Madras High Court
T.V. Jagatrakshagan (Since Deceased) ... vs N. Futaree Bai And Ors. on 8 July, 1999
Equivalent citations: (1999)3MLJ303
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. This civil revision petition is directed against the judgment and decree of the Appellate Authority made in R.C.A.No. 1090 of 1993 dated 22.3.1995, confirming the fair order and decretal order of the Rent Controller, passed in R.C.O.P.No. 1079 of 1992 dated 11.8.1993, dismissing the petition for eviction.
2. The first petitioner (since deceased) was the landlord and the petitioners 2 to 6 are his legal representatives. The respondents are the tenants. The landlord filed a petition for eviction of the tenants under Section 10(3 )(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act claiming that the premises in question, viz., shop No. 3 in Door No. 237/1, Quaide - Millat Road, Triplicane, Madras belonged to the first petitioner is required for his wife for doing tailoring business. The tenants contested the petition on the ground that the requirement of the premises for business purpose for his wife is not bona fide and that since the demand for enhanced rent was not acceded to, the petition for eviction came to be filed.
3. Accepting the counter plea made by the tenants, the Rent Controller dismissed the said petition. Having failed in his attempt, the landlord filed an appeal before the appellate authority, which in turn confirmed the finding of the Rent Controller holding that the requirement is not bona fide. This concurrent finding is challenged in this revision.
4. Before going into the merits of the contentions urged by the counsel for the petitioners and the counsel for the respondents, let me list out the reasonings given by both the Rent Controller and the appellate authority for rejecting the claim of the landlord for eviction as under:
(a) The eviction petition has been filed by the landlord on the ground that the premises is required for his wife to have a tailoring business in the premises in question. The landlord is working as an Officer in a Bank. When the landlord is in an affluent circumstance, a suspicion arises as to whether the premises is really required for his wife for the business of stitching of cloths and as to whether she is really doing the said business in the residential premises as alleged. To prove that his wife was already carrying on the tailoring business, the landlord could have examined any customer or his wife. But, this is not done. Ex. P - 1 is the Diploma for Tailoring obtained by the daughter of the landlord in 1980. She already got married. She is living with her husband separately. The daughter also was not examined to support the landlord. As such, there is no evidence that his wife was carrying on business in tailoring at the time of filing the petition for eviction.
(b) The initial agreement entered into between the father of the present tenants and the landlord in 1984 was for five years. The monthly rental amount was fixed at Rs. 350. After the expiry of five years, that is, in 1989, the rent was enhanced to Rs. 437.50. If the premises is actually required for own use for doing business by the wife, the landlord would not have agreed for the rental increase of 25 per cent even at the time of expiry of five years in 1989. The second agreement executed in 1989 will have force till the year 1994. Since the landlord demanded for further enhancement of rent and the same was refused, the tenant had to file a petition before the Rent Controller for deposit of the rental amount. Thereupon, the landlord had no other alternative except to make an endorsement in the court that he is prepared to receive the amount and consequently, the petition under Section 8(5) of the Act was closed. Since he was not able to get the enhanced rent, he has filed the petition for the requirement of the premises for the use of his wife for business which is not based on bona fide intention.
(c) Even according to the landlord, there is only one sewing machine available in the house. Therefore, the said sewing machine may be for her own use. There is no details in the evidence as to how many sewing machines are going to be purchased and how much investment is proposed to be made and how many workers are going to be employed. In the absence of this evidence, it cannot be said that the wife was already doing business in tailoring and she has got the necessity to have a separate premises for doing the said business in a large - scale.
5. Now, this Court is called upon to go into the merits of the above reasonings to answer the question posed in this case as to whether the landlord is entitled to maintain the petition filed under Section 10(3)(a)(iii) of the Act and consequently, whether the tenants are liable to be evicted on the ground of bona fide personal requirement of the landlord for the purpose of setting up his wife's business.
6. In this context, it is appropriate to go into both the legal and factual situations.
7. Section 10(3) (a) (iii) of the Act reads thus:
10(3)(a): 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. (iii) In case of 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 his own.
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 nonresidential;
(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.
9. But, this section is controlled by Clause (e) wherein it is stated that if the claim of the landlord is bona fide, the controller shall make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the controller and if the controller is not so satisfied, he shall make an order rejecting the application.
10. In the present case, the conditions 1 and 3 do not present any controversy. Admittedly, the premises in question is a non - residential one and either the landlord or his wife is not occupying any other non - residential building of his or her own for the purpose of the business, as it is not disputed by the other side.
11. The difficulties have arisen only in the other conditions, namely, 2 and 4. According to condition No. 2, on the date of the petition, the business must be carried on. According to condition No. 4, there must be bona fide requirement for personal use. Both these things have to be established by the landlord.
12. In the light of the above legal situation, let us now see the factual situation by considering the materials available on record.
13. P.W. 1 the landlord mentioned in the petition for eviction in para 4 as follows:
The petitioner's wife Smt. J.Jayakumari is carrying on a small scale business in making and selling children's Garments in her residence at No. 26/2, Arumugha Acahari Street, Triplicane, Madras - 5 and is helped by her daughter Tmt. Samudeswari in stitching garments. The petitioner's wife intends to enlarge the business in a pucca non - residential premises.
14. By substantiating the above averment mentioned in the petition, P.W.1 would depose that his wife Jayakumari with the help of their daughter who is the Diploma - holder in Costume, Designing and Dress - making has been doing the business in their residential premises, viz., 26/2, Arumugha Achari Street. Triplicane and that she is having one sewing machine and for the present she has been stitching garments for the children of the relatives and neighbours and doing the said business in a Small scale.
15. In order to prove that his daughter was qualified in doing the business of garment making, he has marked Ex. P - 1 the Diploma. It is true that in the cross - examination, P.W.1 the landlord would admit that the said daughter Samudeswari got married in 1988 itself and she has been residing in the same area after marriage along with her husband. According to him, the house of the daughter is situated 500 feet away from their house. R.W.1 the tenant also would admit, though he stated that no business of tailoring was being carried on in the residential premises of the landlord, that there is a sewing machine in the house of the landlord. However, there is no documentary evidence to prove on the date of filing of the petition for eviction, the tailoring business was being carried on in the residential premises.
16. In this context, the question arises whether the evidence of P.W.1 stating that the tailoring business was being carried on in a small - scale through a single sewing machine with the help of the daughter, who is the diploma - holder, in the absence of any documentary evidence, would be sufficient to hold that the condition No. 2 viz., "carrying on business" has been satisfied.
17. The words "carrying on business" have been interpreted in so many decisions rendered by this Court, because these words have got certain legal import. Carrying on need not mean that the landlord must be already actually and actively carrying on the business. If the matter has already passed the stage of a bare intention or desire, and some steps towards its execution have been taken, it is sufficient for the purpose of the provisions. It is not possible to lay down a hard and fast rule as to what that step should be. It would all depend upon the nature of the business, nature of the effort to be employed upon and other relevant factors, which could enable the carrying on such business.
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 Section 10(3)(a)(iii).
19. The above principles have been laid down by this Court in Krishna Reddy v. Vasudevayya , Raju Chettiar v. State of Tamil Nadu and Thiru Chelliah Pandithan v. Smt. Anthoniammal 98 L. W. 66.
20. In the light of the well - laid principles, if we look at the materials available on record through P.W.1 and Ex. P - 1 that the wife has just started the business of stitching the garments for children in a small scale and selling to the neighbours and relatives. This would clearly show that the intention or desire of the wife of the landlord to have the business in the non - residential premises in question had blossomed into the action by some steps taken by them towards its execution, which would certainly suffice for the purpose of the provision.
21. In Krishnasamy Naicker v. Veerabahu Pillai (1990) 2 T.L.N.J. 138, when the premises was required for commencing the commission business, this Court would hold that no elaborate preparations are necessary for the setting up or the establishment of such a business. It would also hold that a name - board, a table and perhaps a chair would be more than adequate to carry on the business and to secure this, no elaborate preparations also are necessary.
22. In yet another decision in Saraswathi alias Sasikala v. Syed Ibrahim . Justice Thanikkachalam (as he then was) would hold that for running a mess to feed about 10 persons mere possession of necessary funds to run the mess would be sufficient to show that the landlady has taken steps in furtherance of starting the business and that it is not necessary to get the licence from the Municipality and to produce vouchers for having purchased vessels and other equipments like mat, etc., as these things could be purchased at any time before obtaining possession of the premises.
23. Similarly, in the present case, the wife has started her business with the help of the daughter, though married, who is residing nearby, and to shift, the said one sewing machine to the premises in question to expand the business of stitching the garments for the children and for that purpose, it is not necessary to make an elaborate arrangements and to give the details of the. proposals as to how many persons are going to be employed and how many sewing machines are going to be purchased, etc. as this has been commenced and the same can be continued in a small scale in the beginning.
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.
25. Under these circumstances, the authorities below by overlooking the legal and factual situations, have committed serious illegality by giving a finding that the landlord has not established the second condition, viz., "carrying on business."
26. Then, we come to the condition No. 4, namely, bona fide requirement for the personal use.
27. On a perusal of the judgments impugned it is revealed that both the authorities have come to the conclusion that it is not a bona fide requirement mainly on the reason that there was a demand for enhanced rent and the same was refused and that therefore, the tenants had to approach the court under Section 8(5) of the Act and that having failed in getting the enhanced rent, the present petition had been filed for eviction under the Garb of requirement for personal use.
28. In the cross - examination of P.W.1, it was suggested that since the demand of the increased rent was not acceded to by the tenants, the petition has been filed mala fide, even though there are other three shops owned by the landlord. This suggestion has been denied. R.W.1 the tenant would state that in 1990 there was a demand for more rent. It was agreed by the tenants to give Rs. 50 more. As this was not agreed by the landlord, money order was sent but it was returned. Thereafter, pay order was sent, But, this was also returned. The returned cover was marked as Ex. R - 2. Subsequently, notices also were sent by the tenants under Exs. R - 4, R - 5 and R - 6. According to the tenants, thereafter, they filed an application under Section 8(5) of the Act to deposit the arrears. On service of the summons, the landlord came and made an endorsement to receive the amount. Consequently, the said petition was closed.
29. The above material was taken by the authorities below to conclude that the petition for eviction was filed without bona fide, as the landlord has failed in getting the enhanced rent from the tenants. On going through the evidence, I am of the view that there is no basis to arrive at such a conclusion.
30. P.W.1 would specifically state that he has never demanded for enhanced rent. As a matter of fact, P.W.1 would admit that in 1984, there was an agreement for five years for the monthly rent of Rs. 350 and in 1989 there was a fresh agreement for the amount of Rs. 437.50 for further five years. Therefore, the plea of the tenants that the enhanced rent was demanded in 1990 cannot be accepted.
31. Moreover, the tenants did not choose to mark the petition filed under Section 8(5) of the Act and certified copy of the endorsement made by the landlord. It is also relevant to notice that in Ex. R - 3, the reply sent by the landlord, no enhanced rent was demanded. Had there been an actual demand for enhanced rent, there would not have been endorsement by the landlord to receive such an amount.
32. According to the landlord, even the original tenant, father of the present tenants, was a chronic defaulter in payment of rent. Even when he was alive, the arrears was about Rs. 5,000. The present tenants while filed application under Section 8(5) of the Act, deposited Rs. 7,000. This would clearly reveal that the tenants were in arrears for about 18 months. Thus, from 1990 onwards, both the original tenant and the present tenants have not paid the rent.
33. The pay order Ex. R - 3 would relate to the year 1991. Only thereafter, the landlord filed the eviction petition for personal use. If actually, there was a demand for increased rent, instead of making an endorsement, the landlord would have filed an application before the tribunal for fixing the fair rent.
34. As indicated earlier, the landlord filed the petition for eviction only in 1992, even though the tenants defaulted in payment of arrears of rent from 1990. Had there been a mala fide intention on the part of the landlord to evict the tenants somehow or the other, he would certainly have filed an application for eviction on the ground of wilful default, since there were arrears of rent for long number of months.
35. Under these circumstances, it cannot be straightway concluded that the eviction petition has been filed bona fide, since the enhanced rent was not agreed to.
36. Even assuming it to be a correct, the Full Bench of this Court in Aishath Najiya v. M/s. Lal Chand Kevalram and others (1989) 2 L.W. 123, held that a demand for higher rent at an early stage would not debar the landlady from claiming eviction on the ground of bona fide requirement of the premises for her own use.
37. This is also reiterated in Dhanapal Chettiar v. Sundaram (1991) 1 M.L.J. 490, that the claim of a higher rent by the landlord on an earlier occasion and the respondents filing a petition for fixation of fair rent by itself would not go to show that the petitioner's requirement of the petition mentioned shops for the business of his son, is not bona fide.
38. Under these circumstances, in either way it cannot be said that the petition was filed with a mala fide intention to evict the tenants from the premises in question
39. Much was said about non - examination of the wife or daughter of the landlord. But, this Court in Munuswamy v. S.S. Nathan 1996 T.L.N.J. 201, would hold that the non - examination of the person for whom it is required cannot be the basis to hold that it is not a bona fide requirement. It all depends upon the credit - worthiness of the evidence let in by the witness before the court, who is seeking for the eviction for requirement of the personal use.
40. In the instant case, once the evidence of P.W.1, the landlord is believed and relied upon, the mere non - examination of wife and daughter would not affect the credibility of the evidence let in. Unless there is a reason to disbelieve the evidence of P.W.1 the landlord, the court need not seek corroboration through the other witnesses concerned.
41. In the present case, as stated earlier, the conclusion that it was not a bona fide was mainly on the fact of having demanded enhanced rent. Both the authorities below, instead of considering the bona fide requirement on the basis of the materials required for analysing the same, staightaway concluded that the petition for eviction was mala fide holding that the demand of enhanced rent was refused earlier.
42. Thus, the cumulative effect of the factual materials which have been overlooked by the authorities below do indicate that steps have been taken by the wife of the landlord to carry on the business and only on that basis the petition for eviction was filed for the personal use and that the alleged demand of increased rent which is not actually established by the tenants will not have any bearing on the main issue raised in the petition.
43. In the above circumstances, it has to be held that the landlord's requirement of the premises in question for the business of his wife is bona fide and the landlord is entitled to an order of eviction in this case.
44. It is true that concurrent finding based on evidence shall not be interfered with by this Court, exercising jurisdiction under Section 25 of the Act. As I indicated earlier, it is not the concurrent finding on facts, but both the authorities below by overlooking the factual materials transgressed the governing principles relating to the bona fides requirement and there is a misconception of the principles to be applied, taking into consideration the relevant factors, under such circumstances, this Court cannot shut its eyes by shirking its jurisdiction of revision to cancel such improper and illegal decisions.
45. I am well aware of the revisional jurisdiction under the Rent Control Act. I am conscious of the fact that I should not re - appreciate the evidence, since I am not sitting in appeal. But, when both the authorities below have ignored the provisions of law and have been too technical in interpreting the sections so as to deny the landlord the benefit of getting an order of eviction, the same has to be necessarily rectified in revision, especially, in my view the revisional jurisdiction is only intended to correct the illegality committed by the authorities below both by misunderstanding the law and also by misinterpreting the evidence available on record.
46. In the result, the civil revision petition is allowed. The judgments of the authorities below are set aside. R.C.O.P.No. 1079 of 1992 filed by the first petitioner for eviction is allowed, allowing the petitioners 2 to 6 (present landlords) to get an eviction of the respondents (tenants) on the ground that the building is required for doing business by the wife, the second petitioner herein.