Madras High Court
C. R. Subramaniam vs N. Vasudevan on 20 March, 1998
Equivalent citations: 1998(2)CTC211
ORDER
1. Tenant in R.C.OLP. No.8 of 1989, on the file of Rent Controller (District Munsif), Erode, is the revision petitioner.
2. Respondent, landlord of the building, filed the petition for eviction on the ground that he needs the schedule premises for his own occupation. In his eviction petition, it is said that he is carrying on wholesale and retail business in hardware and paints under the name and style 'Karpal Steel Agencies' as sole proprietor in a rented premises at Door No.134, Valayalkara Street, Erode Town from 1963. It is also said that he was also having godown for storing articles in another rented premises in Door No.I36 in the same Street. His landlord, Yusuf, filed a petition for eviction, and the same was ordered. It is further said that the petitioner (landlord) vacated the rented godown and shifted it to No.7, Chokkanatha Gounder Street, Fort, Erode-1. It is said that the landlord of door No. 134 were harassing the petitioner to vacate the rented premises, and number of petitions were filed against him. They filed R.C.O.P. No. 93 of 1979 in the District Munsif's Court, Erode, and the same was allowed. Petitioner (N. Vasudevan) filed C.M.A. No.19 of 1981, on the file of Sub Court, Erode and the same was allowed. Landlords filed C.R.P. No.976 of 1982 before this Court. The Order passed by the Rent Controller was restored. Though an application for Special Leave was filed before the Honourable Supreme Court, leave was not granted, and the order of eviction became final, and time was granted till 31.3.1989 to surrender vacant possession of the premises. In obedience to the Order of the Honourable Supreme Court, the petitioner (landlord in the present revision) handed over possession of the building to his landlords.
3. The schedule premises in one room in a row of shops. There are three shoprooms under the same roof, and they have been leased out to the respondent and other tenants. In this case, the subject matter of the proceeding is Door No.20-A and the tenant is paying a monthly rent of Rs.450. It has got a plinth area of 13 ft. x 15 ft. Since the petitioner has been directed to vacate the premises by the Honourable Supreme Court, he needs all these shoprooms for his own occupation. It is said that he does not own any other shop building to carry on his hardware and paint business. All the three shoprooms are facing Brough Road, which is the main road leading from Erode Town to Railway Station and other Bazaar roads. The buildings are also situate opposite to the newly constructed Erode Municipal Shopping Complex and Commercial Complex known as 'Gani Market'. Petitioner/landlord proposes to utilise Door No.20-A for dealing in bolts, nuts, screws and other articles and also use it as Office, and Door No.20-B will be used for dealing in paints, snowcem and other interior decoration materials. It is also said that the tenant is a wilful defaulter in payment of rent, and he was not regular in paying the rents. For the above reasons, respondent herein (landlord) filed the eviction petition.
4. In the counter statement filed by the petitioner herein (tenant), he disputed the bona fides of the landlord. It is said that the portion occupied by the revision petitioner is a very small area and the same is unsuitable for carrying on handware business. It is said that if he is evicted from the demised premises, he will put to hardship, and he will become a bankrupt.
5. The Rent Controller, after taking evidence, allowed the eviction petition. Tenant was given one month's time to surrender vacant possession. Rent Controller found that the claim of the landlord is bona fide and that he is in urgent need of the schedule premises for his own occupation. The landlord has also filed eviction petitions against other tenants who are occupying other portions of the main building, and those petitions were also allowed.
6. Aggrieved by the Order, tenant filed RCA No.34 of 1989, on the file of Second Additional Sub Judge, Erode. The Appellate Authority also confirmed the decision of the Rent Controller and dismissed the appeal.
7. The concurrent findings of the Authorities below are assailed in this Revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
8. The only question that requires consideration is, whether the concurrent finding of the Authorities below that the schedule building is bom fide required for the own occupation of the landlord is illegal and the same is liable to be interfered with under the revisional powers of this Court.
9. Learned counsel for tenant, petitioner herein, submitted that the landlord is not entitled to file even the eviction petition when he has come to Court suppressing a material fact. According to him, in the eviction petition, the landlord has stated that he has no other building of his own to carry on hardware and paint business. But this statement in paragraph 10 of the eviction petition is not correct. It is said that on his own admission, the landlord is a co-owner of non-residential building and business is also being on in the said premises. It is said that Door No.7 at Chokkanatha Street, Erode, is a shop building belonging to the landlord as well, and this fact disentitles the landlord from filing the present eviction petition.
10. Per contra, learned counsel for respondent (landlord) submitted that it is true that the landlord owns such a non- residential building as a co-owner along with others. But, according to him, the said building is inconvenient for his use. It is situated in a corner and it is unsuitable to run a hardware and paint shop. It is also submitted by learned counsel that the fact that his client owns a building is admitted even in his deposition. In fact, in the eviction petition, in paragraph 1, the landlord has stated that he vacated the rented godown one year prior to the filing of the eviction petition and shifted the godown to No.7, Chockanathar Street, Erode. It is this building which is in his physical possession. According to learned counsel for the tenant, it is this fact which disentitles the landlord from getting possession of the demised premises. When this argument was advanced before the Appellate Authority, the same was rejected for the following reason:-
The finding of the Appellate Authority is that the claim of the landlord is bona fide, and merely because the landlord is in possession of a shop building of which he is a co-owner, it cannot be said that it will disentitle him from getting possession of the schedule premises. This, according to me, is a finding which goes against the settled legal position and also bars the landlord from filing an eviction petition. I will just extract Section 10(3)(iii) of the Rent Control Act. It reads thus:-
"A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building:- (i) and (ii) xxxxxx (iii) in case it is any other non-residential buildings, if the landlord or any member of his family is not occupying for purposes 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."
This Section came up for interpretation by the Honourable Supreme Court in the decision reported in, Super Forgings and Steels (Sales) Pvt. Ltd., v. Thyabally Resuljee (dead) through L.Rs., . In that case, their Lordships said that even if the landlord is a co-owner of a non-residential building, that will disentitle him from seeking eviction. In that case, at the time when the landlord filed the eviction petition, he was not in possession of . any building of his own, either as absolute owner or as co-owner. But, pending proceeding, he became the co-owner of another non-residential premises, and the subsequent event was brought to the notice of the Honourable Supreme Court. The question was, whether the subsequent acquisition as a co-owner, will disentitle the landlord from getting possession. Their Lordships said that the subsequent event could be taken into consideration and thereafter interpreted the Section under which eviction was claimed. Paragraphs 6 to 13 of the judgment are relevant for our purpose. They read thus:-
"That a landlord who, for purposes of carrying on his business, is not occupying a non-residential building of his own in the city can get under Section 10(3)(a)(iii) of the Act, possession of another non-residential building of his own in the city in the occupation of the tenant was not disputed on behalf of the tenant-appellant. But it was contended on behalf of the tenant-appellant that a landlord occupying for purposes of carrying on his business a non-residential business, of which he is a co-owner cannot claim the benefit of ground of eviction available under Section 10(3)(a)(iii) of the Act against a tenant in a non-residential building of which he is a owner or a co-owner. The sustainability of that contention was, questioned, rather strenuously, by learned counsel for Respondents 2 to 11 on the plea that a landlord who is a co-owner of non-residential building where he carries on his business, not being its sole owner, such building cannot be regarded as "his Own" envisaged under Section 10(3)(a)(iii) of the Act as would disentitled him to the benefit of the ground of eviction, available thereunder. We find it difficult to accept the plea advanced on behalf of respondents 2 to 11 in questioning the sustainability of the contention raised on behalf of the appellant-tenant.
"Section 10(3)(a)(iii) of the Act insofar as it is material, reads thus:- 10. (3) (a) (i) **** (ii) **** (iii) In case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes 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".
If a landlord is a co-owner of a non-residential building in the city, town or village concerned, which he is occupying for purposes of carrying on his business, will he not be occupying therefore a non-residential building of his own envisaged in the above Section 10(3)(a)(iii), as would disentitled him to the ground of eviction available thereunder being the real question needing our answer in the light of the aforesaid plea of learned counsel for the respondents urged in questioning the sustainability of the contention raised on behalf of the appellant-tenant, we have to find the answer therefor.
The answer to the said question, in our view, cannot be anything other than that a non-residential building in occupation of landlord which is "his own" envisaged in Section 10(3)(a)(iii) above, is not only that of which he is an absolute owner, but also that of which he is a co-owner, for a co-owner of a building who is its landlord is regarded under Rent Control laws of our country as its owner entitled to obtain possession of such a building from a tenant for his bona fide requirement.
In Sri Ram Pasricha v. Jaganath, a three Judge Bench of this Court had to consider the question whether a co-owner landlord can be said to require the premises for his own occupation within the meaning of the expression "if he is the owner" in Section 13 (1) (f) of the West Bengal Tenancy Act, 1956 which read thus: SCC 189, para 20.
13. Protection of tenant against eviction:- (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely:
*** *** ***
(f) Where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making there to substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held."
The Bench which considered the aforesaid question with reference to the said provision of Rent Control Law, expressed its views threon, thus:- SCC 190, paras 27 and 28.
Jurisprudentially it is not correct to say that a co- owner of a property, is not its owner. Me owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13 (1) (f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. ... We are of the opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."
The owner in the expression "if he is the owner" in Section 13 (1) (f) of the West Bengal Tenancy Act, 1956 when as opined by this Court ought to be regarded as "the co-owner", inasmuch as "the owner"' like any sole owner of property, there would be no jurisdiction for us to hold that "the non-residential building which is his own" in Section 10(3)(a)(iii) of the Act, can only be that of its absolute owner' and not of its 'co-owner'.
Therefore, we have no hesitation in reaching the conclusion that the respondents, who are carrying on the business of M/s. Fakruddin and Company in non-residential building, No.151, Linghi Chetty Street, Madras, of which they are co-owners can be regarded as landlords, who are occupying their own non-residential building envisaged under Clause (iii) of Section 10(3)(a) of the Act, as would disentitle them to retain the benefit of the eviction order made by the Rent Controller against the tenant in respect of the petition mentioned non-residential building at the instance of the deceased Respondent 1, for carrying on his business on the ground that he did not occupy his own non-residential building for the purpose. Consequently, the eviction order of the Rent Controller as affirmed by the appellate authority and the High Court, which is under challenge in this appeal, calls to be set aside taking into consideration the developments which have taken place during it is pendency in this Court."(Italics Supplied)
11. In this connection, it may also be worthwhile to note a decision of the Honourable Supreme Court in, D. Devaji v. K. Sundarashana Rao, 1994 Supp (1) SCC 729 wherein Their Lordships said that possession of a non-residential building in the city, town or village is an embargo for filing an eviction petition for getting possession of a non-residential premises. In paragraph 5 of the judgment (at page 733), Their Lordships have further said thus:-
"...The analysis of the provisions made hereinbefore indicates that the landlord must be in possession of a non- residential building in the city, town or village and if he requires another non-residential building for expansion of his business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village, Section 10(3)(a)(iii) creates an embargo. Suitability or convenience does not appear to have, from the language found therein, been envisaged by the legislature. ...(Italics Supplied) Their Lordships further went on and said that the early decisions of this Court in, E.K. Nagamanickam Chettiar v. Nallakkanna Servai, 1957 (1) MLJ 182 and Janab Abdul Khader v. Hussain Ali and Sons, 1962 (2) MLJ 446 are no longer good law. Their Lordships held thus:-
"...The decisions of the Madras High Court relied on by the learned counsel do not appear to have laid down the law correctly. The language of the Madras Act in pari materia is the same as in Section 10(3)(a)(iii). In the light of the above interpretation, the construction put up by the learned Judges of the Madras High Court is not correct. .."
12. It is also worthwhile to note that the above case before the Honourable Supreme Court was under the Andhra Pradesh Rent Control Act, and Section 10(3)(a)(iii) of that Act is in pari materia with our Act. In the decision reported in, Balaiah v. Chandoor Lachaiah, a Division Bench of the Andhra Pradesh High Court has held that it will be open to the landlord to prove that the non-residential building which he is occupying is not exclusively his own. or that he is not entitled to exclusive possession, and it will not disqualify the landlord from getting possession of another non-residential building. In the last sentence in para 5 referred to above, the Supreme Court has held thus:-
"...Therefore, the Division Bench of the Andhra Pradesh High Court in Balaiah case, has not correctly laid the law."(Italics)
13. I had occasion to follow the above decision in the judgment reported in, Fakir Mohideen v. Habibunnissa died and others, 1997 (2) LW 734. In that case, I have further held that the decision of Ratnam, J., as he then was, in Shapoorji Pollanji and Company (P) Ltd., 1990 (2) LW 289 is no longer good law in view of the subsequent decision of the Honourable Supreme Court. Learned Judge (Ratnam, J.) held in that case that a co-owner is having only a fractional share in a non-residential building. This I have held as no longer good law in view of the subsequent decision of the Supreme Court. According to me, on a finding of this question alone, the decisions of the Authorities below require interference.
14. Learned Counsel for the respondent submitted that against the common Order, two tenants against whom order of eviction was passed, challenged the same before this Court in, A. Henry v. K. Vasudevan, C.R.P. No. 2997 of 1996, C. Shivappa, J., as per Order dated 12.12.1996, dismissed the Revision Petitions. I do not think that the Order of the learned Judge is a bar for considering this Case, for, that Order is not res judicata. The tenant herein is not claiming under the revision petitioner in C.R.P. No. 2997 of 1996, arid this question was also not considered by the learned counsel for the revision petitioner that subsequent to the filing of this Revision Petition, landlord has obtained possession of a major portion of the schedule premises, and the revision petitioner is retaining only about 200 sq. ft., out of a total plinth area of nearly 1400 sq. ft. It was also submitted by learned counsel that even though possession was obtained years back, landlord has not cared to occupy the same till date, and the same is even now remaining vacant. It is also submitted that when the landlord himself has said that he wants to bifurcate the business, nothing prevented him from occupying those portions of the premises for the earmarked business. Keeping the shop building locked for years together also shows that the landlord is not in need of the schedule premises. The fact that the landlord has obtained possession and the same is not used by him till date is not disputed by landlord's counsel. But I do not think that I should take note of that fact when I am dismissing the Eviction Petition on the ground that the landlord is disentitled from filing the eviction petition, and, therefore, I am not considering the same.
15. In the result, I set aside the Orders of the Authorities below, and dismiss the Eviction Petition so far as the petitioner herein is concerned. The revision petition is allowed. No costs, C.M.P. No. 13054 of 1993 for stay is closed.