Madras High Court
Gajendra Sha And Anr. vs M. Govindarajan on 4 April, 1996
Equivalent citations: 1996(1)CTC492, (1996)IMLJ564
ORDER S.M. Abdul Wahab, J.
1. This civil revision petition is against the order dated 19.12.1989 in R.C.A. No. 34 of 1988, on the file of the learned VII Judge, Court of Small Causes, Madras, reversing the order of eviction passed in R.C.O.P. No. 3668 of 1985, dated 11.12.1987, on the file of the IX Judge, Court of Small Causes, Madras.
2. The eviction petition was filed under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (own occupation). The landlord's petition was ordered by the rent controller. However, the appellate authority has dismissed the same. Hence the landlord has filed the civil revision petition in this Court.
3. The learned counsel for the petitioner Mr. N. Krishnamitra urged before me mat the appellate authority ought to have confirmed the order of eviction because it has been proved that the petitioners are carrying on business in a rented building, namely, No. 86, Sembudoss Street, Madras-1 under the name and style of A.A. Sha Electricals, and they purchased the petition premises on 11.4.1985. After the purchase they have also intimated the tenant about their purchase. Accepting the purchase the respondent has been paying the rent. According to the learned counsel for the petitioners, if the petitioners proved that they were carrying on business in a rented premises, and they were not owning any other building, the order of eviction ought to have been confirmed by the appellate authority. The learned counsel for the petitioners cited a decision reported in Emberumanar v. Raghava, 1984 (2) M.L J. 383 and contended that once it was proved that no other building was owned by the petitioners and the business was carried on in a rented premises, and if the want is not on account of any oblique motive, then the bona fide must be presumed. In the said case in para 7 of the judgment, it is stated as follows -
"It is not as if that for the purpose of securing an order for eviction under Section 10(3)(a)(iii) of the Act, the landlord has to establish that the premises where he is carrying on business is insufficient or that the premises in respect of which an order for eviction is sought for is in a better business locality or that he has been threatened by his landlord to vacate and hand over vacant possession of the premises in his occupation as a tenant. There is also no need, according to Section. 10(3)(a)(iii) of the Act, that the landlord should show any expansion in his business before he can seek an order for eviction under that Section. As pointed out earlier, the Rent Controller has to be satisfied that the claim is bona fide". Even though the learned Judge has held that there is no necessity to prove certain other factors, yet the learned Judge has held the rent controller must be satisfied that the claim is bona fide.
4. The learned counsel for the respondent Mr. V.R. Gopalan has submitted that there is no bona fide in the claim of the petitioners. He has stated that the following circumstances which have been proved to exist would definitely negative the circumstances of bona fide. There was no threat from the landlord of the present building, wherein the petitioners are carrying on business. The petitioners want to carry on electrical business. Such business is mainly carried on in Sembudoss street and the said business is flourishing in the said Street only. The accommodation available in the present building is much more than compared to the building in question. Sembudoss Street is also broader and wider compared to Baker Street which is only 15 ft. wide. It is also one way. He contended that in the George Town area each street is having specialised business. Baker Street is occupied mainly by steel trunk box sellers. It is not a street where electrical goods business is carried on. R.W.1 who spoke about all these facts has not been cross-examined.
5. In para. 7 of the order of the appellate authority, these facts have been set out by him. Further in the cross examination P.W.1 has admitted the following facts also:-
That in George Town area each street is known for specific business. The building in question is situate in a narrow lane of 15 ft. Sembudoss Street is mainly meant for electrical goods shops. Bakers Street is meant for the business of glasses and boxes. There is no electrical shop in the Bakers Street. There was no demand by the landlord for vacating the building in Sembudoss Street. All these circumstances go to indicate that there is no necessity for shifting the flourishing electrical goods business from a wider street to a narrow lane. The requirement also must be bona fide. If a reasonable businessman will not normally require the shifting of his flourishing business from an area which is more suitable, to another area or the street which is not suitable for his business, the requirement has to be termed as not bona fide.
6. As regards bona fide, the following decisions are very useful: -
In Madras Dist. Central Co-operative Bank Ltd. v. A. Venkatesh, 1986 (1) M.L.J. 470 Maheswaran, J has held as follows:-
"I am therefore of the view that the Rent Controller will have jurisdiction to go into the question of bona fides of the requirement of the landlord even under Section 10(3)(ii) notwithstanding the feet that the word "require" is not found in Section 10(3)(a)(iii). Otherwise, even a mala fide application by the landlord has to be allowed putting the landlord in possession once it is proved that the landlord is not occupying for purpose of business which he is carrying on a non-residential building in the city, which is his own. Even the learned Judge points out that if the conditions set out in section 10(3)(a)(iii) are found to be satisfied on enquiry by the Rent Controller, then, unless the application filed by the landlord under that section is found to be for any oblique purpose, the Rent Controller cannot reject that application. Even to find out whether the application is for any oblique purpose, one has to find out whether the requirement of the landlord is bona fide".
In Ramdass v. Iswhar Chander, the Supreme Court has held as follows:-
"It is, no doubt, true that the question whether the requirement of the landlords is bona fide or not is essentially one of fact, notwithstanding the circumstance that a finding of fact in that behalf is a secondary and inferential fact drawn from primary facts are not necessarily questions of law. They can be, and quite often are, pure questions of fact. The question as to bona fide requirement is one such".
In Hameedia Hardware Stores v. B. Mohan Lalsawcar, , the Supreme Court has held as follows:-
"Since clause (e) of Section 10(3) of the Act is also applicable to a petition filed under sub-clause (iii) of Section 19(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non-residential building of the category mentioned in Section 10(3)(a)(iii) and to achieve his aim fakes to start money-lending business (for which indeed no specified separate portion in a building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid sub-clause (iii) are fulfilled.. If the requirement of 'claim' being 'bona fide as contained in Section 10(3)(e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide,.. We hold that a landlord seeking eviction of a tenant from a non- residential premises under Section 10(3)(a)(iii) of the Act in order to succeed in his petition should establish that he bona fide requires the premises in addition to proving the other ingredients referred to therein".
In holding so, the Supreme Court has overruled the following decisions of our High Court:-
(1) M/s. Mahalakshmi's case, 1982 (2) M.L.J. 333 (2) M. Abdul Rahman's case, A.I.R. 1984 NOC 281 (Mad.) (3) A. Khan Mohammed's case, 1986 (99) Mad. L.W.966
6. As has been clearly indicated by the Supreme Court, what is necessary is that there should be a bonafide need. But we have found earlier that the business of the petitioners, namely, electrical goods business, is flourishing one in a street which is well known for such business. It is highly impossible to appreciate that such a flourishing business will be shifted to a narrow lane, especially when there is no threat of eviction and the accommodation is much more than what your lord is going to get in the petition building. Hence, in my opinion there is no bonafide in the claim of the petitioners for eviction. Hence the civil revision petition is dismissed. However there will be no order as to costs.