Madras High Court
D.Dineshchand vs Smt.Sarojini on 19 April, 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19/04/2004
Coram
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Civil Revision Petition (NPD)No.271 of 2002
D.Dineshchand. ... Petitioner.
-Vs-
Smt.Sarojini. ... Respondent.
Civil Revision Petition filed under Section 25 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 against the judgment and decree
dated 6.2.2002 and made in R.C.A.No.1200 of 1996 on the file of the Rent
Control Appellate Authority (VIII Judge, Small Causes Court), Madras,
reversing the order and decretal order dated 12.7.1996 passed in
R.C.O.P.No.1396 of 1994 on the file of the Rent Controller ( XIV Judge, Small
Causes Court), Madras.
!For petitioner : Mr.M.K.Kannan.
^For respondent : Mr.P.B.Balaji.
:O R D E R
The revision petitioner/tenant has filed the Civil Revision Petition challenging the eviction ordered by the learned Rent Control Appellate Authority on the ground of own use and occupation by the landlady's son by reversing the order of the learned Rent Controller, who refused to order eviction on that ground.
2. The respondent/landlady has filed the Rent Control Original Petition seeking eviction of the revision petitioner/tenant from the petition non-residential premises, viz., entire ground floor portion in premises bearing door No.13, Peddu Naicken Street, Kondithope, Madras-79 for own use and occupation for the purpose of carrying on business. In the petition it is stated that the revision petitioner/tenant carrying on business in provisional store on a monthly rent of Rs.425 /-. On the death of landlady's husband, the entire family depends upon the income of the landlady's son G.Raveender, who started business in the name and style of "Sona Plastic Industries" in the rented premises at No.1, Kannayya Naidu Street, Kondithope, Madras-79 and paying Rs.2,300/- per month towards rent. Therefore, the respondent/ landlady requires the petition non-residential premises bona fide for own use and occupation by her son G.Raveender to carry on business in the name and style of "Sona Plastic Industries", which is now carried on in the rented premises.
3. The petition was opposed in the counter that the requirement of the petition non-residential premises is not bona fide. It is further urged in the counter that the petition premises is situated in a commercial zone and therefore, the landlady cannot seek the premises for the purpose of running plastic industry by her son and for which industry licence is to be obtained under Section 287 of the City Municipal Corporation Act and which in turn is to be regulated by the M.M. D.A. Act and since the revision petitioner/tenant is in occupation of the portion measuring 120 square feet, it may not be suitable to run the industry as sought for by the landlady for her son. The revision petitioner/tenant's uncle is in occupation of the adjoining portion as tenant and having failed in her attempt to vacate him, the landlady has filed this Rent Control Original Petition, subject matter of this Civil Revision Petition.
4. Before the Rent Controller, the landlady's son G.Raveender was examined as P.W.1 and the tenant examined himself as R.W.1. Considering the oral evidence adduced on either side and Exs.P-1 to P-6 marked on the side of the landlady, the learned Rent Controller finding that the requirement of the petition non-residential premises for own use and occupation for the purpose of carrying on business by the landlady's son G.Raveender is not bona fide and inasmuch as P.W.1 is residing in the first floor portion and the petition non-residential premises is in the ground floor, the petition as filed under Section 10(3 )(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1 960 (herein after referred to as "the Act") is not maintainable and in that the landlady could have sought eviction on the ground of additional accommodation under Section 10(3)(c) of the Act and ultimately dismissed the Rent Control Original Petition. The order was challenged in the appeal and the learned Rent Control Appellate Authority in reversing the order of the learned Rent Controller, found that the requirement of the petition non-residential premises for the purpose of carrying on business by the landlady's son P.W.1 G.Raveender to run plastic industry is bona fide and so ordered eviction on that ground by allowing the appeal, as per common order passed in R.C.A.No.1200 of 1996 along with R.C.A.No.1199 of 1996 filed against R.C.O.P.No.2776 of 1993. It appears R.C.O.P.No.2776 of 1993 was filed seeking eviction on the same ground against the uncle of the revision petitioner/ tenant herein who occupied another portion of the same premises bearing door No.13, Peddu Naicken Street, Kondithope, Chennai-79. Against the said common order the tenant and the uncle of the tenant have filed C.R.P.Nos.271 and 270 of 2002 respectively. It appears, the C.R. P.No.270 of 2002 filed by the uncle of the tenant herein was dismissed as not pressed on 16.3.2004.
5. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlady.
6. The learned counsel for the revision petitioner/tenant mainly argued that inasmuch as the R.C.O.P.No.2776 of 1993 filed against the uncle of the revision petitioner/tenant for eviction on the ground of own use and occupation for the purpose of carrying on business by the landlady's son P.W.1, G.Raveender, was dismissed and appeal R.C.A. NO.1199 of 1996 was allowed ordering eviction and inasmuch as the Civil Revision Petition filed by the uncle of the tenant in C.R.P.No.270 of 2002 was dismissed as not pressed, the respondent/landlady cannot seek the portion of the petition premises subject matter of this Civil Revision for the same purpose. The learned counsel for the revision petitioner/tenant has also advanced argument that P.W.1, the landlady's son has not taken steps to obtain necessary licence to carry on plastic industry in the petition non-residential premises for which a licence is required under Section 287 of the City Municipal corporation Act and the petition premises being in the commercial zone, licence may not be granted by the authorities.
7. The learned counsel for the respondent/landlady argued that both portions, viz., the petition non-residential premises, subject matter of this revision as well the premises, subject matter of R.C.O.P. No.2776 of 1993 filed against the uncle of the tenant herein and who has withdrawn the C.R.P.No.270 of 2002 filed against the eviction ordered in R.C.A.No.1199 of 1996, are required for the purpose of business in running Sona Plastic Industries by the landlady's son P.W.1. The eviction sought in respect of the petition premises, subject matter of this revision against the tenant herein is very much proper, in that though C.R.P.No.270 of 2002 filed by the uncle of the tenant herein was dismissed as not pressed, and he has not yet vacated from the said premises since three months time was granted to vacate from that premises. As regards the petition premises herein, the learned counsel for the respondent/landlady contended that as per Ex.P-1 series it is proved by the landlady that P.W.1 is actually carrying on business in the name and style of Sona Plastic Industries in the premises bearing door No.1, Kanniah Street, Chebbau and as such, the requirement of the petition premises for own use and occupation by the landlady's son P.W.1 is very much bona fide and in that view, the eviction ordered by the learned Rent Control Appellate Authority need not be disturbed.
8. The learned counsel for the respondent/landlady has relied on the following decisions:-
(1) Sarla Ahuja vs. United India Insurance Company Ltd., reported in 1999-1 Law Weekly 698 in which the Apex Court ruled that the tenant cannot dictate terms to the landlord which portion he can choose.
(2) V.T.Asokan and another vs. - Bowjiya Begam reported in 1998-3 Law Weekly 661, in which this Court has held:-
"The question is whether the recovery of possession of the adjacent property by the respondent from another tenant would militate against her case of bona fide requirement for own occupation. The respondent had filed two separate petitions for eviction of the tenants in respect of adjacent properties which clearly show that she required both the portions for the business purpose of her husband, who had gained experience in a particular line of trade and who wanted to commence independent business in own premises. It cannot be said that the respondent was lacking in bona fides in taking simultaneous eviction proceedings in respect of portions of building for own occupation, particularly when the portions were adjacent. The Appellate Authority has rightly found that the requirement of the respondent for own occupation for commencing a business by her husband was bona fide and the revision petitioners were liable to be evicted on this ground also."
(3) M/s.Boston and others vs. - S.A.Akbar and others reported in 1 998-I M.L.J. 270, in which this Court held that the requirement of the premises by the landlord under Section 10(3)(a)(iii) for the purpose of carrying on business and who is carrying on business in rented premises having no other buildings of his own honesty desiring to do business in his own premises is bona fide.
9. As rightly argued by the learned counsel for the respondent/ landlady, the uncle of the revision petitioner/tenant, who is in occupation of the adjacent portion bearing door No.13, Peddu Naicken Street, Kondithope, Chennai-79 and against whom the R.C.O.P.No.2776 of 1993 was filed for eviction on the same ground and which was ordered in the appeal and the revision filed by him in C.R.P.No.270 of 2002 was dismissed as not pressed and in which three months time has been granted to vacate, has not yet vacated from the said portion occupied by him. Even assuming he has vacated, inasmuch as he is in occupation of the portion in the same premises bearing door No.13, Peddu Naicken Street, Kondithope, Chennai-79 and in another portion of which the revision petitioner is a tenant and both portions being required for the purpose of carrying on business to run plastic industry by the landlady's son P.W.1, such requirement sought for is very much bona fide.
10. A clear case was set out in the notice Ex.P-5, in the Rent Control Original Petition as well in the evidence let in through P.W.1 that the landlady's son is actually doing business in the name and style of "Sona Plastic Industries" from 1.7.1993 in the rented premises bearing door No.1, Kanniah Street, Madras on a monthly rent of Rs.2,30 0/-. Ex.P-1 series are the rental receipts in respect of the said premises. Ex.P-2 is the partnership deed to show that P.W.1 is carrying on business in the partnership in the name and style of "Sona Plastic Industries". Ex.P-3 is the licence granted by the Corporation of Madras to carry on such business in the premises bearing door No.1, Kanniah Naidu Street, Madras. As per Ex.P-4, the said industry is registered. Therefore, it is clear that the landlady's son P.W.1 is actually carrying on business in the rented premises bearing door No.1, Kanniah Street, Chennai and either the landlady or his son P.W.1 is not in occupation of any other non-residential premises owned by them. Therefore, the requirement of the petition premises as sought for by the landlady for her son P.W.1 cannot be said to be mala fide.
11. 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 C.R.P.No.270 of 2002 filed 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.
12. As regards the contention put-forth by the learned counsel for the revision petitioner/tenant that P.W.1 cannot obtain licence to carry on plastic industries in the petition premises being the commercial zone, it is the look out of the landlady and in case licence cannot be granted, it is open to him to switch over to some other business. Therefore, the order of eviction made by the learned Rent Control Appellate Authority is to be sustained by confirming the order of the Rent Control Appellate Authority.
13. In the result, this Civil Revision Petition is dismissed with cost, confirming the judgment and decree dated 6.2.2002 made in R.C.A.No.1200 of 1996 by the learned Rent Control Appellate Authority.
Index :Yes Internet:Yes ts.
To
1) The Registrar, Small Causes Court, Madras.
2) The Section Officer, V.R. Section, High Court, Madras.
C.R.P.(NPD) No.271 of 2002S.SARDAR ZACKRIA HUSSAIN,J., After pronouncement of the order, the learned counsel for the revision petitioner/tenant sought time for eviction. Considering such request, three months time is granted for eviction, on the revision petitioner/tenant filing an undertaking affidavit within ten from today that he would hand over possession of the petition premises without resorting to execution proceedings.
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