Madras High Court
S.Gopal vs T.V.Paramasivam on 27 February, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.02.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRP.(NPD).Nos.3992 & 675 of 2007 and M.P.No.1 of 2007 1.S.Gopal .. Petitioner in CRP.No.3992 of 2007 2.S.Baskar .. Petitioner in CRP.No.675 of 2007 Vs. T.V.Paramasivam .. Respondent in both the above CRPs Prayer in CRP(NPD).3992/2007:-This revision has been preferred under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act, 18 /60 as amended by 1/80, against the judgment dated 26.11.2007 in RCA.No.252 of 2006 passed by the VII Judge, Court of Small Causes, Chennai, reversing the Judgment in RCOP.No.1900 of 2003, dated 7.6.2005, on the file XVI Judge, Court of Small Causes, Chennai. Prayer in CRP(NPD).No.675 of 2007:- This revision has been preferred under Section 25 of the Tamil Nadu Building (Lease and Rent Control) Act, 18/60 as amended by the 1/80, against the judgment dated 24.01.2007 in RCA.No.1382 of 2005 on the file of the VIII Judge, Court of Small Causes,Chennai, which had arisen out of the judgment in RCOP.No.1899 of 2003 on the file of the XV Judge, Court of Small Causes, Chennai, dated 04.10.2005. For Petitioner : Mr.T.S.Rajamohar, Advocate, (in both the above CRPs) For Respondent : Mr.L.J.Krishnamurthy, Advocate (in both the above CRPs) COMMON ORDER
CRP(NPD).No.3992 of 2007 is arisen out of the judgment in RCA.No.252 of 2006 on the file of the VII Judge, Court of Small Causes, Chennai, under which the order passed in RCOP.No.1900 of 2003 by the XVI Judge, Court of Small Causes, Chennai, was challenged. RCOP.No.1900 of 2003 on the file of the XVI Judge, Court of Small Causes, Chennai, was filed by the landlord/respondent herein under Section 10(2)(1) and 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, (hereinafter referred to as 'the Act'). The learned Rent Controller has dismissed the RCOP, against which the landlord preferred an appeal in RCA.No.252 of 2006 before the Rent Control Appellate Authority (VII Judge, Court of Small Cause, Chennai). The learned Rent Control Appellate Authority while confirming the findings of the learned Rent Controller in respect of the dismissal of RCOP under Section 10(2)(1) of the Act has allowed the appeal under Section 10(3)(a)(iii) of the Act, which necessitated the tenant to approach this Court by way of CRP.(NPD).No.3992 of 2007.
2.Under CRP(NPD).No.675 of 2007 the judgment in RCA.No.1382 of 2005 on the file of the VIII Judge, Court of Small Causes, Chennai, is challenged. RCA.No.1382 of 2005 had arisen out the order in RCOP.No.1899 of 2003 on the file of the XV Judge, Court of Small Causes, Chennai, which was filed under Section 10(2)(1) and 10(3)(a)(iii) of the Act. The learned Rent Controller has allowed the RCOP under both the counts and passed an order of eviction giving two months time to vacate and handover vacant possession to the landlord. The appeal RCA.No.1382 of 2005 preferred against the order passed in RCOP.No.1899 of 2003, was dismissed the by the learned Rent Control Appellate Authority, thereby the orders of the learned Rent Controller was confirmed. Aggrieved by the findings of the learned Rent Control Appellate Authority, the tenant in RCOP.No.1899 of 2003 has preferred CRP.No.679 of 2007.
3.The landlord has not preferred any revision against the findings of the learned Rent Controller in RCOP.No.1900 of 2003, which was confirmed by the learned Rent Control Appellate Authority in RCA.No.252 of 2006 in respect of the order of eviction under Section 10(2)(1) of the Act. The tenants in both the RCOPs have been facing an order of eviction under Section 10(3)(a)(iii) of the Act. The landlord had filed the RCOP.No.1900 of 2003 and RCOP.No.1899 of 2003 under Section 10(3)(a)(iii) for owner's occupation. According to the landlord, he intends to start a pathological laboratory in the petition scheduled premises wherein six shops are situate.
4.It is contended by the learned counsel appearing for the revision petitioner in both the CRPs that the landlord is in possession of shop No.3 and shop No.4 and also shop No.6 and hence the other shops are not required for running the pathological lab and even in Ex.P.1-notice issued by the landlord there was no mention about the requirement of the petition scheduled building for the purpose of owner's occupation. Only in Ex.P.4 - notice dated 1.8.2003, the landlord has claimed the petition scheduled building and has also revealed about the intention to run the pathological lab and dispensary in the petition scheduled building after evicting all the tenants. The mere fact that there is no mention about the requirement of the landlord for owner's occupation in Ex.P.1 alone is not a ground for rejecting the claim of the landlord. Only after issuing Ex.P.4 notice the landlord has filed both the CRPs to show his bone fide intention. The landlord has also filed two other RCOPs.1835/03 in respect of shop No.4 and RCOP.No.1910 of 2003 in respect of shop No.2 for eviction and got order of eviction against the tenants in shop Nos.4 & 2. So already the landlord has obtained an order of eviction in respect of Shop Nos. 3, 4 and 6. It is the case of the landlord that the tenant in Shop No.1 has also agreed to vacate the shop as soon as the other tenants in the other shops are vacated.
5.The learned counsel for the revision petitioner relying on 2001(5) SCC 705 (Deena Nath Vs. Pooran Lal) would contend that if the landlord had alternative shop in the same building he cannot evict the other tenants on the ground of owner's occupation. The said appeal had arisen before the Honourable Apex Court under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961, wherein the ratio decidendi laid down is that if the landlord requires the building bone fide then he must show that he is in actual need of the building and on the mere whim and fanciful he cannot ask for the eviction against the tenant. The short facts of the said case is that :
"The appellant landlord filed a suit for eviction against the respondent tenant on the ground inter alia of bona fide requirement under Section 12(1)(a) and (f) of the M.P. Accommodation Control Act, 1961. The rented premises consisted of one shop room out of a total of five, located on the ground floor of a building owned by the appellant. The landlord's case was that he needed the suit premises in order to set up a shop selling clothes and tailoring materials for his son. The claim of the landlord was resisted by the respondent on the ground that the requirement of the landlord was not bonafide because one shop room had been vacated by another tenant even before the filing of the eviction petition and during the pendency of the case another room also fell vacant and a shop room had been allotted in a local market in the name of the son of the landlord for whom the landlord claimed to need the suit premises. Even after admitting that there are two rooms lying vacant and another shop has been allotted to his son in the local market, the landlord contended that the vacant shops were not suitable of his son's purpose i.e, to run a tailoring shop and shop for selling cloths.
The trial Court decreed the suit for eviction and the first appeal was also dismissed. Further before the High Court, the tenant succeeded on the ground that the landlord has made a misstatement in the plaint to the effect that the shop room occupied by one of the tenant was not vacant and that the other room vacated was also in the landlord's possession and there was no explanation as to why the allotted shop room was not suitable for the son. Ultimately, the High Court held that the landlord bonafide requirement was not justifiable. Before the Honourable Apex Court it was contended on behalf of the appellant/landlord that the High Court ought not to have interfered with the concurrent findings of fact reached by the lower courts and the High Court had travelled beyond the jurisdiction vested in it under Section 100 CPC. Dismissing the appeal, the Honourable Apex Court has held as follows:-
The legislature in enacting Section 12(1)(f) of the M.P. Accommodation Control Act, 1961, has taken ample care to a avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid a mere whim or desire. The 'bonafide requirement' must by in praesenti and must be manifested in actual need which would evidence the court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in clause (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The Judgment/order of the Court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafine requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If It is found that the Court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 CPC."
6.Per contra, the learned counsel appearing for the respondent relying on 2004(4) LW 721 (D.Dineshchand Vs. Smt.Sarojini), would contend that the mere fact that there are other portions lying vacant is not a ground for the tenant to dictate the landlord as to which portion he can occupy. The learned counsel would contend that to run a pathological lab the landlord require all the shop portions in the petition scheduled premises and to show his bonafide he had already filed RCOP.No.1836 of 2003, RCOP.No.1835 of 2003 and got the order of eviction in respect of two shop buildings viz., Shop Nos.6 and 4 and that the tenant in Shop No.1 had agreed to vacate and handover possession as soon as the other tenants are vacated and shop No.3 is already lying vacant and that he had also initiated proceedings under the present RCOP.Nos.1910 of 2003 and RCOP.No.1894 of 2003 against the tenants in Shop Nos.2 & 5 for eviction. So that he can accommodate the Pathological lap in the petition scheduled premises. The relevant observation in 2004(4) LW 721 (D.Dineshchand Vs. Smt.Sarojini) for the purpose of these revisions runs as follows:-
"It is well settled that the tenant cannot dictate the landlord as to which portion he can occupy. The fact that the uncle of the tenant herein has agreed to vacate from the portion of the premises occupied by him and not pressed the CRP.No.270 of 2002 field by him also will not stand in the way of seeking eviction of the premises, subject matter of this revision, in view of the fact that for the purpose of carrying on business in plastic industry by the landlady's son P.W.1, naturally both portions will be required."
7.Relying on 2007(2) CTC 797 (B.Kishore, Proprietor, 'B Kishore Auto Spares", Plot No.1687, Door No.26 (New No.54), 10th Avenue, Ashok Nagar, Chennai-63 Vs. D.Maragathavalli, Plot No.1687, Door No.26, (New No.54), 10th Avenue, Ashok Nagar, Chennai-83), the learned counsel for the respondent would contend that carrying on business means preparations to commence business and not necessary that landlord or member of family for whom premises is sought should be actually carrying on business on the date of filing of eviction petition. The landlord in the above cited case had filed the eviction petitioner under Section 10(3)(a)(iii) of the Act on the ground for requirement for the business of her son. The said eviction petition was resisted by the responded/tenant on the ground that the landlady's son is employed in a Car Show Room and that it is incorrect to state that he is unemployed and wants to start Automobile business. It was further contended by the tenant that another shop is remaining vacant and that landlady has not occupied the same and if she requires more occupation for her son to run his business, the said unoccupied portion can be utilized. The principle laiddown in the said dictum relevant for the purpose of deciding this CRPs are as follows:-
"Bonafide requirement for starting the Automobile business has been established by facts and evidence. Courts below have arrived at concurrent finding that the requirement of the landlady for the business of her son is bonafide and that concurrent finding cannot be interfered with. Exercising revisional jurisdiction under Section 25 of the Act, it is not permissible for the High Court to reappreciate the evidence and to arrive at a different finding unless the concurrent findings are perverse and illegal. There is nothing to show that the concurrent findings suffer from perversity or illegality calling for interference."
8.The learned counsel appearing for the respondent would state that if it is shown by the landlord had taken steps to carry on his business then that is enough for him to get the order for eviction of the tenant on the ground of own use and occupation. For this proposition of law, the learned counsel relied on 2004(5) CTC 675 (T.Sivakumar Vs. K.Prabhakaran). The relevant observation in the said dictum runs as follows:-
"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."
9.It is in evidence in the case on hand that the landlord had already taken steps for evicting other tenants under RCOP.No.1836/2003, and RCOP.No.1835/2003 and obtained the order of eviction against those tenants, and has now come forward with RCOP.No.1899 of 2003 and RCOP.No.1900 of 2003 for eviction of the other two tenants in shop Nos.5 & 2. The landlord has already produced Ex.P.5 an Ex.P.6 - certificates, in RCOP.No.1899/2003 and Ex.P.1 to Ex.P.3 in RCOP.No.1900 of 2003 to show that the landlord is professionally qualified to run pathological lab.
10.As far as CRP.(NPD).675 of 2007 is concerned both the Courts below have concurrently held that the landlord is entitled for an order of eviction under Section 10(3)(a)(iii) of the Act. There is no material on record to show that the finding of the learned Rent Control Appellate Authority is perverse or against evidence. Under such circumstances, while exercising the powers of revision this Court cannot interfere with the concurrent findings of the Courts below.
11.As far as CRP.(NPD).NO.3992 of 2007 is concerned, the learned Rent Control Appellate Authority after going through the materials placed on record has come to the conclusion that the landlord is requiring the petition scheduled premisses bonafide for running his pathological lab in the petition schedule premisses, has ordered eviction under Section 10(3)(a)(iii) of the Act while confirming the findings of the learned Rent Controller that there is no willful default for eviction under Section 10(2)(i) of the Act. Under such circumstances, I do not find any reason to interfere with the findings of the Rent Control Appellate Authority in RCA.No.252 of 2006 on the file of the VII Judge, Court of Small Causes, Chennai, to warrant any interference from this Court.
12.In fine, the revision are dismissed confirming the findings of the learned Rent Control Appellate Authority in RCA.No.252 of 2006 on the file of the VII Judge, Court of Small Causes, Chennai, and in RCA.No.1382 of 2005 on the file of the VIII Judge, Court of Small Causes, Chennai. Time for vacating the premisses three months from today. No costs. The learned counsel for the revision petitioners would represent that the tenants are entitled to get back their advance. If the tenants have paid any advance, nodoubt they are entitled to get back the same from the landlord on the date of vacating and handing over the vacant possession to the landlord. Connected M.P.No.1 of 2007 is closed.
27.02.2008 A.C.ARUMUGAPERUMAL ADITYAN, J.
Index : Yes/No Web : Yes/No To, 1.The VII Judge, Court of Small Causes, Chennai. 2.The VIII Judge, Court of Small Causes, Chennai. ssv CRP.(NPD).Nos.3992 & 675 of 2007 27.02.2008