Madras High Court
Mohamed Rehmatullah vs Sankaran And Veeraputhiran on 9 February, 2004
Equivalent citations: (2004)1MLJ690
ORDER S. Sardar Zackria Hussain, J.
1. The unsuccessful tenant before the Rent Control Appellate Authority is the revision petitioner. This Civil Revision Petition is directed against the eviction order dated 28.8.1998 and made in R.C.A.No.7 of 1993 on the file of the Rent Control Appellate Authority (Principal Sub Court), Tenkasi and which was negatived by the Rent Controller.
2. The respondents herein filed R.C.O.P.No.10 of 1987 before the Rent Control(District Munsif) Court, Sankarankoil for eviction under Section 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of wilful default in payment of rent from 1.10.1984 to 28.10.1986 at the rate of Rs.55/- per month and stating that the rent from 1.8.1983 to September 1984 was deposited in the Court. Further, it is stated that to the lawyer notice dated 29.10.1986, the tenant replied on 3.12.1986 and on the date of filing of the petition, the rent for 35 months i.e. from 1.10.1984 to 28.8.1987 to the tune of Rs.1,925/- was due. The petition non-residential premises is also required for own use and occupation of the landlords who are brothers, in that they have been carrying on business in selling betel-nut, coconut and fruits and have been in occupation of the premises bearing door No.74, Swamy Sannathi Street, Sankarankoil Kaspa. Except this, they do not own any other building. In fact, the tenant has let out the premises bearing door No.55 which belongs to him.
3. The petition was resisted in the counter admitting the tenancy and stating that he has been in occupation of the petition shop on a monthly rent of Rs.55/- from 1.8.1976 and also paid advance amount of Rs.1,200/- to Pechiappapillai, the father of the landlords and accordingly Pechiappapillai also had given slip (rpl;il) in writing on 29.7.1976. The tenant has been carrying on business in the name of the Ibrahim Chit Fund (firm). Pechiappapillai received the rent till October, 1979 and made endorsement accordingly in the slip (rpl;il) and on the death of Pechiappapillai, the second respondent herein has made endorsement in the slip(rpl;il) for the receipt of the rent till September, 1980 and thereafter, the first respondent herein made endorsement in the slip(rpl;il) about the receipt of the rent till July, 1983. Thereafter, the first respondent herein was not receiving the rent stating that he would receive the rent in lump-sum, when the tenant approached to receive the rent. Finally, they demanded enhanced rent. The sum of Rs.770/- sent towards the rent for the month of August, 1983 to September, 1984 by money order on 24.9.1984 was refused. The tenant caused lawyer notice on 11.10.1984 to name the bank for deposit of rent and no reply was sent by the first respondent herein. The tenant filed R.C.O.P.No.18 of 1984 and deposited the rent into Court which was received by the first respondent herein. Therefore, he has not committed default much-less wilful default in payment of rent. It is denied that the petition shop is required for own use and occupation by the landlords, viz., the respondents herein. The second respondent herein is working in the post-office. The first respondent herein is doing business in selling coconut and fruits. The petition shop, which is situated in Kazhugumalai Road, is not suitable to carry on such business. The respondents herein also own other buildings in Sankarankoil Kaspa. The Rent Control Original Petition is filed only to get higher rent. The requirement of the petition shop for own use and occupation is without bona fide.
4. Before the Rent Controller, the first respondent herein was examined himself as P.W.1 and marked Exs.P-1 to P-4. The revision petitioner/tenant examined himself as R.W.1 and no document was marked on his side. The learned Rent Controller in consideration of such evidence, recorded findings that the revision petitioner herein has not committed default much-less wilful default in payment of rent and the requirement of petition shop for own use and occupation for the purpose of carrying on business in betel-nut, coconut and fruits by the second respondent herein is without bona fide and in view of such findings, ultimately dismissed the R.C.O.P. The order was challenged in the appeal in R.C.A.No.7 of 1993 and the Rent Control Appellate Authority found that the tenant has committed wilful default in payment of rent as claimed by the landlords, and the requirement of petition shop for own use and occupation by the second respondent herein is bona fide and in view of such findings, allowed the Rent Control Appeal by ordering eviction. The judgment of the learned Rent Control Appellate Authority is under challenge in this Civil Revision Petition.
5. The learned counsel for the revision petitioner/tenant argued that the finding of the learned Rent Control Appellate Authority that the tenant committed wilful default in payment of rent is incorrect. The learned counsel also stated that since the tenant has not taken steps for depositing the rent as contemplated under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, it cannot be said that the tenant has committed wilful default in payment of rent. As regards bona fide requirement, the learned counsel contended that there have been no specific pleading in the Rent Control Original Petition that the petition shop is required for own use and occupation for the purpose of carrying on business by the second respondent herein, who is employed in the postal department and that only in the evidence such a case has been set out. The learned counsel for the revision petitioner has relied on the decision of this Court reported in 2000(1) M.L.J., 364 (Hamid Sultana - vs. - Abdul Latheef), in which, this Court has observed:-
"It is undoubtedly true that in considering whether a tenant was guilty of wilful default or not the circumstances of non-compliance of Section 8 of the Tamil Nadu Buildings(Lease and Rent control) Act will also be one of the relevant circumstances but not the only conclusive circumstance in a case where the landlord refused to receive the rent."
The other decision relied on by the learned counsel for the revision petitioner is 2000-3 Law Weekly 195 (T.V.Jagatrakshagan and others - vs. N.Futaree Bai & others) in which this Court has observed:-
"The words "carrying on business" have been interpreted in so many decisions rendered by this Court, because these words have got certain legal import. "Carrying on" need not mean that the landlord must be already actually and actively carrying on the business. If the matter has already passed the stage of a bare intention or desire, and some steps towards its execution have been taken, it is sufficient for the purpose of the provisions. It is not possible to lay down a hard and fast rule as to what that step should be. It would all depend upon the nature of the business, nature of the effort to be employed upon and other relevant factors, which would enable the carrying on such business. In other words, "carrying on business" may consist of series of steps. It cannot be said that if only all the steps have been taken, the requirement of the section would be satisfied. In other words, even if one step is taken and proved, in my view, the essential requirement of the section is satisfied. But, if the matter is only in the stage of intention or desire and there is no step at all whatever, then it can certainly be said that it would not bring such a case under the said section. Short of any tangible concrete indication of commencement of a business, mere desire to carry on business would not enable the landlord to resort to Section 10(3)(a)(iii)"
6. The learned counsel for the respondents/landlords vehemently contended that the revision petitioner as tenant has committed wilful default in payment of rent from October, 1984 to October, 1986 as found by the learned Rent Control Appellate Authority. As regards the bona fide requirement, the learned counsel argued that though it is not specifically stated in the Rent Control Original Petition that the premises is required for own use and occupation by the second respondent, P.W.1 has very clearly stated in his evidence that the premises is required as such. The fact that merely because the second respondent herein is employed in the postal department, it cannot be said that the respondents are not entitled to evict the revision petitioner from the petition shop on the ground that it is required for own use and occupation by the second respondent for the purpose of carrying on business, in that the second respondent can resign his job and do business. The learned counsel also pointed out that the first respondent herein is carrying on business in the sale of betel-nut, coconut and fruits in the rented shop bearing door No.74, Swamy Sannathi Street, Sankarankoil Kaspa has not been denied.
7. It is the case of the landlords that the revision petitioner/tenant committed default in payment of rent wilfully from 1.10.1984 to 28.8.1987 for 35 months at the rate of Rs.55/- per month, the quantum of which is not challenged. The landlords caused lawyer notice under Ex.A-2 on 29.10.1986 claiming that the revision petitioner committed default wilfully in payment of rent for 24 months from October 1984 to September 1986 at the rate of Rs.55/- per month. The revision petitioner replied under Ex.A-3 on 3.12.1986 that on the death of Pechiappapillai, the father of the landlords, since the landlords refused to receive the rent demanding higher rent, the tenant has deposited the rent in the Court by filing R.C.O.P.No.18 of 1984. Therefore, it is clear that the tenant has not denied that the rent was due from October, 1984 to September, 1986 for 24 months at the rate of Rs.55/- per month as claimed in the notice Ex.A-2. It is the evidence of the first respondent herein as P.W.1 that even after filing of the Rent Control Original Petition, subject matter of this revision, the revision petitioner did not pay the rental amount due from October, 1984 to 28.8.1987. But, P.W.1 has admitted in his evidence that the tenant has been deposited rent in Court in R.C.O.P.No.18 of 1984. It is also in evidence that the rent was sent for the period of August 1983 to September, 1984 by money order and the landlords refused to receive the same. The tenant caused notice requesting the landlords to name the bank for which they did not send reply and also did not take steps to evict the tenant and the tenant has deposited the rent in Court by filing R.C.O.P.No.18 of 1984. It is the evidence of the tenant as R.W.1 that he sent Rs.770/- towards the rent for the months of August, 1983 to September, 1984 on 24.9.1984 by money order and it was refused and then he caused notice on 11.10.1984 to the first respondent herein to name the bank for depositing rent to which no reply was sent and therefore, he deposited the rent by filing R.C.O.P.No.18 of 1984 which petition was also allowed. Therefore, in view of such admission of the first respondent as P.W.1 that since he refused to receive the rent for the months of August, 1983 to September, 1984, and he has also not replied to the notice sent by the tenant to name the bank to deposit the rent in Court, the tentant has rightly deposited the rent by filing R.C.O.P.No.18 of 1984 in which case, it cannot be said that the revision petitioner/tenant has committed default much-less wilful default in payment of rent for the months of October, 1983 to 28.8.1987.
8. As regards the requirement of the petition shop for own use and occupation by the second respondent, it is in evidence that the first respondent alone has been carrying on business in the rented shop bearing door No.74, Swamy Sannathi Street, Sankarankoil. Only the first respondent herein is carrying on business in selling betel-nut, coconut and fruits and that the second respondent herein is employed in the postal department as postal messenger for the past 15 years for whom the petition shop is sought for to carry on business as per the evidence of the first respondent as P.W.1.
9. It is admitted by the revision petitioner in the counter filed in R.C.O.P. that the first respondent herein is carrying on business in the rented premises for the sale of betel-nut, coconut and fruits. It is not the case of the revision petitioner/tenant that besides the petition shop, the respondents herein also own other shop or shops. It is the definite case of the respondents/landlords that they do not own any other shop except the petition shop. P.W.1 has stated in his evidence that the petition shop is required for the purpose of carrying on business in the sale of betel-nut, coconut and fruits. In the petition shop, the tenant is carrying on chit fund business for the past more than 20 years and there have been hotel in the same street. However, the respondents herein seek the petition shop only for the purpose of doing business in the sale of betel-nut, coconut and fruits for which business no preparation is required excepting the money. Admittedly, the first respondent herein is carrying on same business and he has got such experience and it appears that the second respondent is working as a postal messenger in the postal department and as such, raising funds for the purpose of business in the sale of betel-nut, coconut and fruits may not be difficult for the respondents/landlords. As rightly argued for the landlords, the second respondent can resign his job and can carry on business in the sale of betel-nut, coconut and fruits in the petition shop.
10. Further, as per the petition, the petition shop is sought for own use and occupation by the respondents/landlords, in that the first respondent herein is carrying on business in a rented shop bearing door No.74, Swamy Sannathi Street, Sankarankoil and as such, the requirement of the petition shop for own use and occupation cannot be said to be mala fide. Therefore, the eviction ordered by the learned Rent Control Appellate Authority on the ground of own use and occupation is to be confirmed, though it can be said that the respondents/landlords are not entitled for eviction on the ground of wilful default in payment of rent.
11. In the result, this Civil Revision Petition fails and is dismissed. The judgment dated 28.8.1998 made in R.C.A.No.7 of 1993 on the file of the Rent Control Appellate Authority (Principal Sub Court), Tenkasi ordering eviction only on the ground of own use and occupation is confirmed.