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2015 DIGILAW 2471 (MAD)

N. Gangabai v. D. Jeyachandran

2015-07-10

M.DURAISWAMY

body2015
ORDER The landlady has filed the above Civil Revision Petition challenging the order passed in R.C.A.No.230 of 2014 on the file of IX Judge, Court of Small Causes, Chennai reversing the order passed by the Rent Controller, XIV Judge, Court of Small Causes, Chennai, made in R.C.O.P.No.2208 of 2012. 2. The petitioner filed the Original Petition in R.C.O.P.No.2208 of 2012 for eviction on the ground of willful default and own use and occupation. In the Original Petition, the landlady has stated that the respondent-tenant has not paid the rent from August 2011. 3. According to the petitioner, the monthly rent is Rs.3,500/-. With regard to the own use and occupation, the petitioner-landlady has stated that her son, viz., N.Suresh, who is a practicing Advocate at Chennai, has decided to have his own office in the petition premises. Therefore, the petition premises is required for own use and occupation. Further, she has stated that her son is now having his office in a rented premises. 4. In the counter filed by the respondent, he has stated that he has not committed any default in paying the monthly rent to the petitioner-landlady and also stated that the petition premises measures an extent of only 80 sq.ft., which is not enough to run the Advocate office. Therefore, according to the respondent, the requirement of the petitioner is not bona fide. 5. Before the Rent Controller, on the side of the petitioner-landlady, she was examined as P.W.1 and 5 documents Exs. P1 to P5 were marked and on the side of the respondent, he was examined as R.W.1 and 8 documents Ex.R.1 and Ex.R.8 were marked. 6. The Rent Controller, after taking into consideration the oral and documentary evidences of both parties, ordered eviction on the ground of own use and occupation under section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act and dismissed the petition on the ground of willful default. 7. Aggrieved over the order of eviction granted on the ground of own use and occupation, the tenant preferred an appeal in R.C.A.No.230 of 2014 on the file of IX Judge, Court of Small causes, Chennai. 8. 7. Aggrieved over the order of eviction granted on the ground of own use and occupation, the tenant preferred an appeal in R.C.A.No.230 of 2014 on the file of IX Judge, Court of Small causes, Chennai. 8. The Rent Control Appellate Authority reversed the order of eviction passed by the Rent Controller and allowed the appeal finding that the profession of an Advocate constitutes a learned “profession”, which cannot be termed as “business” within the definition of the Tamil Nadu Buildings (Lease and Rent Control) Act. The order of the Rent Controller was reversed by the Rent Control Appellate Authority solely on this ground. 9. Aggrieved over the judgment passed by the Rent Control Appellate Authority in R.C.A.No.230 of 2014, the landlady has filed the above Civil Revision Petition. 10. Heard Mr. P. Valliappan, learned counsel appearing for the petitioner and Mr. V. Bhiman, learned counsel appearing for the respondent. 11. Mr. P. Valliappan, learned counsel appearing for the petitioner submitted that the judgment of the Rent Control Appellate Authority is liable to be set aside on the ground that the Hon'ble Supreme Court as well this court has held that “Advocate profession” should be construed as a “business” and therefore, the Advocate profession comes within the definition of the Tamil Nadu Buildings (Lease and Rent Control) Act. In support of his contention, the learned counsel relied upon the following judgments :- (i) AIR 1979 SC 1132 (S.Mohan Lal v. R.Kondiah) wherein, the Hon'ble Supreme court held as follows:- “ 4. .... The scheme of the Act, is to prevent unreasonable eviction of tenants by landlords and to provide for eviction on specified grounds. The Act is of general application and its protection not confined to any classes of tenants not is the right to evict under the Act limited to any class of landlords. There is no reason why a landlord who is a member of the legal or medical profession and who requires the premises for carrying on the practice of his profession should be wholly debarred from obtaining possession of the premises. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the result if the expression 'business' is given a narrow meaning which the appellant wants us to give to that expression. It is impossible to discover any reason for so making a discrimination against the liberal professions. But, that would be the result if the expression 'business' is given a narrow meaning which the appellant wants us to give to that expression. It would indeed be anomalous to hold that all the provisions of the Act including Section 4 which provides for the determination of fair rent and section 10(1) which bars the eviction of tenants apply to nonresidential buildings owned by an Advocate but not section 10(3)(a)(iii) only. In our view the expression business occurring in section 10(3)(a) (iii) is used in a wide sense so as to include the practice of the profession of an advocate.” (ii) 1993 LW 851 ( (St.Josephs Armory Gunamithe by its Partner, Mr.Jacob v. Comm. Venkidu, Secretary, Communist Party of India (Marxist), Coimbatore), wherein this court held as follows:- “8. In the instant case, the landlord is a political party and its business is to carry on activities to progress, to advance and to improve its cause in the political sphere, and it must have an office and it is only to serve this requirement of the landlord, the eviction was sought for under S.10(3)(a)(iii) of the Act. In view of the above position, it must be held that the requirement of the landlord definitely fits within S.10(3)(a)(iii) of the Act and there is no warrant for discountenancing the case of the landlord on the ground urged by the learned counsel for the petitioner. Accordingly, the revision fails and the same is dismissed. But, there will be no order as to costs.” (iii) 1997(3) LW 269 (National Studios represented by its partners and others v. Prema Kalyanasundaram), wherein this court held as follows:- 29. Rent Controller, rejected the contention on the basis of the decision reported in (1979) 2 SCC 616 (1980) 93 L.W. 18 S.N. (S.Mohan Lal v. R.Kondia) wherein their Lordships said that the practice carried on by an advocate in relation to his profession can be said to be 'business'. The said decision was followed by the Supreme Court in a recent decision reported in 1995 Supp.(3) SCC 190 (Dr.Jess Raphael v. K.L.Begina Joseph (Mrs), wherein, the question raised was, whether a doctor's profession is 'business'. The said decision was followed by the Supreme Court in a recent decision reported in 1995 Supp.(3) SCC 190 (Dr.Jess Raphael v. K.L.Begina Joseph (Mrs), wherein, the question raised was, whether a doctor's profession is 'business'. While considering the same, their Lordships accepted the meaning of 'business' as stated in Black's Law Dictionary, 6th Edn., at page 198 wherein 'business' was defined as under:- “Business:-Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood.” In view of the two decisions of the Supreme Court (referred to supra), learned Senior Counsel for the revision petitioners was not serious in his contention that advocate's profession is not 'business'. Therefore, the contention raised on that ground cannot stand. 12. Countering the submissions made by the learned counsel appearing for the petitioner, Mr.V.Bhiman, learned counsel appearing for the respondent submitted that the respondent-tenant is only on the relative hardship caused to him by the petitioner. The learned Counsel submitted that the respondent had ransacked the premises and tired to dispossess the respondent from the property. It is also brought to the notice of this court that the respondent had lodged a police complaint as against the petitioner and 25 others. 13. The learned Counsel appearing for the petitioner submitted that the petitioner-landlady has filed a Criminal Original petition to quash the First Information Report. 14. Since the criminal complaint lodged by the respondent as against the landlady and 25 others has been challenged in the Criminal Original Petition, I am not giving any observation with regard to the said criminal complaint. 15. So far as the relative hardship is concerned, the said provision is available to the respondent-tenant, only, if the petitioner-landlady seeks eviction on the ground of additional accommodation. The proviso of section 10(3)(e) of the Tamil Nadu Buildings (Lease and Rent Control) Act speaks about the hardship caused to the tenant. Therefore, in the present case, which has been filed by the landlady for eviction on the ground of own use and occupation, the respondent-tenant cannot raise the plea of relative hardship. 16. Learned counsel for the respondent was not serious in his contention that advocate's profession is not a 'business'. 17. Therefore, in the present case, which has been filed by the landlady for eviction on the ground of own use and occupation, the respondent-tenant cannot raise the plea of relative hardship. 16. Learned counsel for the respondent was not serious in his contention that advocate's profession is not a 'business'. 17. In the judgment reported in AIR 1979 SC 1132 (cited supra) the Hon'ble Supreme court held that the expression of business occurring in section 10(3)(a) (iii) is used in a wide sense so as to include the practice of the profession of an advocate. The ratio laid down the Hon'ble Apex court squarely applies to the facts and circumstances of the present case. Following the ratios laid down in the above referred judgments, I am of the considered view that the judgment and decree passed by the Rent Control Appellate Authority in R.C.A.NO.230 of 2014 are liable to be set aside. Accordingly, the same are set aside. The order passed in R.C.O.P.No.2208 of 2012 on the file of XIV Judge, Court of Small Causes Chennai is restored. The Civil Revision petition stands allowed. No costs.