Madras High Court
M/S Bentool Steel Products Private ... vs O.M.A. Mohammed Omar And Another on 19 March, 2001
ORDER
1. This Civil Revision Petition has been filed by the tenant as revision petitioner against the judgment and decree dated 18.8.2000 and made in R.C.No. 1167 of 1996 on the file of the learned VII Judge, Court of Small Causes, Madras setting aside the order and decretal order dated 25.7.1989 in R.C.O.P.No. 1840 of 1995 on the file of the XI Judge, Court of Small Causes, Madras.
2. The facts that are necessary for the disposal of this civil revision petition are as follows: the respondents herein who were the petitioners before the learned Rent Controller are the owners of the building bearing door No. 230, (old No.68) Linghi Chetty Street. Madras. 1. The revision petitioner, who is the respondent before the Rent Controller is the tenant of the premises in the ground floor of the building bearing door No.230 (Old No.68) Linghi Chetty Street. Chennai on a monthly rent of Rs. 2,200 the respondents herein are carrying on business in tubes and seamless pipes in a portion of the ground floor of the above said building. The said shop premises of the respondents herein is adjacent to the premises under the occupation of the revision petitioner. The space under the occupation of the respondents herein is in adequate to store the goods for sale and therefore, they are Keeping in the street in front of the premises under the occupation of the respondents herein. That apart, the respondents herein have also taken two godowns on rent for storing the said materials. The premises under the occupation of the revision petitioner is about 750 sq.ft. and the said premises is required by way of additional accommodation for carrying on the business by the respondents herein, since storing materials in the street in front of the shop of the respondents herein is causing much inconvenience to the public. The requirement by way of additional accommodation is bona fide. The respondents herein also wants to vacate the two godown as payment of rent for the said godown was more than what was got by way of rent from the revision petitioner. The revision petitioner has also let out a portion of the demised premises to one Evertaught Steels Private Limited without the consent of the respondents herein. To the notice issued by the respondents to the revision petitioner to vacate and deliver vacant possession of the demised premises on both the grounds referred to above, the revision petitioner had sent a reply containing untenable allegations. It is on these grounds, the respondents herein as landlords have come forward with the petition for eviction against the revision petitioner.
3. The revision petitioner as respondent before the Rent Control Court resisted the claim made by the respondents herein as landlords on the following grounds: The shop portion in the ground floor and the administrative office portion in the second floor were let out on a monthly rent of Rs. 4,000 to the revision petitioner by the respondents herein and therefore, this petition cannot be filed for eviction of the shop in the ground floor alone splitting the combined tenancy referred to above. It is not known as to how the respondents herein had claimed rent of Rs. 2,200 for the shop portion in the ground floor. The respondents have not given the particulars of the godowns so as to enable this revision petitioner, to put forth his case effectively. The requirement of the demised premises by way of additional accommodation by the respondents herein is not bona fide. The respondents herein had not spread out things in front of the shops under the occupation of the respondents herein. If the revision petitioner is asked to vacate from the demised premises it will cause great hardship and loss. The revision petitioner has not sublet any portion of the demised premises to any third party and therefore, the allegation made in this respect is not correct.
4. The respondents herein demanded higher rent and the revision petitioner was not agreeable to it. It is under the said circumstances, the respondents herein have come forward with this petition for eviction on the ground of additional accommodation and subletting. It is on these grounds, the revision petitioner has sought for dismissal of this petition.
5. After considering the material evidence available on record, learned Rent Controller found that the requirement of the premises under the occupation of the revision petitioner by way of additional accommodation is not bona fide and also found that the subletting was not proved. Accordingly, the petition filed for eviction on both the grounds was dismissed. Aggrieved at the order and decretal order dated 25.7.1996 and made in R.C.O.P. No. 1840 of 1995 on the file of XI Judge, court of Small Causes. Chennai, landlords as appellants have preferred the appeal in R.C.A.No.1167 of 1996 on the file of the learned VII Judge, Court of Small Causes, Madras. After considering the submissions made by both sides and in the light of the material evidence available on record, learned Rent Control Appellate Authority has found that the requirement of the demised premises by way of additional accommodation is bona fide but the hardship to be caused to the revision petitioner in the event of ordering eviction will outweigh the advantage to the landlords. Learned Rent Control Appellate Authority has found that subletting of a portion of the demised premises by the revision petitioner to third party was proved by the respondents herein and therefore, ordered eviction of the revision petitioner from the demised premises on the ground of subletting by setting aside the order and decretal order passed by the Rent Controller . Aggrieved at the Judgment and decree dated 18.8.2000 and made in R.C.A.No. 1167 of 1996 on the file of the VII Judge, Court of Small Causes, Madras, the tenant as revision petitioner has come forward with this Civil Revision Petition.
6. The fact remains that the building bearing door No.230, (Old No.68) Linghi Chetty Street, Madras-1 belongs to the respondents herein and the revision petitioner is in occupation of a shop/godown in the ground floor of the said building as a tenant. It is equally not in dispute that the respondents herein are also carrying on business in tubes and seamless pipes in a shop in the ground floor of the said building and the said shop is situate adjacent to the shop/godown under the occupation of the revision petitioner. This said shop in the ground floor under the occupation of the revision petitioner is required by way of additional accommodation to the respondents herein.
7. Learned counsel appearing for the revision petitioner contends that the premises under the occupation of the revision petitioner in the ground floor and also the premises in the second floor for office use were leased out for a sum of Rs. 4,000 jointly, that the said lease cannot be splitted into two lease by the respondents herein and therefore, the respondents herein cannot maintain this petition for eviction treating the lease of the shop/godown in the ground floor as separate for Rs. 2,200 per month. Per contra, learned counsel appearing for the respondents herein contends that the lease of the premises described in the rent control petition in the ground floor was given separately in the year 1980 and the lease of the premises in the second floor was given separately for a sum of Rs. 900 per month in the year 1981 and that therefore, the respondents herein have every right to file this petition for eviction of the revision petitioner from the premises under his occupation. In support of the said contention, the learned counsel for the respondents herein relied on Ex.P.3. dated 21.2.1984, a letter sent by the revision petitioner to the respondents herein. A perusal of Ex.P.3 would disclose that the revision petitioner had agreed and shown that the rent for the premises under the occupation of the revision petitioner in the ground floor was Rs. 1,300 per month and the rent for the premises used as administrative office in the second floor of the said building was Rs. 900 per month as on 21.2.1984. In the light of the letter sent by the revision petitioner himself to the respondents herein, it cannot be said that the lease of the premises in the ground floor and the second floor was a combined lease. Learned counsel appearing for the revision petitioner fairly concedes that there is no material evidence on the side of the revision petitioner to establish that both the leases referred to in Ex.P.3 was combined as one lease to the acceptance of the respondents herein subsequent to 21.3.1984. The fact of sending rent for both the premises together by one cheque will not help to establish that the leases referred to above are joint lease. In view of the said position, this Court has no reason to differ from the conclusion arrived at by the rent control Appellate authority that the lease of the shop/godown in the ground floor of the said building to the revision petitioner by the respondents is separate and not combined lease with the premises in the second floor of the said building.
8. The respondents herein have come forward with the petition for eviction of the revision petitioner from the demised premises on the ground of additional accommodation since the respondents herein have to keep their materials to be stored in the street in front of the shop in the ground floor of the building for want of space and since the respondents have also taken two godowns for storing materials in George Town, Madras by paying heavy rents than what the respondents herein are able to get from the premises under the occupation of the revision petitioner, the fact of keeping things in the street in front of the shop of the respondents herein, though denied, has not been seriously disputed as seen from the cross examination of P.W.1. O.M.A. Mohammed Omar, the first petitioner in the eviction petition. The occupation of two godowns on rent by the respondents herein has been disputed by the learned counsel appearing for the revision petitioner. To establish that the respondents herein have taken two godowns on rent, learned counsel for the respondents herein relied on Exs.P.5 to P.7. The records relating to this Civil Revision Petition have been sent for by this Court to-day for perusal of the documents Exs.P.5 to P. 7 and other documents inclusive of Ex.P.3 referred to above. A perusal of Exs.P.5(s) discloses that they are the receipts dated 1.1.1995, 1.8.1995 and 1.1.1996 issued for payment of rent for godowns at the rate of Rs. 750 per month by one A.K.Abdul Haleem & Sons and A.K.M. Junaid in favour of P.W.1. O.M.A.Abdul Omar, the firm in which the respondents herein are partners. It would also disclose that the rent of Rs. 750 per month was collected by the landlords of the said premises from the firm O.M.Abdul Haleem & Sons for the godown in the premises bearing door No. 44 (old. No, 2/34 ), Post office street, Goerge Town, Madras. Ex.P6(s) are the receipts issued for payment of rent to godown by K.L.M. Mahathum Beevi to O.M.A. Abdul Haleem & Sons, the partnership firm of the respondents herein for occupying the godown in No.88 of 1989, Linghi Chetty Street. Madras. 1. A perusal of Ex.P.6 (s) would disclose that these receipts were issued on 5.8.95, 5.9.95 and 10.1.96 for Rs. 1,800 and Rs. 1,500 per month. It would otherwise mean that the landlord had issued two receipts every month for collection of rent of Rs. 3,300 for occupation of one godown in door No.88 of 1989 Linghi Chetti Street, Madras-1 with effect from 5.8.95 onwards. Ex.P.7(s) are receipts issued by the Sales Tax Department for payment made towards sales tax for the assessment years 1993-1994 and 1994-1995. The above said receipts bear dates of 22.4.93 and 23.4.94. in Ex.P.7 (s) it has been specifically mentioned that the respondents herein are having two branches of their business one at No.89, Linghi Chetty Street, Madras and another at No.2/34, Post office street. G.I.Madras. These are all documents that have come into existence even prior to the filing of the petition for eviction on 3.8.95. There is no reason to suspect the genuineness of the documents Exs. P.5 (s) to P.7(s). Learned counsel appearing for the revision petitioner, while cross examining P.W.1 before the Rent Control Court, has suggested that the above said two godowns were taken on lease by the respondents herein, not before the filing of the R.C.O.P. petition on 3.8.95 but after the filing of the said petition. The above said suggestion to P.W.1 would lead to conclude that the revision petitioner admitted the fact of taking two godowns on lease by the respondents herein. Exs.P.S(s) to Ex.P.7 (s) would lead to hold that taking of two godowns referred to above on lease by the respondents herein for storing of the goods should have been even prior to the filing of the petition for eviction on the ground of additional accommodation and other ground on 3.8.95. Therefore, the contention raised by the learned counsel for the respondents herein that the respondents herein had taken two godowns on lease by paying rent of Rs. 4,050 per month for storing of goods has to be accepted as rightly done by the learned Rent Control Appellate Authority. Therefore, seeking eviction of the revision petitioner from the demised premises by the respondents herein by way of additional accommodation has to be accepted as a bona fide requirement and the conclusion arrived at by the learned Rent Control Appellate Authority that the requirement of the demised premises by the respondents herein by way of additional accommodation is bona fide, has to be sustained.
9. Learned counsel appearing for the revision petitioner contends that if an order of eviction of the revision petitioner from the demised premises is passed, it will cause hardship and loss to the revision petitioner and such hardship will outweigh the advantages to the respondents herein. Learned counsel appearing for the respondents herein contends contra stating that the hardship chat will be caused to the revision petitioner will not outweigh the advantages to the landlords namely, the respondents herein, if eviction is ordered against the revision petitioner and therefore, contended to set aside the finding of the learned Rent Control Appellate Authority that the hardship to be caused to the revision petitioner will outweigh the advantages to the landlord if eviction is ordered as prayed for in this petition. Ex.P.8 dated 8.12.92. Ex.P.9 dated 16.7.93 and Ex.P.10 dated nil are the assessment orders passed by the Commercial Tax Department with regard to the total and taxable turn over of the business done by the respondents herein in the ground floor of the building from 1991-1992 and 1993-1994. A perusal of Exs.P.8 to P.10 would disclose that there was growth in business as seen from the turn over submitted to the authorities concerned, i.e. Commercial Tax Department for tax purpose. It is because of this growth in business, the respondents herein have also taken two godowns on lease by paying Rs. 4,050 per month for storing the goods in connection with the sale of the same in the ground floor of the demised premises by the respondents herein. The fact also remains that for want of space some of the goods were stored in the street in front of the said shop of the respondents as already pointed out. The above said facts would disclose about the compelling circumstance of the respondents to get possession of the demised premises from the revision petitioner as it measures about 750 sq.ft. Having a godown nearby the shop by the respondents herein will be more convenient for carrying on the business by the respondents herein. That apart, the respondents herein, who are admittedly not having any non-residential building of their own in the city of Madras, need not go and take godowns for rent in different places by paying more rent than what was got as income from the demised premises from the revision petitioner. The revision petitioner who is a tenant of the shop/godown can go and get other shops in the same locality or in some other locality for his business and the fact of having administrative office in the second floor of the said building will have nothing to do with the business carried on by the revision petitioner in the demised premises, in view of the circumstances stated supra, this Court is of the opinion that the hardship to be caused to the revision petitioner will not outweigh the advantages that will be caused to the respondents herein, if eviction is ordered from the demised premises. Learned Rent Control Appellate Authority had not appreciated the evidence and the prevailing circumstances properly to arrive at the conclusion that the hardship that will be caused to the revision petitioner will outweigh the advantages to the respondents herein. If eviction is ordered against the revision petitioner. Therefore, the finding given as above by the Rent Control Appellate Authority cannot be sustained and accordingly, set aside. In view of the fact that the requirement of the demised premises by the respondents herein from the revision petitioner by way of additional accommodation is bona fide and in view of the fact that the hardship to be caused to the revision petitioner will not outweigh the advantages to the respondents herein if an order of eviction of the revision petitioner from the demised premises is passed, the revision petitioner is liable to be evicted from the demise premises on the ground of additional accommodation.
10. The respondents herein have sought for eviction of the revision petitioner from the demised premises on the ground of subletting without the consent and knowledge of the respondents herein to one third party Evertaught Steels Private Ltd. Per Contra, learned counsel for the revision petitioner contends contra stating that there was no subletting as alleged by the respondents herein. The averments in the petition for eviction on the ground of subletting is as follows:
"The petitioners further state that, without their permission, the respondent has sublet the aforesaid tenancy portion in a clandestine manner to Evertaught Steels Private Limited. The petitioners further submit that the respondent has sublet the said tenancy portion to some other concerns also whose names and details the petitioners are unable to ascertain as they are kept as a closely guarded secret. The petitioners submit that the respondent is liable to be evicted on the ground of such unauthorised subletting also.
11. A perusal of the pleadings referred to above would not disclose as to whether the portion of the demised premises was let out to Evertaught Steels Private Limited exclusively and as to what was the rent for which it was sublet without the consent of the respondents herein. It is not also clear as to whether Evertaught Steels Private Limited is in occupation of the demised premises along with the revision petitioner as seen from the above said pleadings. Learned counsel for the respondents, herein has fairly concedes that Evertaught Steels Private Ltd. is in occupation of the demised premises along with the revision petitioner and such fact can be seen from Ex.P.19. dated 29.3.1994, chalan issued by Evertaught Steels Private Ltd., situate, at No.230, Lingni Chetty Street, Madras-1 to G.leck Stone Ltd. at No.32, G.N. Chetty Street. T.Nagar, Madras 17, of course, a perusal of Ex.P.19 would disclose that leck Stones Limited is having its business at door No. 230, Linghi Chetti Street, Madras-1, the premises owned by the respondents herein. The telephone Number and telex number of the Evertaught Steel private Limited were shown as 513304 and 41-7468 BENIL-IM. The above said document, of course, the place of business or Evertaught Steels Private Limited was shown as the premises let out to the revision petitioner herein but it would not disclose that the said Evertaught Steels Private Ltd. is in occupation of the premises let out to the revision petitioner exclusively.
12. In the decision reported in Dipak Banerjee v. Lilbaji Chakraborty, . It has been held by the Honourable Apex Court that in order to prove the tenancy or sub-tenancy, the first ingredient that has to be established is that the alleged sub-tenant is in exclusive possession of, or part of the premises and the tenant retains no control over that part of the premises. It is also held that the second ingredient to prove the sub-tenancy is that the right to occupy the premises must be in lieu of payment of some compensation or rent.
13. In the decision reported in M/S. Delhi Stationers and Printers v. Rejendra Kumar, the Honourable Apex Court was pleased to hold as follows:
"Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as the Act) the tenant IV is liable to be evicted, if he has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession within the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession see Gopal Saran v. Satya Narayana, .
If the instant case is considered in the light of the aforesaid principles laid down by this Court, it cannot be said that the appellant has either sub-let or parted with the possession of a part of the premises in favour of Mahendra Singh who is brother-in-law of the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room marked J in the site plan (Ex.A.1). The mere user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant has transferred the excluse right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendra Singh.
14. In the decision reported in Sree Venkateswara Varukaulai Mills rep. by its partner N.V. Ramaswamy v. Tmt. Vijayalakshi, 1991 (II) M.L.J. 156, learned Single Judge of this Court following the decision of the Hon'ble Apex Court reported in M/S. Delhi Stationers and Printers v. Kaiendra Kumar, has held as follows:
"A tenant can be said to sublet the demised premises to a third party only when the tenant had permitted the third party to occupy the premises and had divested himself completely of the possession of the premises or part thereof. In other words, there must be transfer of the exclusive right to enjoy the demised premises by the tenant in favour of a third party and the said right must be in lieu of payment of some compensation or rent, if a tenant had permitted a third party to use the premises along with him while the tenant retains legal possession, it will not amount to sub-letting. There cannot be a sub-letting unless the lessee parted with legal possession.
15. Another learned Single Judge of this Court in the decision reported in V.D. Murugesan v. V. Raj Mohammed, 1995 (I) M.L.J. 84 relying on the decisions of the Hon'ble Apex Court reported in M/S.Delhi Stationersi's and Printers v. Rajendra Kumar, and Dibak Banerjee v. Lilabati Chakraborthy, has held that there is no evidence that the alleged sub-tenant pays any rent to the respondents and therefore, the theory of subtenancy fails in the light of the reported decisions of Hon'ble Apex Court referred to above. It has also been held by the learned Single Judge relying on the decision reported in Sree Venkateswara VaruKadalal Mills represented by its partner N. V. Ramaswamy v. Tmt. Vijayalakshmy, 1991 (II) MLJ 156, that if a tenant had permitted a third party to use the premises along with him while he retains legal possession, it will not amount to sub-letting and that there cannot be a sub-letting unless the lessee parted with the legal possession.
16. In the case on hand, there is no evidence for parting with legal possession or for payment of rent by Evertaught Steels Private Ltd to the revision petitioner for occupying the demised premises along with the revision petitioner. In view of the said position, the contention raised by the learned counsel for the respondents herein that the revision petitioner has sublet a portion of the demised premises to Evertaught Steels Private Ltd. and therefore, the revision petitioner is liable to be evicted on the ground of subletting, cannot be sustained. Eviction ordered by the learned Rent Control Appellate Authority on the ground of subletting, therefore, cannot be sustained. But in view of the conclusion arrived at by this Court that the requirement of the demised premises by the respondents herein from the revision petitioner by way of additional accommodation is bona fide and in view of the fact that the hardship to be caused to the revision petitioner will not outweigh the advantages to the respondents herein, eviction has to be ordered against the revision petitioner from the demised premises and accordingly the revision petitioner is ordered to be evicted from the demised premises.
17. In fine, the Civil Revision Petition is dismissed and the judgment and decree passed by the learned Rent Control Appellate Authority ordering eviction of the revision petitioner from the demised premises is sustained but on different ground as mentioned above. In the circumstances of the case, both parties are directed to bear their own costs. In view of the disposal of the the Civil Revision Petition. C.M.P. No. 4187 of 2001 is closed as unnecessary.
18. Learned counsel for the revision petitioner submits that the revision petitioner is in occupation of the demised premises for the last 20 years and that therefore, he may be granted six months time for vacating the said premises after getting an alternative accommodation. Learned counsel for the respondents herein are agreeble to grant only three months time for vacating the demised premises on conditions.
19. In view of the submissions made by both sides, this Court holds as follows:
1. The revision petitioner should pay the rent regularly every month without fail on or before 5th or every succeeding month and the arrears of rent, if any, due from the revision petitioner to the respondents herein should be paid on or before 30.4.2001.
2. The revision petitioner should not sublet the demised premises or permit anybody to enter into the said premises during the period granted for vacating the demised premises.
3. The revision petitioner should deliver vacant possession of the demised premises to the respondents herein on or before the date upto which time is granted for vacating the demised premises.
4. The revision petitioner should vacate and deliver vacant possession of the demised premises on or before 19.6.2001.