Madras High Court
Jayaram Metal Works Represented By Its ... vs G. Jaganathan And Anr. on 4 November, 1997
Equivalent citations: (1998)2MLJ261
ORDER K. Govindarjan, J.
1. The tenant who suffered an order of eviction before the learned Appellate Authority has filed the above revision.
2. The landlord/respondents filed O.P.No. 532 of 1986 on the file of the learned Rent Controller. XV Small Cause Court, Madras for eviction of the petitioner/ tenant under Section 10(3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. According to the landlord, the respondents father is carrying on business under the name and style of Renuka Advertising Agencies at No. 31, Balfour Road, Kellys, Madras, (hereinafter called the said premise) and he is not having any other premises of his own or that of the minors. The petitioner/tenant contested that petition by filing a counter wherein he denied the fact of carrying on the business under the name and style of Renuka Advertising Agencies by the respondent's father at the address mentioned above and also denied that the respondent's father is not having any other premises of his won or that of the minors. Relying on the notice issued by the respondents dated 9.1.1986 the tenant has contended that the fact regarding the carrying on the business under the name and style of Renuka Advertising Agencies by the respondent's father was not stated in the said notice itself would show that he is not carrying on the said business as stated in the petition. According to the tenant the landlords do not require the premises in question for their own occupation but they are keen in increasing the monthly rent.
3. The Rent Controller after appreciating the oral and documentary evidence rejected the petition for eviction. The landlords filed R.C.A.No. 686 of 1989 on the file of the Appellate Authority, VII Judge, Court of Small Cause, Madras, Before the Appellate Authority, the landlords filed a petition in M.P.No. 494 of 1990 to receive the additional documents. The same was allowed by order dated 6.12.1990. The Appellate Authority in his order dated 4.2.1992 allowed the Appeal holding that the requirement of the premises for the own occupation of the respondent's father is bona fide. Aggrieved against the same, the tenant has filed the above revision.
4. The respondents herein filed a petition for eviction on the ground that their father and been carrying on business under the name and style of Renuka Advertising Agencies in the address mentioned above and he was not carrying on business in a premises of his own or that of his minors. The respondents require the said premises to carry on the said business. The learned Counsel appearing for the tenant has submitted that the respondents have not proved that their father is carrying on the business under the name and style of Renuka Advertising Agencies in the said premises. Even assuming that they are carrying on the said business in the said premises, the same has not been proved to be a rented premises. On these two grounds the learned Counsel has submitted that the petition filed the respondents cannot be sustained.
5. The learned Counsel has also submitted that in the petition it is not stated that the premises in question is a rented premises. According to him, even P.W.1, has not stated that he has been carrying on the said business in a rented premised. On that basis the learned Counsel has submitted that since the landlords have not pleaded and proved that they are carrying on the business in a rented premised the petition under Section 10(3)(a)(iii) cannot be maintained. Doing a business in a rented premises is not a pre requisite to file a petition under Section 10(3) (a) (iii) of the Act. Section 10(3) (a) (iii) of the Act is as follows:
In case it is any other non-residential building which is used for the purpose of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is own;
Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered:
Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this clause
(i) in case he has obtained possession of a residential building for possession of another residential building of his own:
(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.
If the landlord or any member of his family is not carrying on the business in premises in the city, town, or village concerned of his own, a landlord can maintain the petition. To invoke Section 10(3)(a)(iii) of the Act it is not necessary that the Landlord has to carry on business in a rented premises. It is not the case of the tenant that the said premises is owned by the landlords/ Respondents. But on the other hand, the respondents in para 6 of the petition have specifically stated that they are not carrying on the business in a premises of their own or that of the minors. Since the respondent's or their father are not carrying on the business in a premises of their own, the submission of the learned Counsel that unless the landlords plead and prove that they are carrying on business in a rented premises, the petition is not maintainable, cannot be sustained.
6. The learned Counsel has further submitted that the respondents have not proved that the father of the respondents had been carrying on the business at the premises bearing Door No. 31, Balfour Road, Kellys, Madras. To prove that the father of the respondents had been carrying on the business at the premises mentioned above, they filed Exs.P-6 and P-7, the contract with Indian Express and the Hindu. The said documents were given by Thiru P. Govindaraju, the father of the respondents/landlords, as proprietor of Renuka Advertising Agencies. In these Exhibits, the address was mentioned as Plot No. 15, Venkatesa Nagar Extension I, Virugambakkam, Madras-92 from which place, according to the respondents, shifted the business to-the said premises, They relate to the period 1982-83 The respondents filed Ex.P.l serious to show that Renuka Advertising Agencies has been carried on in the said premises. According to the learned Counsel for the respondents, Ex.P-1 series is the continuation of the said contract. Though in the said documents, the name, of the said Govindaraju is not mentioned, the name of the business namely, Renuka Advertising Agencies has been mentioned with address of the said premises. A combined perusal of Exs.P-1 series and P-6 and P-7 it would be clear that the father of the respondents had been carrying on the said business in the said premises., This has been explained by P. W. 1 in his evidence. Even in cross examination P. W. 1 has denied the suggestion that the said documents were created for the purpose of the case. Even Ex.P-2, P-3 and P-4, rental receipts were produced to prove that the said Govindaraju is the tenant for the premises bearing Door No. 31, Balfour Road, Kellys, Madras-10. According to the learned Counsel appearing for the petitioner, in the said receipts the business name has not been mentioned, and it is also stated in the said receipts that the building is being used for residential purpose. The learned Counsel appearing for the respondents has submitted that since the landlords has used the printed form it has been mentioned as residential purpose. But it has been explained in the evidence of P.W.1 that in the said premises he is also residing besides doing business in the shop. According to P.W.1 the rent was paid at Rs. 1,000, but there is no cross examination with respect in Exs. P-2, P-3 and P-4 series, inspite of the fact that P.W.1 in the chief examination has specifically stated that he is doing the business in the said premises, and the receipts were issued for that purpose. The landlords examined P. W.2 who has spoken to the fact that the said Govindaraju is his tenant and he has been doing the business in the name of Renuka Advertising Agencies in the said premises. Even in the cross examination he denied the suggestion that the said Govindaraju has not been carrying on the business in the said premises. There was no cross examination by the tenant with respect to Exs.P-1, to P-3 series.
7. Even in the income tax statements which were marked as Exs. R-2, R-4, R-8 and R-10, the income from Renuka Advertising Agencies has been mentioned. Those were relating to the small H.U.F. of the said P.Govindaraju the father of the respondents, In Ex. R-4 it is specifically stated that Renuka Advertising Agency is the own business of small H.U.F. of the said P.Govindaraju. Similarly it has been stated in Exs. R-8 and R-10 also. It is not the case of the tenant that the said business has been carried on by the said P.Govindaraju in the premises of his own or of the respondents. The respondents have marked Exs.P-3, P-4, P-8 and P-9 to show that they have been carrying on the business at No. 31, Balfour Road, Kellys, Madras. The abovesaid fact will clearly prove that the said P.Govindaraju was doing the business in the name and style of Renuka Advertising Agencies. Apart from Exs.P-1 to P-3 series, they have examined P. W.2 the owner of the premises, No. 31, Balfour Road, Kellys, Madras-10, who has categorically deposed that the said P.Govindaraju as a tenant has been carrying on the business in the said premises. Accepting the oral and documentary evidence, the appellate authority has rightly come to the conclusion that the said P.Govindaraju has been carrying on the business at No. 31, Balfour Road, Kellys Madras under the name and style of Renuka Advertising Agencies, To prove the contra, the tenant examined only R.W.1 who is the employee of the tenant and he has stated in the cross examination that"
Though it cannot be taken as an admission, he is not in a position to specifically assert the case of the tenant as stated in the counter. In the absence of any contra evidence. The Appellate Authority is correct in accepting the case of the landlords that their father had been carrvine on the business at 31 Balfour Road. Kellys, Madras which is not of their own.
8. According to the learned Counsel appearing for the tenant, the lower court has not given any reason to accept the additional documents as prayed for by the respondents. On the basis of the decision in the case of Central Bank of India v. Gokal Chand the learned Counsel appearing for the petitioner has submitted that though he has not challenged the order passed in M.P. No. 494 of 1990 dated 6.12.1990, the petitioner is entitled to challenge the same along with the other grounds raised in this revision. In the above said decision, the Apex Court has held as follows:
All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties, The legislature could not have intended that the parties would be harassed with endless expense and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding.
9. According to him, the order passed by the lower court allowing to file the additional documents without assigning any reason cannot be sustained. The learned Counsel has also relied on the decision in Karunakaran v. Punnuswamy Achari wherein Varadarajan, J., as he then was has held as follows:
I am of the opinion that no progress can be made in the trial court if civil revision petitions are admitted against the ruling given by the trial court on the admissibility or otherwise of a particular piece of evidence, as the trial court may have innumerable occasions to allow or disallow any particular piece of evidence during the trial of a suit or other proceeding. The mistake if any committed by the trial court in the admissibility or otherwise of a particular piece of evidence can be recited by moving the appellate court in an appeal against the order or decree which may be ultimately passed by the Trial Court after taking into consideration or declining, to take into consideration the particular piece of evidence.
The learned Counsel has also relied on the decision in the case of A.G. Punyakoti v. M. Meera Bai wherein, M.N. Chandurkar, C.J., as he then was has held as follows:
The power of permitting additional evidence to be produced at the stage of appeal must be exercised by the appellate authority judiciously, and before additional evidence is given, the appellate authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. The provision for additional evidence as part of the further enquiry permitted to be made by the appellate authority does not imply that a party has a right to have additional evidence adduced before the appellate authority about any valid justification. If any documents are to be produced by way of additional evidence only if the appellate authority is satisfied that it is necessary to make a further enquiry and that there is good justification for not producing those documents before the Rent Controller.
If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled, to an opportunity to rebut the additional evidence. Wherever additional evidence is given by one of the parties before the appellate authority, the appellate authority is duty bound to give an opportunity to the other party to produce such additional evidence as may be necessary to rebut the additional evidence. This could be done either before the appellate authority himself or before the Rent Controller who could be directed by the appellate authority to admit or record the necessary evidence.
10. Even without relying on the additional documents, I have come to the conclusion that the respondents/ landlords have proved that their father had been carrying on the business under the name and style of Renuka Advertising Agencies at No. 31, Balfour Road, Kellys, Madras, which is not of their own. So, I am not deciding the correctness of the order of the Appellate Authority dated 6.12.1990 admitting the additional documents.
11. The Rent Controller has not even properly considered and the documents marked by the respondents i. e., Exs.R-2 to R-11 which themselves show that the father of the respondents herein had been carrying on the business under the name and style of Renuka Advertising Agencies. The Rent Controller has rejected the case of the respondents only on the basis of Ex.R-12 saying that in the said notice it is only stated that the premises is required for the business of the respondents and the respondents have not been carrying on any business, the requirements mentioned in that petition cannot be sustained. The Rent Controller without considering to abovesaid documents has erroneously come to the conclusion that the respondents have not proved that the business under the name and style of Renuka Advertising Agencies was being carried on is the said premises. On the other hand the Appellate Authority has properly considered all the abovesaid documents and come to the conclusion that the said P.Govindaraju has been carrying on the business under the name and style of Renuka Advertising Agencies at No. 31, Balfour Road, Kellys, Madras.
12. The learned Counsel appearing for the petitioner has further submitted that even if the landlords have proved the other ingredients referred to in the section they have to establish that they bona fide require the premises. According to the learned Counsel, in the present case, the landlords have not proved the same. In support of his submissions, the learned Counsel has relied on the decision in the case of Satyanarayana v. D.V.V.G.S. Raghavaiah and in the case Hameedia Hardware Stores v. B. Mohan Lal Sowocar . As held earlier, the respondents have pleaded and proved in the trial regarding the conditions which are necessary to be fulfilled for the purposes of getting evidence under Section 10(3) (a) (iii) of the Act. Now it has to be found out whether the requirement of the premises is a bona fide one. The tenant has stated in the counter that the petition for eviction was filed only to get more rent and that has not been denied by P. W. 1, But the same has not been established by the tenant. As found earlier, the respondents have proved that their father has been running the business in a rented premises.
13. In the decision reported in Satyanarayana v. D.V.V.G.S. Raghavaiah . It has been held as Follows:
The conditions which are necessary to be fulfilled for the purpose of getting an order of eviction under sub-clause (iii) are:
(1) The building is a non-residential building:
(2) The landlord is not occupying a non-residential building in the city, town or village concerned, either belonging to him or to the possession of which he is entitled under the Act or otherwise.
(3) Either he requires the building for the purpose of business which he is carrying on or he bona fide proposes to commence a business.
14. In the decision reported in Hameedia Hardware Stores v. B. Mohan Lal Sowocar , the Apex Court has held as follows:
We are of the view that by merely proving that the premises in question is a non residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his won, the landlord cannot in the context in which Section 10(3)(a), (iii) appears to get a tenant evicted. He must show in view of clause (e) of Section 10(3) that his claim is bona fide. The word 'claim' means 'a demand for something as due' or 'to seek or ask for on the ground of right' etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserved to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserved to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bond fides of the landlord's requirement or need. The word 'claim (in clause (e) of Section 10(3) of the Act should therefore be construed as the requirement of the landlord or his deservedness. "Deserve" means 'to have a rightful claim' or' a just claim. Since clause (e) of Section 10(3) of the Act is also applicable to a petition file under sub-clause (iii) of Section 10(3) (a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will also try to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3) (a) (iii) of the Act.
15. In the present case the respondents have prayed that their father has been running the business from 1981, which can be seen from Exs.P-5 to P-7. They have also proved that the said business has been carried on in a rented premises. It cannot be said that only for the purpose of evicting the tenant, the respondents have come forward with the plea that they have been carrying on the business in a premises which is not of their own. Though the petition was filed in 1986, the oral and documentary evidence will show that the father of the respondents had started the business in 1981 itself in a rented premises. Moreover, the tenant has not proved his contention that the petition for eviction is filed only to get more rent. The Appellate Authority has come to the conclusion that the requirement of the respondents is bona fide one. So it cannot be said that the respondents have come forward with the petition for eviction with oblique motive to get rid of the tenant. Since the requirement of the respondents is bona fide the decision cited by the learned Counsel for the petitioner will not in any way support the case of the tenant.
16. In view of the above discussion, the order of eviction passed by the Appellate Authority has to be sustained. Accordingly, the revision is dismissed. No costs, Consequently, C.M.P.No. 11288 of 1992 is closed.
17. After delivering the judgment the learned Counsel appearing for the petitioner has requested time to vacate the premises. The learned Counsel appearing for the respondents has accepted to grant three months time. Accordingly, the petitioner is granted three months time from this date, on condition that he has to file an affidavit of undertaking stating that he would vacate and handover vacant possession of the premises with the said period without dragging the lanlords to court for taking possession. Such an affidavit should be filed on or before 17.11.1997. If such an affidavit is not filed within the said period, the Order of eviction will come into operation with immediate effect.