Madras High Court
Mrs.Souriammal vs R.Ramesh on 27 July, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.1285 of 2007 Mrs.Souriammal ... Petitioner vs. R.Ramesh .... Respondent This civil revision petition is filed against the order dated 8.2.2007 passed by the Rent Control Appellate Authority(VII Small Causes Court) Chennai, in R.C.A.No.600 of 1999 reversing the judgement and decree dated 28.7.1999 passed by the Rent Controller-XII Small Causes Court, Chennai, in R.C.O.P.No.149 of 1996. For Petitioner : Mrs.Hema Sampath,Sr.counsel for Mr.S.Venkateswaran For Respondent : Mr.Velumani ORDER
Animadverting upon the order dated 8.2.2007 passed by the Rent Control Appellate Authority(VII Small Causes Court) Chennai, in R.C.A.No.600 of 1999 reversing the judgement and decree dated 28.7.1999 passed by the Rent Controller-XII Small Causes Court, Chennai, in R.C.O.P.No.149 of 1996, this civil revision petition is focussed.
2. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:
(i) The revision petitioner herein/landlady filed the RCOP invoking Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act seeking eviction of the original deceased tenant on the ground that the demised premises was required for the occupation of her sons to carry on their jewellery business. The matter was contested by the original defendant.
(ii) On the side of the revision petitioner/landlady her husband Aruldoss was examined as P.W.1 along with her son Antony as P.W.2 and Exs.P1 to P6 were marked. On the side of the tenant, he examined himself as R.W.1 and no document was marked.
(iii) Ultimately, the Rent Controller ordered eviction.
(iv) Being aggrieved by and dissatisfied with the said order, the appeal in R.C.A.No.600 of 1999 was filed by the original tenant.
(v) After hearing both sides, the appellate Court set aside the order of the Rent Controller and dismissed the RCOP.
3. Challenging and impugning the judgement of the appellate Court, the landlady filed this revision on various grounds, the gist and kernal of them would run thus:
(a) The appellate Court without considering properly the oral and documentary evidence in this case simply set aside the order of the Rent Controller.
(b) The appellate Court failed to take into consideration Ex.P6-the letter from the Commercial Tax Department, which would reveal that the petitioner/landlady's husband has been carrying on business in the rented premises continuously for several years.
(c) The appellate Court was very much carried away by Ex.P5-the unregistered partnership deed, which emerged among the sons of the landlady and certainly such registration or otherwise of the partnership firm is having nothing to do with the genuineness of the case of the landlady.
(d) The appellate Court erred in holding that no evidence was adduced to show that the petitioner's husband was ordered to be evicted from the tenanted premises.
(e) The admissions made by R.W.1-the original tenant was not taken into consideration. In fact, R.W.1 himself admitted that eviction order was passed as against the landlady's husband from the demised premises at No.115 Triplicane High Road, Chennai.
(f) The lower appellate Court also wrongly assumed as though Exs.P3-the Registration certificate and P5-the un-registered partnership deed, were created for the purpose of this case.
(g) Non production of the account book and the ledger book relating to 'Kavitha Jewellery' was taken seriously by the appellate Court.
(h) Ex.P6 reveals that the business was carried on by the petitioner's sons. As such, the appellate authority, without properly addressing himself to the facts simply reversed the order of eviction passed by the Rent Controller, warranting interference by this Court in this revision.
4. The learned Senior counsel for the revision petitioner/landlady reiterating the grounds of revision would put forth and set forth her arguments, which could succinctly and precisely be set out thus:
(i) The fact remains that the landlady does not possess any property of her own within the city of Madras other than the building in which the demised premises is situated and before the Rent Controller the tenant did not plead that the premises bearing Door No.116, Triplicane High Road, was owned by the landlady's husband.
(ii) The tenant cannot dictate terms to the landlady that the demised premises would not be suitable for her sons to conduct jewellery business.
(iii) The bona fide intention on the part of the landlady in seeking eviction of the tenant was beyond doubt, as the Rent Controller addressing himself to the evidence appropriately, ordered eviction, but without applying the correct proposition of law, the appellate authority set aside the same.
Accordingly, the learned Senior counsel prays for setting aside the order passed by the appellate authority and for restoring the order passed in the RCOP.
5. Per contra, the learned counsel for the respondent/tenant by way of torpedoing and pulverising the arguements as put forth on the side of the revision petitioner/landlady, would develop his arguements, which could tersely and briefly be set out thus:
(i) There is no consistency in the evidence adduced on the side of the landlady. P.W.1-the husband of the landlady would admit that he was running business in the premises bearing door No.115, Triplicane High Road and in such a case, the landlady's version in the RCOP that her sons are doing business at Door No.115 Triplicane High Road and that they require the demised premises for their occupation cannot be accepted as correct.
(ii) In one breathe P.W.1 would state certain facts and in another breathe he himself would aver certain other facts. There is no consistency between the depositions of P.W.1 and P.W.2.
(iii) The landlady cannot pick and choose certain sentences in the deposition of R.W.1 and claim that there were admissions made by R.W.1 in her favour.
(iv) The appellate Court clearly referred to the various pitfalls and drawbacks in the deposition of P.W.1 vis-a-vis the averments in the RCOP and ultimately arrived at the conclusion that there was no bona fide intention on the part of the landlady in seeking eviction.
(v) The fact also remains that earlier the landlady met with her waterloo in the earlier litigation seeking fixation of fair rent and as such, actuated by mala fide intention, the present RCOP was filed purely for the purpose of evicting the tenant by hook or by crook.
Accordingly, the learned counsel for the respondent/tenant prays for confirming the order passed by the appellate authority and for dismissing this CRP.
6. Heard both sides.
7. The points are consideration are as under:
(i) Whether the demised premises is bona fide required by the landlady for the bona fide purpose of accommodating her sons' business, viz., jewellery business therein and whether the appellate Court was justified in reversing the order of the Rent Controller?
(ii) Whether there is any illegality or perversity in the order passed by the appellate authority?
8. Points (i) & (ii): Both these points are taken together for discussion as they are interconnected and interwoven, interlinked and entwined with each other.
9. At the outset itself, I would like to refer to the decisions cited on the side of the respondent/tenant:
(i) The decision of this Court reported in 1997(III) CTC 339 T.S.SETHURAMAN VS. J.NAGALAKSHMI AND ANOTHER, paragraph 15 of it would run thus:
"15.In the evidence, P.W.1 has stated that the premises is required for his son's electrical business. He has further stated that the premises is required for residence and for business. But, unfortunately, that was not the case pleaded in the petition. But P.W.1 in his evidence has stated that there was already business at Madras. The way in which the landlord has come forward with his case stating one reason in the petition and another reason in his evidence will clearly show that the requirement of the landlord of the premises in question is not bona fide one. The authorities below have not properly appreciated the pleadings and evidence."
No doubt in the said decision, the Court found that when there is inconsistency in the evidence and that the evidence does not go hand in hand with the averments in the plaint, then no bona fides could be assumed. In fact the learned Judge in the said precedent highlighted that in the petition it was found averred that the premises was required for residence and for business, but P.W.1 in that case stated that he was already having business at Madras and as such, there was inconsistency and in that context the Court virtually rejected the prayer of the landlord. But here the factual scenario is different and it is quite obvious.
(ii) The decision of this Court reported in 2006(1) CTC 333 SHAHJAHAN VS. JANATH ASHRAF UDUMAN, paragraph No.6 of it would run thus:
"6. The learned counsel for the revision petitioner, in order to relieve from the penalty visited upon the tenant, by way of an order of eviction, would content that, even as per the admission made by P.W.1, there is no default, much less wilful default in payment of rent and this being the position, the order passed by the Rent Controller, ordering eviction, as if the tenant had committed wilful default, should go. It is the further submission of the learned counsel for the revision petitioner that admittedly, P.W.1, for whom the petition mentioned premises is required, is not carrying on any business, as contemplated under the Act and the so-called arrangements, said to have been made by him, to commence the business, also will not attract the wordings 'carrying on business' and unfortunately, these facts were overlooked not only by the Rent Controller but also by the appellate authority, who was expected to correct the mistake and in this view, this Court should come to the aid of the tenant to correct the same, thereby to set aside the order of eviction slapped under Section 10(3)(a)(iii) of the Act."
It is axiomatic from the mere perusal of the aforesaid decision that the facts involved in that case are entirely different from this case.
10. In this case it has to be seen as to whether as pointed out by the appellate authority in his judgement, there are inconsistencies in the case of the landlady.
11. At this juncture, I would like to differentiate and distinguish Sec.10(3)(a)(iii) and Sec.10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act and in this connection, I recollect and call up the following decisions:
(a) In respect of the cases which arise under Section 10(3)(a)(iii) of the Act, the following decisions could fruitfully be cited.
(i) 1998 MADRAS LAW JOURNAL (SUPP) 18 RAM NARAIN ARORA V. ASHA RANI AND OTHERS, certain excerpts from it would run thus:
"8. . . . . . Therefore, he submitted relying on the decisions in Meenal Eknath Kshirsagar v. Traders and Agencies, (1996) 5 S.C.C. 344 and Ram Dass v. Ishwar Chander, (1988)3 S.C.C.131, that the view taken by the High Court must be upheld.
9. Sec.14(1)(e) of the Act read as follows:
"14(1)(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.'(Italics supplied)
10. In making a claim that the suit premises is required bona fide for his own occupation as a residence for himself and other members of his family dependent on him and that he has no other reasonably suitable accommodation is a requirement of law before the court can state whether the landlord requires the premises bona fide for his use and occupation. In doing so, the court must also find out whether the landlord or such other person for whose benefit the premises is required has no other reasonably suitable residential accommodation. It cannot be said that the requirement of the landlord is not intermixed with the question of finding out whether he has any other reasonably suitable accommodation. If he has reasonably suitable accommodation, then necessarily it would mean that he does not require the suit premises and his requirement may not be bona fide. In such circumstances, further inquiry would be whether that premises is more suitable than the suit premises. Therefore, the questions raised before the Court would not necessarily depend upon only the pleadings. It could be a good defence that the landlord has other reasonably suitable residential accommodation and thereby defeat the claim of the landlord."
(ii) 1995(II) CTC 452 SANKARANARAYANAN V. PALANISWAMI, certain excerpts from it would run thus:
"8. . . . . Section 10(3)(a)(iii) deals with the conditions for obtaining possession of a non-residential building.
The conditions required are:
a) The building should be non-residential in character.
b) The landlord should be carrying on business on the date of his applying for eviction.
c) He should not be occupying any other non-residential building belonging to him for the purpose of his business; and
d) The landlord's claim is bona fide for his business needs and not based on oblique motives like trying to obtain more rent or to harass the tenant."
(b) In respect of Section 10(3)(c) the following decisions could fruitfully be cited:
(i) (2001) 8 SUPREME COURT CASES 110 S.R.BABU V. T.K.VASUDEVAN AND OTHERS, certain excerpt from it would run thus:
"10. Sub-Section (8) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) reads thus:
"11.(8) A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use."
11. A perusal of sub-section (8) makes it clear that to invoke this sub-section the landlord must show that (i) he is occupying only a part of the building; (ii) the tenant is occupying the whole or a portion of the remaining part; and (iii) the landlord requires the additional accommodation for his personal use.
12. The following is the distinction between sub-section (3) and sub-section (8) of Section 11 of the Act. The former provision applies when the building is wholly occupied by the tenant and the landlord bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him provided he does not have any building of his own in his possession in the same city, town or village whereas the latter provision applies when a landlord is already in occupation of a portion of the building and needs additional accommodation which the tenant is occupying, for his personal occupation.
13. In the instant case, admittedly, the first respondent is in occupation of a part of a building and the appellant is occupying another part of the building which the first respondent requires as additional accommodation for his personal use. Therefore, this case falls under sub-section (8) of Section 11 and not under sub-section (3) of Section 11 of the Act.
14. In our view, once it is held that the landlord requires additional accommodation for his personal use, he is entitled to utilise it to best suit his requirement. The condition in which the additional accommodation is to be used by the landlord cannot be dictated by the tenant. The first respondent may use it as it exists or he may use it after necessary repairs, additions or alterations to suit his requirements. The appellant has no say in such matters."
(ii) 2007( 3) CTC 152 RASI SILKS BY ITS PARTNER K.ARUNACHALAM VS. RASI SILKS T.A.VENKATACHALAM, an excerpt from it would run thus:
"12. . . . . . Holding that the crucial aspect is a special instance in matters arising under Section 1-(3)(c) of the Act and that there should be a categorical finding by the statutory authorities on hardship that may be caused to the Tenant by granting it, will outweigh the advantage to the landlords in K.A.Loganatha Naicker v. S.R.Balasundaram Mudaliar, 1974(2) MLJ 256, it was held thus:
"It is imperative for the authorities in cases arising under Section 10(3)(c) of the Tamil Nadu Act (XVIII of 1960), to give specific finding whether the hardship the tenant is likely to suffer would outweigh the advantage to the landlord or vice versa. Unless this aspect is noticed and adjudged upon by the statutory authorities, there is no complete enquiry as contemplated in respect of the petitions arising under Section 10(3)(c) of the Act."
21. Contention of Tenant is that the landlords can expand the hotel business on the open space available, which is abutting the premises. In his evidence, P.W.1 has stated the open space cannot be utilised for running the hotel. It is well settled that the landlord can choose the portion required and it is not for the Tenants to dictate terms. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999(1) MLJ 233, this Court has held that the landlord can choose the portion required and it is not for the tenant to dictate terms. It is not the object of the provision to weigh the hardship of the Tenant as against the test of the landlord on a delicate scale, giving the benefit of the slight tilt in favour of the tenant."
12. As such, a mere reading of those two sets of decisions would amply make the point clear that the Courts are enjoined to see that the ingredients as contemplated under those provisions are satisfied depending upon the case concerned before ordering eviction and there could be no quarrel over such a proposition.
13. Here, the Courts below ordered eviction by invoking Section 10(3)(a)(iii) of the Act. If at all the Court is enjoined to apply Section 10(3)(c) of the Act, the question of looking into Section 10(3)(e) and the first proviso appended to it, so to say, the 'bona fide requirement' of the landlord and the 'relative hardship' would arise.
14. Nowhere in the first proviso appended to clause (e) of Section 10(3) of the Act, the hardship of the landlord is contemplated. What is contemplated in the said proviso is the hardship that would be caused to the tenant in the event of ordering eviction and the court has to see whether that hardship will outweigh the benefit, which the landlord as such would be getting on evicting the tenant. On the one hand, the fora concerned under the Act should consider the hardship on the side of the tenant, if eviction is ordered; on the other hand, the courts are not bound to consider the hardship on the side of the landlords. But what the court should consider is the benefit or advantage that the landlord would be getting by evicting the tenant. Ultimately it should be assessed as to which of the two would weigh more and accordingly a decision has to be rendered.
15. If the benefit/advantage would outweigh the hardship, then eviction could be ordered. In other words, if the tenant's hardship outweighs the advantage of the landlord then no eviction should be ordered and this should be the proper approach. It may appear at first blush, the distinction sought to be made by me is one between tweedledum and tweedledee; between rock and a hard place; between six of the one and half a dozen of the other but in my opinion, the distinction is one between chalk and cheese. From the available evidence, the court should consider what probable benefit that the landlord would be getting by evicting the tenant and it has to be seen what are all the probable hardship to which the tenant would be put into, if he is evicted from the demised premises. As such, hardship of the tenant, vis-a-vis, the benefit/advantage of the landlord should weigh in the mind of the authorities under the Rent Control Act.
16. So far this case is concerned, the Court is not enjoined to consider the relative hardship, but on the other hand, the Court is bound to consider the 'bona fide requirement' of the revision petitioner/landlady herein.
17. As correctly pointed out by the learned Senior counsel for the revision petitioner/landlady, the landlady in the RCOP is not owning any other property in the city of Madras, other than the building in which the demised premises is situated and for that matter even there was no pleading or averment on the side of the respondent/tenant that the landlady's husband was owning the premises at door No.116, Triplicane High Court, even though the learned counsel for the respondent/tenant argued that the said building bearing Door No.116, Triplicane High Court belongs to the landlady's husband.
18. The law, in my opinion is well settled that a landlady can very well seek eviction of a tenant by pointing out that the premises is required for the bona fide purpose of accommodating her sons' business and in that connection she is expected to prove that already preparations have been undertaken to set up the business and she should also establish that she is not owning any other property within the city, other than the building in which the demised premises is situated.
19. A close reading of the deposition of P.W.1 and P.W.2 coupled with the deposition of R.W.1 would clearly display and demonstrate that in the premises bearing door No.116, Triplicane High Road, Chennai, P.W.1-Aruldoss-the husband of the landlady is running his business under the name and style 'A.S.Jewellery', whereas in the premises bearing Door No.115 Triplicane High Road, Chennai, the husband of the landlady-P.W.1 as well as one of her sons was doing business. However, it cannot be gainsaid that there is no inconsistencies at all in the depositions of P.W.1 and P.W.2.
20. The contention on the side of the landlady is that in the premises bearing Door No.115, Triplicane High Road, Chennai, her three sons, on the strength of the unregistered partnership deed-Ex.P5 have been running the jewellery business under the name and style 'Kavitha Thanga Maligai', which was earlier nomen clatured as 'Kavitha Jewellery'.
21. Here one important fact the Court should not lose sight of. P.W.1 and his sons are not at lagger heads and it is not a partition suit, which emerged among them. It is clear from the evidence that they are living in one family, comprised of the landlady, her husband and her children and in such a case, they are doing jewellery business in several ways. In certain portions in the deposition of P.W.1 one could come across the fact that he was doing business in the shop bearing Door No.115, Triplicane High Road, Chennai, and he would also state that his son has been assisting him. The fact also remains that P.W.1's landlord filed, as per Ex.P4-the eviction petition, so as to evict him from the premises and in that the sons of P.W.1 were not arrayed as respondents.
22. In this connection what I would like to observe is that the landlord of P.W.1 might have chosen to array only P.W.1 and for reasons best known to himself might have left out the names of the sons of P.W.1 and because of that this Court while analysing the bona fide requirement of the landlady to accommodate her son in the demised premises, cannot place much reliance on it.
23. The law, as already highlighted by me supra, is well settled that even if the landlady's sons are not doing any business anywhere, still she is having the right to get the tenant evicted on the ground of bona fide requirement of her sons' business on the mere showing that her sons have made preparations in connection with the intended business.
24. At this juncture, the learned counsel for the respondent/tenant would submit that had the landlady came forward with such a clear and categorical plea without avering about the business which is going on at Door Nos.115 and 116 Triplicane High Road, Chennai, then the matter would have been different and the tenant would have taken a different stand.
25. The said arguement fails to carry conviction with this Court for the reason that the law is clear that a mere preparation to conduct business itself is sufficient to prove the bona fide requirement, and there is overwhelming evidence available on record that the sons of the landlady are also doing business. Such evidence is sufficient to arrive at the conclusion that the sons of the landlady are already doing business of their own accord in some manner; a fortiori it is much more than mere preparation and that could rightly be taken as sufficient cause for the landlady to seek eviction of the tenant on the ground that the demised premises is required for the business of her sons.
26. Indubitably and indisputably already in respect of the said demised premises at Door No.115, Triplicane High Road, Chennai, eviction proceedings started by the landlord concerned and whether he initiated the proceedings appropriately or not are all matters with which now this Court is not concerned. However, by way of dispelling the doubts raised by the tenant by his pleas, Section 10(5)(a) of the Act clearly contemplates that after evicting the tenant from the demised premises if the same is not occupied by the persons concerned, so to say, if there is no personal occupation, then the tenant has got the right to obtain redelivery. As such, the law also safe-guards the right of the tenant and it also ensures that a landlord with mala fide intention should not go scot-free and that he cannot keep the premises under lock and key or let out the premises to some third party.
27. The appellate authority no doubt discussed only on the aforesaid inconsistencies found in the depositions of P.W.1 and P.W.2 and disagreed with the view of the Rent Controller without applying the settled legal propositions as highlighted supra.
28. On the side of the landlady the following decisions have been cited:
(i) (2004) 2 MLJ 14 JANAKI AMMAL AND OTHERS VS. SAMINATHAN (DIED) AND OTHERS, certain excerpts from it would run thus:
"7. Nextly, the learned counsel for the petitioners has pointed out that in the case involved in Muniasmmal v. Sundara Mahalingam, (1990)2 M.L.J.186, the landlord did not take steps to commence the business nor he had been carrying on any business on the date when the petition was filed and therefore it was held in the said decision that the landlord has not satisfied the requirement of Sec.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'Tamil Nadu Act 18 of 1960'). Here also, I am of the opinion that since the tenant himself has admitted in his evidence that the first petitioner herein was carrying on the business in the sale of dhal in a rented premises in Big Bazaar Street, Kumbakonam, the ratio laid down in the said decision cannot help advance the case of the respondent herein.
11. A careful reading of the said decisions would make it abundantly clear that the requirement of the premises by the landlord would also be a requirement for and on behalf of any member of his family, who is running the business in a rented premises and does not own any such non-residential building in the town or city concerned."
(ii) 2007 (2) CTC 797-B.KISHORE VS. D.MARAGATHAVALLI, certain excerpts from it would run thus:
"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 bona fide. 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 ion 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 bona fide preparation for commencement of business is sufficient. In the decision reported in V.V.Ramakrishnan v. T.R.Anantanarayanan, 1984(1) MLJ 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 content that there must be an actual business run ion the date of the petition, that bona fide 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."
(iii) 1997-2-L.W. 607-THIRUNAVUKKARASU V. VASANTHA AMMAL, certain excerpts from it would run thus:
"15. Learned counsel for the petitioner stressed on the word's "carrying on business" as stated in our Statute. Learned counsel argued that if medical profession also comes within the meaning of 'business', then the requirement must be present need. On the date of petition, the landlady's son was only a student and, therefore, it cannot be said that he is 'carrying on business'. According to him, emphasis should be given on the present need. True, there are words 'carrying on business' in our state. But the said words have been interpreted judicially.
16. Regarding the words 'carrying on business' I had occasion to consider the entire case law on the point in the decision reported in 1995 (2) MLJ 282, (Arumugha Chettiar v. Jayaraman). In that case, I have extracted the earlier view and how far the later judicial interpretation has given a liberal view. I have also referred to the various decisions of this Court wherein their Lordships have said that the words 'carrying on business are to be understood in a more practical way than by giving a literal interpretation. The literal interpretation which was the earlier view has been given a go by in the later decision. The present trend seems to be that the word "carrying on business" may consist of series of acts, and if no step is taken, that will be sufficient to com within the meaning of 'carrying on business'."
(iv) 1999-3-MLJ-303-T.V.JAGATRAKSHAGAN V. N.FUTAREE BAI AND OTHERS, certain excerpts from it would run thus:
"8. A plain reading of the above provision would reveal that the landlord, in order to obtain an order of eviction against the tenant under Section 10(3)(a)(iii) of the Act shall satisfy the following four conditions:
(a) The premises in question must be non-residential;
(b) The wife for whose business the landlord requires the premise in question shall carry on a business;
(c) The wife for whose business the landlord requires the premises is not occupying for the purpose of such business a non-residential building of her own; and
(d) the landlord's requirement of the premises for the business of his wife must be bona fide.'
18. 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 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 Sec.10(3)(a)(iii).
24. As pointed out in the rulings cited supra, we cannot give the literal and fullest meaning to the expression 'carrying on business', as it is not possible to interpret the said expression in the same manner in all cases irrespective of the nature of the business. Certain business may need elaborate preparation and certain business may not require any preparation."
(v) 1998-2-L.W.-556-A.PERUMAL AND 4 OTHERS V. P.MOHAMMED SARBUDDEEN, certain excerpts from it would run thus:
"7. The learned counsel for the petitioners submitted that in the absence of any pleading to the effect that the landlord has been carrying on a business, the petition cannot be maintained. To support his contention, he relied upon the decision of Ramalingam Pillai (dead) and 7 others v. Murugesan and another case (1993-1-L.W. 356) wherein Venkataswami,J. (as he then was) has held that:
"Taking into consideration all the averments made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of bona fide requirement. The Courts have to consider only the evidence on record and decide whether the bona fide requirement has been made out. The absence of any express sentence in the pleading does not vitiate the proceedings before the Courts below."
In the said case cited by the learned counsel for the petitioner, the oral evidence was not so clear, and the learned Judge set aside the order of eviction. So the said judgment may not help the case of the tenant but on the other hand it will help the case of the respondent. The submission of the learned counsel for the petitioner that mere intention is not enough to start the business cannot be sustained, in view of the fact that the landlord has proved that he has been carrying on the business in some other premises.
29. A mere poring over and perusal of the above excerpts including the whole judgments would make it clear that it is sufficient if the landlady's sons have already started business either independently or jointly with their father and that itself could be taken as sufficient for ordering eviction of the tenant.
30. The learned Senior counsel for the revision petitioner also highlighted that during the pendency of the proceedings, the original tenant died and that only his son is now resisting this case as respondent.
31. In view of the ratiocination adhered to by me in deciding this case, I need not ponder over that point as to whether the son of the landlady require the premises to continue his father's business. The very fact that he already got himself impleaded and contesting the matter would show that he wanted to carry on business in the same premises.
32. No doubt the appellate Court is the lost court of facts and it has got the right to re-evaluate the evidence threadbare and arrive at a different conclusion. But in this case, in my considered opinion the Rent Controller took into account the significant features and au fait with law and au courant with facts ordered eviction. Whereas, the appellate Court focussed its attention much on mere contradictions in the evidence and that too, pertaining to the carrying on the business in the said premises bearing Door No.115 Triplicane High Road and based on that virtually the appellate authority, in my opinion wrongly set side the order of the Rent Controller. Accordingly, the order dated 8.2.2007 passed by the appellate authority in R.C.A.No.600 of 1999 is set aside and the order dated 28.7.1999 passed by the Rent Controller-XII Small Causes Court, Chennai, in R.C.O.P.No.149 of 1996 is restored.
33. At this juncture I would like to point out that the tenant has been in occupation of the premises for pretty a long time and carrying on business and as such, certainly he would be requiring some time to vacate the premises. Hence, I am of the view that granting six months' time would serve the purpose subject to payment of rent regularly. Accordingly, it is ordered. If there is one default in paying the monthly rent, then E.P.could straight away be filed by the landlady for executing the eviction order.
In the result, the civil revision petition is allowed. No costs.
Msk To
1. The VII Small Causes Court, Chennai.
2. The XII Small Causes Court, Chennai