Madras High Court
B. Kishore, Proprietor, "B Kishore Auto ... vs D. Maragathavalli on 9 March, 2007
Equivalent citations: 2007(2)CTC797, (2007)4MLJ251
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. Challenge in this Revision is the concurrent findings of Rent Control Authorities, ordering eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act on the ground of requirement for the business of Landlady's Son.
2.1.This Revision arises on the following facts:- Respondent is the owner of Petition mentioned property - Door No. 26, (New No. 54), Ashok Nagar, Chennai - 600 083. Landlady's Son - Robinson is an unemployed Diploma Holder in Automobile Engineering. Eviction Petition was filed seeking the premises for the business of said Robinson. Landlady contended that her Husband retired from Madras Refinery Limited (MRL) and that he has good experience in repairing works and that Landlady's Son has taken necessary steps to start a business at the petition mentioned premises.
2.2. Tenant resisted the Eviction Petition contending that Landlady's Son is employed in a Car Show Room and therefore, it is incorrect to state that he is unemployed and wants to start Automobile business. Tenant has further contended that Landlady is demanding exorbitant rent and refused to receive the monthly rent and the Tenant was forced to send the rent through Money Order. Tenant raised the plea of hardship that he is carrying on his business for more than 20 years and he is having numerous customers in and around the area and if he is evicted, he will be put to great hardship and inconvenience.
3. In consideration of evidence, the Rent Control Authorities held the Landlady's requirement for business of her Son is bonafide and requirements of Section 10(3)(a)(iii) of the Act are proved and ordered eviction.
4. Challenging the concurrent findings, Learned Counsel for Revision Petitioner / Tenant has submitted that to prove bonafide, Landlady has not adduced any evidence and the steps taken in commencing of Automobile Business. It was further submitted that evidence of P.Ws.1 and 2 alone is not sufficient to test the bonafide. Submitting that another shop is remaining vacant and that Landlady has not occupied the same, Learned Counsel for the Revision Petitioner urged that requirement of Landlady lacks bonafide.
5. Submitting that another portion is too small to run Automobile Spare Parts and Servicing Shop, Learned Counsel for the Respondent / Landlady has submitted that for running the Automobile Shop, a minimum extent of 1000 sq.ft is required. Learned Counsel for Landlady has further submitted that for starting Automobile Spare Parts Shop, elaborate preparation is not required and the Courts below have satisfied as to the bonafide requirement of the premises and that concurrent finding cannot be interfered with.
6. For ordering eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (for short "the Act"), the Landlord should satisfy the following conditions:
i. the premises in question must be non-residential;
ii. the Member for whom the premises is required must be carrying on business; iii.the member for whom the premises is required should not be occupying for the purpose of such business, a non-residential building of his / her own; iv. the requirement of the Landlord for the business of the member of the family should be bonafide.
7. First objection of the Tenant is that Landlady or P.W.2 cannot be said to be not occupying any non-residential of his / her own. Placing emphasis on the words "the landlord is not occupying for purpose of a business he is carrying on", Learned Counsel for the Tenant has contended that another shop portion is vacant and the same can be used for the purpose of Automobile business which Landlady intends to carry on. It was further submitted that non-occupation of another portion remaining vacant would show lack of bonafide. In 1983, Revision Petitioner became a Tenant of four rooms and at the time of filing earlier R.C.O.P. No. 2074 of 2000, Revision Petitioner has vacated one room and presently in occupation of three rooms only. Earlier, R.C.O.P. No. 2074 of 2000 was filed on the same grounds. At that time, Revision Petitioner / Tenant has vacated one shop. That shop is stated to be vacant. Learned Counsel for Respondent / Landlady has submitted that the portion remaining vacant is very small and not sufficient to start Automobile business.
8. So far as the other non-residential portion is concerned, which is vacant, the Act does not say that if Landlord owns more than one non-residential building, he would be disentitled to an order of eviction. It is naturally open to the Landlady to choose which building she would require for occupation of business of P.W.2. Contention of Learned Counsel for the Revision Petitioner that the Landlady has other portion vacant and the Landlady's Son could occupy anyone of those premises cannot be countenanced both factually and legally. According to Landlady, the other portion is insufficient to run Automobile business. Even assuming that other premises is available, choice is left to the Landlady as to which non-residential premises she should occupy and the Tenant cannot dictate terms in this matter. Adverting to this aspect, the Appellate Authority has observed even the Tenant is running Automobile business and his business requires three rooms, it would be unjust on his part to contend that in one single room, P.W.2 can commence his business.
9. To prove the first requirement that the Member of the family for whom the premises is required "must be carrying on business", Landlady has produced Exs.P.1 and P.2 to show that her Son P.W.2 is qualified in Automobile Engineering. P.W.1 has stated that her Son - P.W.2 is unemployed and that her Husband is also retired from MRL and that out of his terminal benefits, P.W.2 is anxious to start Automobile business in the Petition Premises. Landlady's Son was examined as P.W.2, who was also deposed that he was at present without any employment and he wishes to start an Automobile business. P.W.2 has denied the version of the Tenant that he is working in an Automobile Show Room elsewhere. In his evidence, P.W.2 has stated that he has applied for Licence to run the business and that the entire family is dependent upon him for his livelihood since his Father has already retired. Referring to the evidence of P.W.2 that he has applied for Licence for starting the business, the Courts below satisfied as to the steps taken for starting business.
10. Courts have consistently held that though Landlord or Member for whom building is required is not actually carrying on business, even if one step is proved, the requirement is satisfied. On the following averments and evidence adduced, bonafide requirement of Landlady is proved:
P.W.2 is qualified in Automobile Engineering;
P.W.2's Father is retired from MRL and that he has retirement benefits; P.W.2 - Son of Landlady could utilise that capital to commence the business. P.W.2 has applied licence for running Automobile business.
On the above facts and evidence, the Courts below have recorded bonafide requirement and the same cannot be interfered with.
11. Learned Counsel for Revision Petitioner has contended that the Courts below should have rejected the plea of requirement of P.W.2 as not bonafide since P.W.2 had obtained Diploma in Automobile Engineering as early as 1984 and the present petition has been filed in 2002 nearly eight years after completing his course and that P.W.2 is gainfully employed elsewhere. As noticed earlier, in his cross-examination, P.W.2 has denied being employed elsewhere.
12. Assailing the evidence of P.Ws.1 and 2, Learned Counsel for the Revision Petitioner / Tenant has contended that the version of Landlady making preparations for the commencement of Automobile business lacks bonafide. It was submitted that no copy of licence had been produced before the Court to substantiate their plea that Landlady's Son is "carrying on business". It was further submitted that heavy burden lies upon Landlady to place before the Courts below that P.W.2 had taken all necessary steps for the commencement of the business. It is settled that "Carrying on business" need not necessarily mean that he has vigorously begun the business. "Carrying on business" mainly consists of several steps and even if one step is proved, the requirement is satisfied. In various decisions, it has been held that bonafide preparation for commencement of business is sufficient. In the decision reported in V.V.Ramakrishnan v. T.R. Anantanarayanan 1984 (1) M.L.J.NOC 4, it was held that though Section 10(3)(a)(iii) of the Act would insist that the landlord must actually carrying on the business, it is too late in the day to contend that there must be an actual business run on the date of the petition, that bonafide preparation to commence a business would be enough. Though Section 10(3)(a)(iii) of the Act would insist that the Landlord must actually be carrying on business, it cannot be contended that there must be actual business run on the date of Petition.
13. It is well settled that to invoke Section 10(3)(a)(iii) of the Act, it is enough that the Landlord makes bonafide preparations to commence business and it is not necessary that Landlord / Member of the family should be actually carrying on business on the date of the Petition. Some of the decisions for this proposition are:- Arumugam Chettiar v. Jayaraman 1995 (2) M.L.J. 282; Thirunavukkarasu v. Vasantha Ammal 1997 (2) L.W. 607; Velmurugan Engineers Proprietor Ravendran v. Kaliappan 1998 (2) M.L.J. 472; Sivanraj v. Essakki Muthu and Jagathrakshagan and Ors. v. N. Futaree Bai and Ors. 1993 (3) M.L.J. 303.
14. Petitioner's Husband has retired from MRL and he has retiral benefits. Onbehalf of Revision petitioner, it was contended that the Landlady has not adduced any evidence showing the means of P.W.2 to start business. Petitioner / Landlady need not produce currencies before the Court to prove the means for commencement of the business. In these days of encouragement of entrepreneurs, it would not be difficulty for availing loans from Financial Institutions and Banks. That apart, P.W.2 can very well utilise the experience of his retired Father and seeking his assistance. Contention that evidence is wanting as to how P.W.2 would mobilise the fund is unsustainable.
15. Learned Counsel for the Revision Petitioner / Tenant has raised the plea of lack of bonafide by pointing out filing of earlier Eviction Petition. No doubt, earlier, Respondent has filed R.C.O.P. No. 2074 of 2000 before the Rent Controller for eviction on the same grounds. On behalf of Landlady, it is stated that earlier, Tenant has promised to vacate the premises. It is stated that without vacating the premises, the Revision Petitioner had filed O.S. No. 5298 of 2000 on the file of XVI Judge, City Civil Court, Chennai for Permanent Injunction against the Landlady. At that stage, Landlady was constrained to file R.C.O.P. No. 2074 of 2000. There were also various other proceedings between the Landlady and the Tenant. Pursuant to proposal for settlement, the Tenant has requested 11 months time for finding alternative site and to vacate the demised premises for the proposed business of Landlady's Son. On that settlement, Landlady has withdrawn Eviction Petition filed against the Tenant. The contention that there is lack of bonafide cannot be countenanced.
16. Learned Counsel for Revision Petitioner has contended that if the Tenant is evicted, he will be subjected to great hardship. In the decision reported in Venkiduswami Pillai v. Swaminatha Rao 1996 (2) L.W. 752, it was held that reason that Tenant will have to be ousted from the shop is not a ground for refusing Landlord's claim. Serious hardship caused to the Landlord is a ground for ordering eviction.
17. The plea of relative hardship raised by the Tenant has no force. In the Counter filed by the Landlady, it is stated that Revision Petitioner / Tenant owns three storeyed building worth about 30 crores in the same locality and he owns three other buildings in the Chennai City. When Tenant owns other buildings, he cannot raise the plea of hardship being caused.
18. 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.
19. For the foregoing reasons, the Impugned Judgment dated 24.01.2007 of the Rent Control Appellate Authority (VIII Judge, Small Causes Court, Chennai) in R.C.A. No. 1570 of 2003 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P. No. 1 of 2007 is closed. Three months time from the date of this order is granted to the Revision Petitioner / Tenant to vacate and hand over vacant possession to the Respondent / Landlady on condition that the Revision Petitioner should file an Affidavit of undertaking within one week from today.