Madras High Court
Sivanraj vs Essakkimuthu on 24 March, 1999
Equivalent citations: 1999(2)CTC215
ORDER
1. Both these revisions arise under Tamil Nadu Buildings Lease and Rent Control, Act, Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as the Act). The parties are the same. The defeated tenant is the revision petitioner in both cases and landlord is the respondent. The parties will be referred to as tenant and landlord for purpose of the judgment.
2. In C.R.P.No.370 of 1999 eviction was sought on the ground of own occupation/additional accommodation under sections 10(3)(a)(iii) and, 10(3)(a) of the Act. The other revision petition is against the order of eviction passed by the authorities below on the ground of wilful default.
3. One Essakkimuthu Konar filed R.C.O.P.No.52 of 1994 under sections 10(3)(a)(iii) and 10(3)(c) of the Act. He died pending proceedings and his son, the respondent herein came on record as the second petitioner in the eviction proceedings. The averments in the petition for eviction are as follows:
Essakkimuthu Konar was suffering from diabetes. He had a set back in business. He wanted to change the line of business, He wanted to start a furniture mart. Door No.4 was already in his possession. Door No.5 which is the property subject matter of the proceedings, is in the occupation of the petitioner/tenant. Only a wall separates the two door numbers. It is a single building and has been subdivided into two properties with two different door numbers. Door No.4 was not sufficient to run the business of furniture mart.
4. The tenant resisted the proceedings contending inter alia that the requirement for own accommodation/additional accommodation was not bona fide. With a view to get more rent the present eviction proceedings had been initiated. Essakkimuthu Konar was not running any shop in door No.4. In February, 1994 the very same building was let out to one S.M.Steel House. He never demanded to surrender vacant possession. The tenant had paid an advance of Rs.5,000. The Landlord attempted to throw him out by other means necessitating the filing of a suit for injunction in C.R.P.No.274 of 1994 and he also obtained injunction and the suit was dismissed on the landlord making an endorsement that he would not throw out the tenant except by due process of law. The Landlord should have asked for the first floor portion for additional accommodation.
5. The Learned Rent Controller accepted the case of the landlord and ordered eviction. The tenant's appeal in R.C.A.No.41 of 1996 was dismissed by the Appellate Authority, viz, the Principal Subordinate Judge, Thirunelvelli. Against the order in the R.C.A. the present revision has been filed.
6. Mr. T.R. Rajaraman, learned Counsel for the revision petitioner made the following submissions:
(1) This is a case where 10(3)(a)(iii) will not apply and 10(3)(c) alone will apply and if it is 10(3)(c) it must be shown that the landlord is carrying on business and in the instant case it has not been shown that the landlord was carrying on business on the date of the eviction petition.
(2) Both the authorities below have not considered the relative hardship that would be caused to the tenant.
On this point the learned Counsel relied on the following decisions:
(a) Shir Balaganesan Metals v. N.N. Shanmugham Chetty and others, ; (b) M/s. Nilgiri Dairy Farm v. Manoharan, 1978 (I) MLJ 357; (c) M/s Associated Traders v. T.N.A. Abdul Hameed, 1983 (96) LW 566 and (d) Hindustan Petroleum Corporation Ltd. v. B. Saravanan and 7 others, 1997 (2) LW 81.
7. Mr. Peppin Fernando, learned counsel for the landlord, submitted that there is abundant material to show that the landlord was carrying on business on the date of the petition and in any event, he had taken at least one step in this direction. He had procured invoices for furniture from various agencies and the decisions of the Supreme Court and this Court have clearly held that a significant step for carrying on business would be enough to entitle the landlord to seek eviction on the ground of additional accommodation. The learned counsel further submitted that the two authorities have concurrently found that the landlord had made out a case for eviction under the relevant provisions and sitting in revision under Section 25 of the Act there is no warrant for interference. There cannot be reappreciation of the oral and documentary evidence by the High Court.
8. The petition has been filed under both the sections. The parties had indeed understood that it was only under Section 10(5)(c) and had in evidence. The question for consideration is whether any step had been taken by the landlord to say that he is carrying on business in the premises. The further question would be hardship that may be caused to the tenant by reason of his being asked to vacate the premises. If it is found against the revision petitioner on the above two points and the requirements for invoking section 25 are not satisfied, the petitioner has to fail.
9. Before proceeding further let us refer to some of the authorities touching the point.
10. In P.N. Raju Chettiar v. The State of Tamil Nadu rep. by the Secretary, Home Department and others, 1970 (I) MLJ 249 (DB) the Bench has held that, ""Carrying on business" within the meaning of section 10(3)(a)(ii) may consist of a series of steps and even if one step is proved, the requirement of the section would be satisfied. But if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case under Section 10(3)(a)(iii). Thus, short of any tangible concrete indication of commencement of a business, mere intention to carry on business will not enable the landlord to resort to section 10(3)(a)(iii)."
11. In M/s. Nilgiri Dairy Farm v. Manoharan, 1978 (I) MLJ 357 the learned single Judge has pointed out the difference between section 10(3)(a)(iii) and Section 10(3)(c) of the Act in the following words:
"It cannot be said that the words "carrying on business" occurring in Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act should be construed in the same manner as similar words in Section 10(5)(a) in the Act, for two reasons. The first is that Section 10(3)(c) deals with additional accommodation which implies that accommodation which is already in the occupation of the landlord for the purpose of the business which he is carrying on is not sufficient, necessitating additional accommodation by evicting tenants from other portions of the the same building which are in their occupation; the second is that the question of relative hardship or advantage does not arise for consideration in cases governed by Section 10(3)(a) of the Act, while it does arise for consideration in cases governed by Section 10(3)(c) of the Act. The proviso to that section provides that in the case of an application under clause (c), the Rent Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord."
As regards the question of relative hardship the present position as set down by the Supreme Court is that in both cases whether it is Section 10(3)(a)(iii) or section 10(3)(c) the court has to go into the question of relative hardship.
12. In M/s. Associated Traders v. T.M.A. Abdul Hameed, 1983 (96) LW 566 a Bench of this Court has held that.
"in order to maintain a petition under Section 10(3)(c) of the Act, the, landlord must be in occupation of a portion of the building for the non-residential purpose and he must require the portion of the same building which is in the occupation of the tenant by way of additional accommodation for the purpose of his business, (which he is carrying on)."
13. In Hindustan Petroleum Corporation Ltd., v. P. Saravanan and 7 others, 1997 (II) LW 81 it has been held by S.S. Subramani, J. as follows:
"For bond fide own occupation, a landlord is entitled to get an order of eviction under Section 10(3)(a)(iii) of the Act. If it is a case of additional accommodation, eviction is sought for under section 10(3)(c) of the Act. But, one thing that is made for bona fide own occupation. If the landlord wanted to retain the existing building for his own occupation and wants to get possession of an additional space, that will be a case coming under Section 10(3)(c) of the Act, i.e. the present premises in his occupation is insufficient for his requirements. If the landlord wants to transplant himself from the present occupation and wants to occupy that portion of the premises occupied by the tenant, it will be a case of own occupation, coming under Section 10(3)(a)(iii) of the act. This is the difference between the two sections ..... It is only when the landlord says that he cannot meet the requirements or that the portion presently in his occupation is not sufficient for his needs, and he also wants to occupy that portion of the building occupied by the tenant, it squarely comes under Section 10(3)(c) of the Act. That means, the structure or building must be occupied both by landlord and tenant. It is the occupation of both landlord and tenant in one structure that is contemplated under Section 10(3)(c). It is not the ownership of the building that matters."
14. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others, it has been held as follows:
"In so for as Section 10(3)(c) is concerned the Legislature has intended that the entire building, irrespective of one portions being occupied by the landlord and the other portion or portion being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. To import the expansive definition of the word "building" in Section 2(2) into Section 10(3)(c) would result in rendering meaningless the words "part of a building" occupied by the landlord and a tenant" occupying the whole or any portion of the remaining part of the building". If a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since Section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation for the landlord either for residential or non-residential purposes."
15. In Arumugha Chettiar v. Jayaraman, 1995 (II) MLJ 282 S.S. Subramani, J. has followed P.N. Raju Chetttiar v. The State of Tamil Nadu rep. by the Secretary, Home Department and others, 1970 (I) MLJ 249.
16. It has been held in P. Anandan v. Noorjahan, 1994 (I) MLJ 657 that, ""Carrying on business" does not mean 'actually carrying on business', but only taking some steps for the purpose of carrying on business. Even if one step is taken by a landlord to start a business it would be sufficient to attract the provisions of the section."
17. Bearing the above principles in mind, let us examine the case on hand. The landlord as P.W.1 while being examined in chief, stated that he had obtained quotations for the price of furniture from various companies and these quotations have been marked as Ex.P-1 series. One Ranganathan has been examined as P.W.2 and he has stated that he obtained quotations from various companies and supplied the same to the landlord for the purpose of starting a business in furniture items. This, according to the authorities below, is a significant step towards the intention of the landlord to carry on business in the portion occupied by the tenant. It is in evidence that the deceased Essakkimuthu Konar was carrying on business in Door No.4, that he incurred loss and he wanted to change his line of business and the business in furniture items was thought of. The landlord has already in his possession a portion of the building, viz., Door No.4 and it is not disputed that Door Nos. 4 and 5 together form a single building separated by a wall and there is clear evidence to the fact that the wall could be removed and the whole area could be used for the purpose of the landlord's furniture business. Absolutely no want of bona fides could be inferred from what the landlord has done in the said case. An attempt was made by the tenant to show that a portion of the building fell vacant and the landlord instead of occupying that portion let out the same to one S.M. Steel House. However, subsequently the tenant had to admit that the so called subsequent tenant S.K. Steels was not in occupation of any portion of the building. As already stated, it is not possible to infer any lack or want of bona fides on the part of the landlord in seeking eviction of the tenant from the premises.
18. The next question relates to the relative hardship. Whether the hardship that may be caused to the tenant would outweigh the advantage to the landlord. It is submitted by the learned Counsel for the revision petitioner that the authorities below have not considered this aspect at all. No doubt, the Appellate Authority has not dealt with this question. Apparently, this was not urged before the Appellate Authority. Even otherwise, it has been held by K. Govindarajan, J. in T. Easwara Rao v. N.E. Ansari (deceased) and six others, that even if the Appellate Authority had not given a specific finding regarding comparative hardship, while confirming the findings of the Rent Controller, the finding of the Rent Controller that hardship of the tenant will not outweigh the advantage to the landlord is sufficient compliance of the requirement of the section and the order of eviction passed by the authorities cannot be taken exception to.
19. In the present case, on the question of hardship the Rent Controller has discussed this point elaborately in paragraph 12 of his judgment. It is worthwhile to reproduce what the learned Rent Controller has stated in the said paragraph.
The Rent Controller has further found that the tenant had not substantiated his case that he invested Rs.1 lakh in the business by producing his sales tax records and his accounts, that it was highly doubtful that the tenant would have invested a lakh of rupees in his business, that he had also stated that his business had not gone up or gone down eversince the date of its commencement and therefore it was not possible to hold that the hardship that might be caused to him would outweigh the advantage to the landlord. Both the authorities below have concurrently held that a case had been made out under section 10(3)(c) of the Act.
20. In B. Kandasamy Reddiar and others v. Gomathi Ammal, the Supreme Court has held that consideration of comparative hardship is mandatory requirement in accordance with proviso to section 10(3)(c) of the Act and in the instant case it had been considered by the Rent Controller.
21. In Mookkan v. Abdul Rasheeth (deceased) and others, 1999 (I) MLJ 233 P.D. Dinakaran, J. said that, "relative hardship should not be weighed on a delicate scale, giving the benefit of slight tilt in favour of a tenant and that in view of the well settled proposition it is for the landlord to choose the portion for his additional accommodation and it is not for the tenant to dictate or direct the landlord to take such and such portion for additional accommodation."
It is also not the case of the tenant that the landlord is not possessed of sufficient funds to carry on his business.
22. In Rukmani v. Deivasigamani, 1973 TLNJ 172 this Court held that, "though the power conferred on the revisional court under Section 25 is wider than the power conferred on the High Court under Section 115 C.P.C. the revisional court acting under Section 25 of the Act will not be justified in reappreciating the oral evidence. It may be open to the revisional court to reverse the finding of fact on oral evidence, if there was no material whatever on which the appellate court would have arrived at the finding or on the ground that the finding was perverse."
23. In Battonpant Gopalvarao Devankate v. Vithalrao Marutirao, the Supreme Court dealing with the Mysore Rent Control Act, Section 50 observed as follows:
"Though the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of the Code of Civil procedure it is not wide enough to make the High Court a second court of first appeal.
Where the findings of fact recorded by the Appellate Court were not found to be such by the High Court as to justify the exercise of its revisional power under Section 50, held that there were no such pressing grounds which would justify the Supreme Court upsetting the views of the High Court confirming those of the lower Appellate Court."
24. In A. Ganesan v. Amaravathanmmal, 1983 (II) MLJ 505 after referring to the decision of the Supreme Court in Sri Rajalakshmi Dyeing Works v. Rangaswamy, wherein it has been observed that, "even though Section 25 of Tamil Nadu Act XVIII of 1960 is wider than section 115 of the Code of Civil Procedure, and the wordings only indicate the supervisory powers of the High Court in revision and such powers shall not be exercised as a Court of appeal while sitting in revision under the said section 25 of Act XVIII of 1960, Fakkir Mohammed, J. observed that wherever two views are possible on the same set of facts, it will not be correct for the High Court sitting in revision to reverse the view of the appellate authority passed on the same set of facts under Section 25 of the Tamil Nadu Act XVIII of 1960."
25. In Shri Balaganesan Metals's Case, already referred to the Supreme Court on the scope of Section 25 of the Act observed that, "Where the Appellate Authority had applied wrong tests and had also failed to give effect to unchallenged findings of the Rent Controller, the order of the Appellate Authority suffered from manifest errors in the exercise of its jurisdiction and the High Court was, therefore, entitled to interfere in revision."
26. Again in Hirala Kapur v. Prabhu Choudhary, dealing with the scope of Section 25-B(8) of the Delhi Rent Control Act, 1958, the Supreme Court held that even in mixed question of fact and law, the High Court was not justified in reversing findings of fact of Rent Controller.
27. In N.L. Adhinarayanan v. B. Krishnamoorthy, 1990 (II) MLJ 34, Nainar Sundaram, J. (as the learned Judge then was) after referring to a number of Supreme Court decisions observed as follows:
"The expression 'to satisfy itself' according to Section 25 of the Act conveys only an idea of conferment in the High Court a power of superintendence; and though the language of Section 25 is very wide, yet it is not wide enough to enable this Court to interfere with the findings of facts; merely because it is possible for this Court not to agree with the findings of facts rendered by the Subordinate Authorities. That would be practically converting this Court into 'a second court of first appeal'. The findings of fact are concurrent by the forums below. Equally so, merely because there is a possibility of saying that the question is a mixed question of fact and law, is not sufficient to warrant the exercise of revisional powers."
28. In Rajagopala Iyer v. Top in Town Dry Cleaners, 1991 (II) MLJ 167 Venkataswami, J. (as the learned Judge then was) held that, "a concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in the view of the court a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act,."
29. In Arumugha Chettiar v. Jayaraman, 1995 (2) MLJ 282, already referred to, on the scope of Section 25 of the Rent Control Act the learned Judge held that, "It empowers the High Court to interfere with the orders of the Appellate Authority in case the said order is irregular illegal or improper. When the Appellate Authority has not taken into a consideration the binding precedents of the High Court and has also not taken into consideration the evidence that is let in, it can be said that the order of the Appellate Authority is improper. The Appellate Authority has also not entered findings on many points which have been considered by the Rent Controller. The procedure adopted can be said to be irregular. For all these reasons it must be held that the finding of the Appellate Authority is illegal, improper and irregular and this Court is entitled to revise the order. This Court is not reappreeinting the evidence. It is only bringing to the notice of the parties that such an evidence has been let in, and on the basis of the evidence and binding precedents only such a conclusion could be arrived at."
30. In Gurbachan Singh (dead) through L.Rs. v. Saliabi @ Bibijan, 1995 Supp. (4) SCC 438 the Supreme Court has observed as follows:
"Appreciation of the evidence is not the task of the High Court in exercise of its revisional power, and the High Court in revision cannot re-appreciate the evidence and reverse the conclusions concurrently reached by the courts below."
31. In Sherwood Educational Society v. Abid Namazie and two others, 1997 (I) MLJ 443 S.S. Subramani, J. has reiterated the same principles, that is interference is possible only if judgment of Appellant Authority is illegal, irregular or improper.
32. In P. Sriramamurthy v. Vasantha Raman, 1997 (II) LW 64 the Supreme Court affirmed the decision of the High Court on a different ground, viz. owner's occupation. Though it had not been raised before the authorities below, the Supreme Court mounded the relief on the basis of subsequent events.
33. Again in M/s. Boston and others v. Akbar and others, 1998 (I) MLJ 270 S.S. Subramani, J. has observed as follows:
"The question whether the buildings is required bona fide by the landlords for their own occupation is a question of fact or at the most, is a mixed question of law and fact. If findings are rendered by the Rent controller one way or the other and affirmed by the Appellate Authority after evaluating the evidence while exercising powers under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court is not entitled to reverse those findings of fact."
34. In Rengaiyan v. Noorullah, 1996 (I) MLJ 210 Abdul Wahab, J. has subscribed to the same view.
35. In Kuthalingam v. Jahir Hussain, 1997 (II) MLJ 496 AR. Lakshman, J. has held that, "finding of fact by Appellate Authority on the basis of evidence is not liable to be interfered with in revision."
36. In the instant case, the authorities below have considered all the aspects of the matter and found as a question of fact that the landlord has made out a case for section 10(3)(c) of the Act and having regard to the scope of Section 25 of the Act as held by several decisions of this Court and Supreme Court, there is no warrant for interference under Section 25 of the Act. I have also satisfied myself as to the bona fide nature of the requirement of the landlord. I am also satisfied that the hardship that may be caused to the tenant will not outweigh the advantage that may be caused to the landlord. The authorities below have applied the proper test and there are no manifest errors in the conclusion reached by the authorities below on the basis of the oral and documentary evidence. There is no irregular, illegal or improper exercise of the powers by the Rent controller and the Appellate Authority. Consequently, it has to be held that there are no merits in the civil revision petition, C.R.P. No.370 of 1999, is liable to be dismissed.
37. So far as the other civil revision petition is concerned, viz. C.R.P.No.419 of 1999 it is a clear case where Section 25 has got to be invoked in favour of the tenant. This is a case where the landlord came forward with an allegation that the tenant had committed wilful default. Admittedly, the landlord had with him an advance of Rs.5,000. Under Section 7 of the Rent Control Act the landlord is entitled to keep with him an advance of a month's rent alone. Any amount which is in excess of more than a month's rent will have to go towards adjustment of future rent due from the tenant. Realising this position the landlord made an attempt to send back the amount lying with him as advance to the tenant. The tenant in his turn sent back the draft. The authorities below did not take into consideration that the landlord had more than what was permitted by law to keep with him as advance.
38. This position is well settled by the decisions of the Supreme Court in Modern Hotel v. K. Radhakrishnaiah and others, , K. Narasimharao v. T.M. Nasimuddin Ahmed, and Nazimudhin Ahmed v. Narasimha Rao, 1995 (II) MLJ 39.
39. The Supreme Court in the Modem Hotel Case, though it arose under Section 7 (2) of the Andhra Pradesh Act, held as follows:
"Mr. Rao building upon the ratio of these two decisions rightly contended before us that when the landlord had Rs.5,000 on tenant's account with him which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent. In view of the fact that the stipulation that the amount would be refundable at the end of the tenancy is null and void under Section 7(3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs.5,000 of the tenant with him could not contend that the tenant was in default for a similar amount by not paying the rent for some months."
This decision in Modern Hotel case, was subsequently followed in Nazimuddhin Ahmed v. Narasimha Rao's case, 1995 (II) MLJ 39 already referred to.
40 The landlord is bound to adjust the excess amount of advance towards rent due from the tenant and the tenant in such a situation cannot be held to be a wilful defaulter in payment of rent. The situation in our case is almost identical. Following the decisions of the Supreme Court and our High Court it has to be held that the decision of the authorities below is irregular and improper on this point and this Court is entitled to exercise its powers under section 25 of the Act.
41. Consequently, C.R.P. No.419 of 1999 will stand allowed and C.R.P. No.370 of 1999 is dismissed. However, having regard to the finding in the other civil revision petition, the order of eviction against the tenant has to be upheld. The tenant is granted six months time to vacate the premises, subject to his filing an affidavit of undertaking with the usual default clause. The affidavit to be filed within a period of two weeks from today. There will be no order as to costs. Consequently, C.M.P.No.1919 and 2102 of 1999 are closed.