tenant cannot dictate terms to him to choose some other building owned by him. The learned counsel for the landlord relied on the following Judgments:- (i) RADHA H.JOSHI v. M/s. PIONEER SURGICAL COMPANY [ 2005 (4) M.L.J. 482 ]. The petition premises is suitable to carry on his professional work and that the tenant cannot dictate terms to him to choose some other building owned by him. The learned counsel for the landlord relied on the following Judgments:- (i) RADHA H.JOSHI v. M/s. PIONEER SURGICAL COMPANY [ 2005 (4) M.L.J. 482 ]. (ii) R.SAKUNTHALA v. K.CHOCKALINGAM [2011 (2) MWN (Civil) 465]. (iii) SARALA AHUJA v. UNITED INDIA INSURANCE COMPANY [1998 (III) CTC 679]. (iv) A.S.VENKATARAMAN v. A.V.HARIKRISHNAN NAIDU [ 2013 (3) L.W. 845 ]. 17. The learned counsel for the landlord contended that both the Rent Controller and the appellate authority have considered the facts on law properly and reasoning given by both the authorities are valid and legal and this CRP is devoid on merits and prayed for dismissal of the CRP as devoid of merits. 18. I have carefully considered all the materials on record and the impugned orders of the learned Rent Controller and appellate authority and the arguments of the learned counsel for the tenant and landlord. 19. The learned counsel for the tenant submitted that as the landlord is already in possession of another non-residential building and is carrying on business therein, he is not entitled to invoke Section 10(3)(a)(iii) of the Rent Control Act. For this proposition the learned counsel relied on the Judgment reported in 1994 (1) L.W. 24 (SC) (cited supra), wherein the Apex Court held in paragraph No.4 as follows:- “4. A reading of the above quoted provision requires a critical analysis for its application. The landlord is required to prove his bona fide requirement of the non-residential building to carry on or commence a business. At the relevant time the landlord is not in occupation of another nonresidential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under the Act or otherwise. The object of the Act is to enable the landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or he bona fide proposes to commence. The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the Legislature thereby is clear that a landlord who is in occupation of a nonresidential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom. In Vidya Bai v. Shankerlal ( AIR 1988 A.P. 184 ) a Full Bench considered this question afresh and held that under S.10(3)(a)(iii) a landlord in occupation of a non-residential building is not entitled for carrying on his business or for commencement of business to get back possession of another non-residential building in the occupation of a tenant. The bar under S.10 against securing eviction of the tenant of such nonresidential building is absolute. The suitability, convenience and sufficiency of the nonresidential building already in the occupation of the landlord for carrying on the business of the landlord are not relevant. This Full Bench decision was again reconsidered by another Full Bench in M/s. Vijayalakshmi Printing Press V. Nandula Shanker 1991 (1) A.L.T. 249 . The question therein was whether the landlord in occupation of a tenanted premises where he was threatened of ejectment under the Act is entitled to possession of his non-residential building for his self-occupation. In view of the ratio in Vidya Bai's case it was contended that the landlord is not entitled to the possession since he has already been in possession of the tenanted premises. Rejecting the contention, the Full Bench held that when the threat of eviction looms large at the instance of his landlord, operation of latter clause in S.10(3)(a)(iii) is not a bar to seek eviction of the tenant. It was also held that the ratio in Vidya Bai's case should be confined to the first case namely whether the landlord who was occupying a non-residential building of his own was not entitled to evict a tenant in occupation of another non-residential building. It was also held that the ratio in Vidya Bai's case should be confined to the first case namely whether the landlord who was occupying a non-residential building of his own was not entitled to evict a tenant in occupation of another non-residential building. It was held that it is not incumbent on a landlord to first vacate the non-residential premises in his own occupation as a condition precedent for maintaining an eviction petition in respect of his own non-residential premises in the occupation of his tenant. We agree with the ratio of both the Full Bench decisions in that behalf. Further finding of the first Full Bench in Vidya Bai's case whether the bona fide need of any other member of the family of the landlord, independent of and over and above the need of the landlord, is left open, since that question did not arise in that case and the same question does not arise on the facts of this case.” The Apex Court has held that the landlord can seek his property for non-residential purpose, when he is carrying on his business in a rented premises. Further, the Apex Court held that it is not incumbent on a landlord to first vacate the non-residential premises for maintaining an eviction petition in respect of his own non-residential premises in occupation of his tenant. Hence the ratio in the said Judgment does not advance the case of the tenant. 20. It will be useful to refer the Judgment in J.N.GULAMALI AND OHTERS v. HORAH CASTING COMPANY, MADRAS AND ANOTHER reported in 1978 (1) MLJ 280 , wherein the legal position with regard to applications under Section 10(3)(a)(iii) of the Act was crystalised as follows:- “The legal position would boil down to this; did the landlord seek eviction of the tenant from a non-residential building belonging to him with reference to a business, which he was carrying on in a rented premises? If that be so, Section 10(3)(a)(iii) would apply albeit he was carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act, viz., this was not a case of unreasonable eviction. If that be so, Section 10(3)(a)(iii) would apply albeit he was carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act, viz., this was not a case of unreasonable eviction. It would be rather very reasonable for a landlord to have his business which was of a different nature run in the premises owned by him, rather than suffer the tenancy for all time to come merely because he happened to be a partner in some other business which was being carried on in a portion of a non-residential premises. In the case of Muslim co-sharers, it was not unknown that factional shares were held by them and if the law was not to be interpreted in this manner, then it would affect the right of a landlord, which was certainly not the policy of the Act.” 21. The learned counsel for the tenant relied on the following Judgments:- (i) BATA INDIA LTD. v. M.R.MANICKAM [ 2004 (1) CTC 94 ], wherein this Court in paragraph No.7, has held as follows:- “7. ...... The orders of the Rent Controller and Appellate Authority do not indicate that the authorities have focused on the main ingredients to justify an application for eviction on the ground of owner's occupation. They are as follows: (1) the building should be non-residential in character; (2) the landlord should be carrying on the business on the date of application for eviction; (3) he should not be occupying any building belonging to him; and (4) the claim should be bona fide and not found to be an indirect or false attempt to evict the tenant to obtain more rent or to harass the tenant.” (ii) SIRONMANI v. C.D.ANNA SHOLLY [2014 (1) CTC 356], wherein in paragraph No.15, this Court has held as follows:- “15. The learned counsel for the Revision Petitioner lastly relied on the decision of this Court reported in K.GOPALAN NAIR Vs. V.KAMALAMMAL, 1981 (1) MLJ 40 , to contend that the requirement of the Landlady to occupy the petition mentioned premises need not survive only on the date of filing the Rent Control Original Petition but it should survive continuously till the final adjudication of the case. V.KAMALAMMAL, 1981 (1) MLJ 40 , to contend that the requirement of the Landlady to occupy the petition mentioned premises need not survive only on the date of filing the Rent Control Original Petition but it should survive continuously till the final adjudication of the case. In the present case, it is contended by the Landlady that she pursued her Law Degree at the time of filing the Original Petition and completed it now. It is also contended that she may or may not practice as a Lawyer. Thus, on the date of filing the Original Petition, she has not completed the Law Decree, the Landlady may practice or carry on business of her own. However, if she intends to practice, then it is for the Landlady/respondent to obtain prior permission from the Bar Council of India for carrying on non-residential business in the Petition mentioned premises. Moreover, this Court also cannot forecast as to whether the Landlady/Respondent may practice as a Lawyer or not. In any event, her requirement cannot be said to be mala fide and it is bona fide intention. In fact, the Tenant/Revision Petitioner also contended before the Courts below as also before this Court that the income derived by the Landlady through rent is sufficient for her to lead a decent life. As rightly pointed out by the Courts below, it is not for the Tenant/Revision Petitioner to say whether the income received by the Landlady is sufficient or not. When the intention of the Landlady is to augment her income by judiciously utilising her knowledge and skill, that cannot be said to be a decision to dispossess the tenant from the Petition mentioned premises. Both the Courts below have discussed in detail as to whether the Landlady/Respondent has proved her bona fides and concluded that the Landlady/Respondent has pleaded and proved her requirement. Therefore, such a well considered decision of the Courts below is not required to be interfered with by this Court.” (iii) PERIYAGOPAL, D. @ GOPAL v. K.VISWANATHAN[ 2006 (1) MLJ 663 ] this Court in paragraph No.13, has held as follows:- “13. In this case there is absolutely no reason or purpose mentioned for the landlord's action of shifting and re-shifting his residence from the first floor of the petition mentioned property. In this case there is absolutely no reason or purpose mentioned for the landlord's action of shifting and re-shifting his residence from the first floor of the petition mentioned property. Therefore it becomes an act to hoodwink the opposite party and also the Court which naturally will deprive the element of bona fides in his requirement. The mind of the revision petitioner is filled with the aim of throwing the respondent/tenant out of the tenement, rather than requiring the building for running his tailoring business.” 22. The above said three Judgments relied on by the learned counsel for the tenant with regard to the requirements of landlord isbona fide or not. 23. The learned counsel for the landlord relied on the following Judgments:- (i) A.S.VENKATARAMAN v. A.V.HARIKRISHNAN NAIDU [2013-3-L.W. 845], this Court, in paragraph Nos.14 and 15, has held as follows:- “14. No doubt, an adjacent shop became vacant subsequent to the filing of the present RCOP. According to the landlord, the petition mentioned premises is the first shop in which alone they wanted to start the business. Therefore, the factum of the adjacent shop became vacant during the pendency of the present RCOP, is in no way has any relevance or affect the right of the landlord in seeking eviction against the petitioner/tenant. It is well settled that the landlord is the person who has every right to choose which of the portion or shop is fit for is own occupation either for residential or non residential purpose and the tenant cannot dictate terms on this aspect. Being the owner of the premises and having satisfied his bonafide requirement, his wish and say are final in choosing the premises and the tenant has got no say in this. 15. In a case reported in 2004 (5) CTC 675 , T.SIVAKUMAR Vs. K.PRABHAKARAN, the learned single Judge of this Court has considered similar issue almost on similar set of facts and found that though the landlord or the person for whom the eviction sought for, is not already carrying on business the requirement on the ground of own use and occupation can be ordered, if steps have been taken by the landlord for commencement of the business. At this juncture, it is to be noted that it is not necessary that in all the cases the landlord has to prove or show some materials that he has taken steps to commence the business. Such requirement depends upon the nature of each business. What is required to be seen most importantly is that as to whether the requirement is a bona fide requirement an if such bona fide is proved by material documents the landlord should succeed in his attempt. The bona fide may be proved even by showing the intention and the qualification or eligibility to start the business. When such intention coupled with eligibility is established, then the bona fide of the landlord has to be held proved and mere non preparation for commencement of the business cannot be put against such person in all the cases. In certain business, even the pre-commencement preparation could be done only after occupying the premises. Some would intend to do petty business. Whether pre-commencement preparation is required or not is to be considered and decided based on the facts and circumstances of each case and there cannot be any universal formula for all the cases. Therefore, in this case when the landlord has proved the bona fide with sufficient materials by marking Exs.P3 to P7 and also by examining P.W.2 which evidence having not been rebutted by adducing any contra evidence by the tenant, I find that the landlord is entitled to an order of eviction.” (ii) RADHA H.JOSHI v. M/s. PIONEER SURGICAL COMPANY [ 2005 (4) MLJ 482 ], this Court in paragraph No.25, has held thus:- “25. Further, it is not for the tenant to dictate as to which of the portion the landlord can occupy. It is well settled that the landlord has got every right to choose which of the portion or shop is suitable for own use and occupation either for residential or non-residential purpose. ...” (iii) R.SAKUNTHALA v. K.CHOCKALINGAM [2011 (2) MWN (Civil) 465], this Court in paragraph Nos.26 and 27, has held as follows:- “26. In the case of landlord's own use and occupation of the premises under Section 10(3)(a)(iii) of the Act, it is true that the Court has to consider the relative hardship. In the instant case, the Respondent's/Landlord's daughter is running a clinic only in a portion of her residence, that has been established by supporting materials. In the case of landlord's own use and occupation of the premises under Section 10(3)(a)(iii) of the Act, it is true that the Court has to consider the relative hardship. In the instant case, the Respondent's/Landlord's daughter is running a clinic only in a portion of her residence, that has been established by supporting materials. The petitioners have also not disputed that the clinic run by the daughter of the landlord is comparatively in a narrow street and that too in a portion of her residence. Hence, the petitioners could run her clinic in the R.C.O.P. Premises, as it is a nonresidential premises, where the petitioner/tenant is running her business. 27. In the aforesaid circumstances, as contended by the learned counsel appearing for the respondent/landlord, it is clear that the relative hardship faced by the Respondent/Landlord herein is more comparatively than that of the Petitioner/Tenant and that the Respondent/landlord has established the bona fide requirement, as contemplated under Section 10(3)(a)(iii) of the Act, hence, I am of the view that there is no illegality or material irregularity in the impugned order, so as to warrant any interference of this Court and accordingly, the Civil Revision Petition is liable to be dismissed.” (iv) SARALA AHUJA v. UNITED INDIA INSURANCE COMPANY [1998 (III) CTC 679], this Court in paragraph No.14, has held as follows:- “14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make and endeavour as to how else the landlord could have adjusted himself.” 24. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make and endeavour as to how else the landlord could have adjusted himself.” 24. In all these Judgments, it has been held that the tenant cannot dictate terms to landlord to choose the premises. The landlord can seek any one of his non-residential premises and only when the landlord proves his bona fide, he is entitled to possession of the said non-residential building for his own. 25. In the present case, the landlord is a practising advocate having his office in District Court campus, which is a rented premises and is far away from his residence. The petition premises is very near to his residence. He is also a Notary Pubic and he cannot stay in the office in District Court campus beyond 7.00 p.m. Hence, he will not be in a position to meet his client beyond 7.00 p.m. in his office and also at his residence. Further, he is a Cardiac and diabetic patient as proved by documentary evidence. The Rent Controller as well as the Appellate Authority considered all these facts and pass orders. 26. From the materials on record, it is clear that the landlord has proved his bona fide requirements and the authorities below did not commit any error on fact or law. Therefore there is no reason to interfere with the impugned order. 27. Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. There is no order as to costs. After pronouncing the order, the learned counsel for the petitioner sought time for vacating the premises. The petitioner was directed to file an affidavit of undertaking to vacate the premises within the time limit granted by this Court. The petitioner filed an affidavit of undertaking seeking three months time to vacate the petition premises. The said affidavit of undertaking is taken on file and the petitioner is granted three months time to vacate the petition premises.