Madras High Court
Syed Safiullah Husaini vs M.Raghupathi on 7 February, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 7.2.2012. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(NPD)No.4586 of 2011 Syed Safiullah Husaini ..Petitioner vs. M.Raghupathi ..Respondent Civil Revision Petition against the order dated 11.1.2010 in R.C.A.No.10 of 2006 on the file of the Sub Judge, Poonamallee against the order dated 13.7.2006 in R.C.O.P.No.33 of 2003 on the file of the District Munsif cum Judicial Magistrate, Ambattur. For petitioner : Mr.N.Ilangovan For respondent : Mr.S.Muthukumar ORDER
Revision petitioner is the landlord. He filed application for eviction of the respondent on the ground of wilful default in payment of rent and also for his own occupation. The Rent Controller allowed the application on the ground of owner's occupation and dismissed the application on the ground of wilful default. Aggrieved by the same, the respondent filed appeal before the Rent Control Appellate Authority and the appellate authority allowed the appeal holding that the requirement of the landlord/revision petitioner is not bona fide and dismissed the application for eviction filed by the revision petitioner. Hence, this revision.
2. It is submitted by the learned counsel for the revision petitioner that the appellate authority, without properly appreciating the evidence of P.Ws.1 and 2, erred in holding that the there is no bona fide on the part of the revision petitioner in claiming the premises. According to the learned counsel for the revision petitioner, it has been specifically stated in the petition that the premises is required for the petitioner's son for his business in software as he is qualified in that field. It is further stated that the petitioner bona fide requires the premises for his son, who is an Engineer, to start the software business. PW1, the revision petitioner, also gave evidence to that effect and the son of the revision petitioner also was examined as PW2 and he has also given evidence that he is a graduate in Electronic Science and he wants to start a business in computer software in the premises and he has got means to commence the business and he is already doing repairs of computers and therefore, he, bona fide, requires the building for his own business. The learned counsel for the revision petitioner, therefore, submitted that without appreciating the evidence of P.Ws.1 and 2, the appellate authority allowed the appeal filed by the respondent on the ground that the requirement is not bona fide as the revision petitioner had disconnected electricity three months prior to the filing of the petition for eviction and after the tenant filed application for restoration of amenities, an order was passed in that regard and the electricity was restored and therefore, the appellate authority held that there is no bona fide on the part of the landlord. It is submitted by the learned counsel for the revision petitioner that due to non payment of rent from January 2003, the electricity supply was disconnected and when the rent was paid, that amenity was restored and that cannot be construed as a mala fide act on the part of the landlord.
3. On the other hand, the learned counsel for the respondent/tenant submitted that admittedly, the building consists of ground floor and first floor and in the ground floor, in the front portion, there are two shops and in the rear portion, the revision petitioner is residing with his family and admittedly, the son of the revision petitioner is doing repairs in a portion of the residential portion which is situate on the rear side and therefore, the portion in which the son of the revision petitioner is doing computer repairs can be construed as a non-residential portion and if so construed, the revision petitioner is not entitled to claim the portion in the occupation of the tenant as the revision petitioner is already in possession of a non-residential portion. He further submitted that having regard to the fact that the electricity was disconnected with a view to evict the respondent, the appellate authority has rightly held that there is no bona fide and relied upon the judgment of this court in T.S.SETHURAMAN v. J.NAGALAKSHMI (1997 (III) CTC 339), and also the judgment in THE REGIONAL MANAGER, TAMIL NADU HANDLOOM WEAVERS' COOP. SOCIETY LTD. v. V.NATARAJAN (2010 (6) CTC 454) in support of his contention. He also relied upon the judgment of the Supreme Court in V.RADHAKRISHNAN v. S.N.LOGANATHA MUDALIAR (1998 (III) CTC 108) in support of his contention.
4. Heard both sides. Admittedly, in the ground floor portion, there are two shops and the respondent is doing business in one shop and another shop is in the occupation of another tenant and in the rear portion, the revision petitioner is residing with his family. It is also admitted in the evidence that the son of the revision petitioner is doing computer repair works in a portion of the residential premises. Therefore, the question to be considered is whether the portion in which the son of the revision petitioner is doing repair works can be construed as a non-residential portion so as to disqualify the revision petitioner from claiming the schedule property in the occupation of the respondent for the non-residential purpose of his son.
5. A reading of section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act makes it clear that the landlord is entitled to order of eviction if (a) building is non-residential in character; (b) Landlord should be carrying on business on date of Application for eviction; (c) Landlord should not be occupying any building of his own; (d) claim should be bona fide.
6. Admittedly, the rear portion is used by the landlord for his residential purpose and in a portion of the rear side, his son is doing business. According to me, the purpose for which a premises is used can be taken into consideration to decide the purpose for which the entire premises is being used. When the premises is used for residential purpose and in a portion of that premises, one of the members of the family is doing some non-residential work, that will not convert the premises as a non-residential one. For example, if in a residential premises owned by an Advocate, in a room, if the Advocate is having office, that will not make the premises as a non-residential premises nor we can separate that portion from the remaining part of the premises and treat the office as a non-residential premises. Therefore, when in a residential premises, a portion is used by a member of the family for non-residential purpose, that will not change the character of the premises and it is continued to be used for that residential purpose and therefore, the argument of the learned counsel for the respondent that the revision petitioner is using a portion of the residential premises for his non-residential purposes and therefore, that portion must be construed as a non-residential premises and therefore, he is not entitled to ask for eviction of any non-residential portion cannot be accepted.
7. In the judgment reported in 2010 (6) CTC 454 rendered by me, I have stated the ingredients of section 10(3)(a)(iii) and as per the ingredients stated therein, the building in which the tenant is occupying must be a non-residential building and the landlord should not be occupying any building of his own. The phrase 'the landlord should not be occupying any building of his own' will only mean that the landlord should not be occupying any non-residential building of his own and it cannot be construed that he should not be occupying any other building which is residential or non-residential building of his own. Therefore, as per the ingredients of section 10(3)(a)(iii), the landlord has satisfied that the tenanted premises is a non-residential one and he is not occupying any non-residential premises of his own.
8. As per section 10(3)(a)(iii), the landlord should be carrying on business on the date of application and the claim should be a bona fide one. In the same judgment, I have incorporated the meaning of the phrase "carrying on business" and the landlord need not carry on business actually and it is enough if the landlord bona fide intended to start business in the premises in the occupation of the tenant.
9. In this case, as per the evidence of PW1 and PW2, the son of the revision petitioner is already doing business in computer in a portion of his residential house and he has also let in evidence that he has got money to start a computer repair shop and he has got experience in that field. Further, he is a qualified graduate in Electronic Sciences. Therefore, it cannot be contended that the son of the revision petitioner is not qualified to run a computer shop and he does not have the means to start the business. Further, the argument of the learned counsel for the revision petitioner that there is variance in the pleading and in the evidence regarding the purpose for which the premises is required and therefore, the requirement is not bona fide cannot also be accepted. It is the contention of the learned counsel for the respondent that in the pleading it was stated that the premises is required for starting a software business and PW2 son of the revision petitioner has given evidence that he wants to do repair business in computer and therefore, there is a change of business and that also prove the mala fide on the part of the revision petitioner.
10. The argument of the learned counsel for the respondent cannot be accepted as it has been made clear from the evidence of PW1 that he wants to start business in computer software and he is also interested in doing repair of computers and he has got means to start the business. Whether a person is going to start business in computer software or a person is going to start a repair shop in computers will not make any difference and that cannot be considered for two different purposes. Therefore, the judgment relied upon by the learned counsel for the respondent reported in 1997 (III) CTC 339 in that aspect cannot be applied to the fats and circumstances of this case.
11. The last contention of the learned counsel for the respondent that there is no bona fide on the part of the revision petitioner and admittedly, the revision petitioner has disconnected electricity and that was restored after an application was filed by the respondent for restoration of the amenities and that would prove the mala fide on the part of the revision petitioner in evicting the respondent.
12. Admittedly, the application was filed on the ground of wilful default and for own occupation and the case of the revision petitioner was that the tenant has committed default in payment of rent for January and February 2003 and the application was filed in July 2003. It is the case of the revision petitioner that he disconnected the electricity due to the failure on the part of the tenant in paying rent and after receipt of rent, he restored the electricity. The Rent Controller rejected the case of the landlord on the ground of wilful default holding that the default is not wilful. Admittedly, the landlord has not paid the rent for the month of January and February till the filing of the application by the respondent for eviction and therefore, considering the fact that the tenant has not paid the rent, the landlord has disconnected electricity. Further, according to me, merely because the landlord has disconnected the electricity, that cannot be a ground to reject the case of the landlord if the landlord is otherwise able to prove his case. As stated supra, the landlord has satisfied the ingredients of section 10(3)(a)(iii) and therefore, the appellate authority ought not to have rejected the case of the revision petitioner on the ground of mala fide and according to me, the order of the appellate authority is liable to be set aside and the landlord has also proved his bona fide.
13. In the result, the judgment and decree of the Rent Control Appellate Authority is set aside and the order of eviction passed by the Rent Controller is confirmed. The revision is allowed. No costs. Time for eviction is three months on condition of filing undertaking affidavit by the respondent/tenant agreeing to vacate and hand over possession within three months from the date of receipt of copy of the order. The tenant is also liable to pay rent till handing over vacant possession and the affidavit of undertaking has to be filed within two weeks from the date of receipt of copy of this order and if any one of the above conditions is not complied with, it is open for the revision petitioner to execute the eviction order.
ssk.
To
1. The Sub Judge, Poonamallee.
2. The District Munsif cum Judicial Magistrate, Ambattur.
3. The Record Keeper, V.R. Section, High Court, Chennai