Madras High Court
T. Sivakumar vs K. Prabhakaran on 17 November, 2004
Equivalent citations: 2004(5)CTC675
ORDER S. Sardar Zackria Hussain, J.
1. The tenant is the revision petitioner and the revision is filed against the eviction ordered by the learned Rent Controller in R.C.O.P. No. 2093 of 2000 and as confirmed by the learned Rent Control Appellate Authority in R.C.A. No. 410 of 2002 as per the judgment dated 31.12.2002 from the petition non-residential premises on the ground of own use and occupation by the son of the respondent/landlord.
2. The respondent/landlord filed the Rent Control Original Petition seeking eviction of the revision petitioner/tenant from the petition non-residential premises bearing door No. 1, Nagarathinammal Colony, Govindhan Road, West Mambalam, Chennai-33, which is a portion measuring an extent of 100 square feet in the ground floor on the ground of wilful default in payment of rent and on which ground the learned Rent Controller refused to order eviction and which has been confirmed by the learned Rent Control Appellate Authority. The other ground for eviction is that the petition non-residential premises is bona fide required for own use and occupation by landlord's eldest son, P.W.2, who is B.Sc.(Computer Science) Graduate and who stopped his employment after gaining experience and with a view to start a Computer Centre for his livelihood. It is also stated that the landlord already purchased Computers and all other accessories for running Computer Centre. The landlord is not owning any other building of his own except the petition shop. The petition was opposed by the tenant by filing counter.
3. The learned Rent Controller considering the evidence of P.W.1 and his eldest son P.W.2 and Exs. P-1 to P-6 marked on the side of the landlord and also the evidence of the tenant as R.W.1 and Exs. R-1 to R-9 marked on the side of the tenant, accepting the case of the landlord that the requirement of the petition shop is bona fide for own use and occupation by the landlord's son, P.W.2 for the purpose of starting Computer Centre and accordingly ordered eviction on that ground, negativing the case on the ground of wilful default in payment of rent. On appeal filed by the tenant, the learned Rent Control Appellate Authority, appreciating the evidence adduced before the learned Rent Controller and also Ex. P-7, certificate issued to P.W.2 in respect of the Degree in B.Sc.(Computer Science) in the examination held in April, 2000 and also Exs. R-10 and R-11 filed on the side of the tenant before him, confirmed the order of eviction on the ground of own use and occupation by P.W.2, the son of the landlord and so, the tenant has come out with this revision to this Court.
4. Heard the learned counsel appearing for the revision petitioner/tenant and the learned counsel appearing for the respondent/landlord.
5. The learned counsel for the revision petitioner/tenant argued that the requirement of the petition shop by the landlord for his eldest son P.W.2 is without bona fide. The learned counsel further contended that the petition shop being a small portion of about 100 square feet and inasmuch as the other shops in the same building owned by the landlord are of about 200 square feet, the requirement of the petition shop cannot be said to be bona fide. It is also submitted by the learned counsel that the landlord failed to prove that such requirement is bona fide for his son P.W.2 for the purpose of starting Computer Centre. In this regard the learned counsel pointed out that in his letter Ex. R-2 dated 23.7.2000 sent by the landlord, such requirement of the petition shop for the purpose of starting a Computer Centre by P.W.2 is not mentioned and only in the lawyer notice Ex. P-3 dated 4.10.2000, it is so mentioned. Since P.W.2 is not carrying on business, according to the learned counsel, the eviction sought under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act is not maintainable. Further, according to the learned counsel, since the tenant is carrying on provision store in the petition shop, much hardship will be caused to the tenant, if eviction is ordered.
6. The learned counsel for the respondent/landlord vehemently contended that the bona fide requirement of the petition shop by the landlord's eldest son P.W.2 has been clearly established through the evidence of P.Ws.1 and 2 and Exs. P-1 to P-6, inasmuch as the petition shop is required for the purpose of starting the Computer Centre and inasmuch as the landlord has already made preparations by purchasing Computers and all other accessories under Ex. P-2 and the landlord made his intention clearly by causing lawyer notice Ex. P-3 dated 4.10.2000 that the petition shop is required for own use and occupation by his eldest son P.W.2. The landlord also marked Ex. P-7 to evidence the fact that P.W.2 is B.Sc.(Computer Science) Graduate. As per Ex. P-7 marked before the learned Rent Control Appellate Authority, P.W.2 obtained Degree in B.Sc.(Computer Science) in April, 2000 and before filing of the Rent Control Original Petition in November, 2000. As regards the insufficiency of the petition shop for starting Computer Centre by P.W.2 and that there are other shops of more than 200 square feet available in the same building owned by the landlord, the learned counsel for the landlord submitted that it is for the landlord to choose any portion and not for the tenant to dictate terms. Further, the learned counsel also submitted that inasmuch as the landlord has made all preparations for starting the Computer Centre in the petition shop, the eviction ordered by the learned Rent Controller on the ground of own use and occupation by P.W.2 and as confirmed by the learned Rent Control Appellate Authority is to be confirmed.
7. It is not in dispute that the landlord is the owner of the building, viz., the petition shop of about 100 square feet which is occupied by the revision petitioner as tenant under him. The landlord also owns adjacent shops of about 200 square feet. Since, according to the landlord, the petition shop measuring to an extent of 100 square feet is sufficient for starting Computer Centre by his eldest son P.W.2, the eviction of the tenant is sought only from the petition shop. It is well settled that the tenant cannot dictate the landlord with regard to the requirement of the landlord for own use and occupation. The landlord as P.W.1 has clearly stated in his evidence that his son P.W.2 is going to assemble Computer and also teach computer course. P.W.2 also stated in his evidence that the petition premises is required to give coaching in Computer course and to assemble the Computer, in which case, the petition shop of about 100 square feet, according to the landlord, is more than sufficient. The landlord also gave advance towards purchase of Computer spare parts as seen in Ex. P-2.
8. It is well settled 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. The steps have already been taken as seen from Ex. P-2 by the landlord for purchasing Computer accessories for which purpose advance has been paid as per the said receipt. P.W.2 has already qualified in B.Sc.(Computer Science) and as such, the requirement of the petition shop for own use and occupation by P.W.2 cannot be said to be mala fide.
9. The landlord though in the letter Ex. R-2 dated 23.7.2000 did not inform the tenant about the requirement of the petition shop for own use and occupation by his son P.W.2, in the lawyer notice Ex. P-3 dated 4.10.2000 he has informed that the petition shop is required for own use and occupation by P.W.2. The tenant did not reply the notice.
10. It is also not the case of the tenant that besides the petition shop any other shop owned by the landlord is vacant and the same has not been occupied. It appears, the tenant also purchased non-residential portion bearing door No. 24/14, Govindan Road, West Mambalam, Chennai-33 as per sale deed dated 28.10.2002.
11. Further as per Section 10(5)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, if the landlord who has obtained possession of the building in pursuance of an order under sub-Section (3-A) of the Act does not himself occupy within one month of the date of obtaining possession or having so occupied it, vacates it without reasonable cause within six months of such date, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building. Therefore, in case, the landlord is not occupying the petition shop as contemplated under Section 10(5)(a) of the Act, it is always open to the tenant/revision petitioner to seek restoration of possession of the premises.
12. Therefore, considering such clinching evidence let in on the side of the landlord, the eviction ordered by the learned Rent Controller on the ground of own use and occupation by P.W.2 for the purpose of starting Computer Centre and as rightly confirmed by the learned Rent Control Appellate Authority, does not call for any interference.
13. In the result, this Civil Revision Petition is dismissed with costs. The judgment dated 31.12.2002 and made in R.C.A. No. 410 of 2002 on the file of the Rent Control Appellate Authority (VIII Judge, Court of Small Causes), Madras, is confirmed.