Madras High Court
Arumugha Chettiar vs Jayaraman on 17 February, 1995
Equivalent citations: (1995)2MLJ282, 1995 A I H C 4911, (1995) 2 MAD LJ 282
ORDER S.S. Subramani, J.
1. R.C.O.P. No. 19 of 1985 on the file of District Munsif, Cuddalore, was filed by the petitioner herein, for eviction of the respondent on the ground that the non-residential building, which is the subject matter of the proceeding, is bona fide required for his own occupation and also on the ground that the building requires demolition and reconstruction.
2. It is alleged by the petitioner that as per Ex.A-23 partition deed in his family, he obtained ownership over the scheduled property. The respondent herein was the tenant under his father, and, after the petitioner became the landlord, the tenancy has been attorned to him. The rate of rent is Rs. 75 per month.
3. The petitioner contended that himself, his father and other members of the family were conducting jewellery business and the petitioner had experience in conducting jewellery shop. He wants to open a showroom in the scheduled building for which he has requested permission from the concerned authorities. He has also applied before the Assistant Collector, Customs, for getting licence, and he has deposited necessary amount for the said purpose. He has also sought for licence for conducting a shop. But, since no building is available, licence had not been issued. For the purpose of the said business, it is further averred, the existing building has to be demolished and the same has to be reconstructed by putting up a multistoreyed building. It is further averred that he is in possession of sufficient funds for the purpose of opening a showroom and also for the purpose of reconstructing the building. A notice was issued to the petitioner, and from the reply, it is evident that the respondent is not going to surrender the building without recourse to court. Hence, the eviction petition was filed.
4. In the objection, the respondent contended that initially he took the building on a rent of Rs. 3.50 which was subsequently increased from time to time, and, at present, the rent is Rs. 175. It is also alleged in the objection that the petitioner demanded Rs. 300 as rent, which he refused to pay and, therefore, the landlord filed the eviction petition. It is stated that the petitioner has not taken any steps for the purpose of starting a jewellery business and that he is not possessed of any means to start the same or to reconstruct the building. He also contended that there is no necessity for reconstructing the building.
5. Before the Rent Controller, both oral and documentary evidence was adduced. On the side of the petitioner, Exs.A-1 to A-34 were marked. The counter petitioner examined himself as R.W.1. Taking into consideration the entire oral and documentary evidence, the Rent Controller found that the claim of the petitioner that he needs the building for his own occupation is genuine. He has taken steps for starting a business, which will be sufficient for the purpose of claiming eviction. He has got sufficient means for the purpose of investing in the business and also for the purpose of reconstructing the building, and the petitioner has also necessary experience for conducting a jewellery shop. Regarding the claim that the building in question requires immediate demolition and reconstruction, the rent controller found that the building is old and requires immediate demolition and reconstruction. On both the grounds, the eviction petition was allowed.
6. Against the decision, the respondent herein filed R.C.A. No. 32 of 1987, on the file of the Subordinate Judge, Cuddalore. By the impugned judgment, the appellate authority set aside the decision of the rent controller. According to the appellate authority, the revision petitioner is not carrying on business and the eviction petition was filed only when the tenant refused to pay the enhanced rent demanded by the landlord; and that the petitioner has not proved that he has means to invest in jewellery shop and also to effect reconstruction. Ultimately, the appellate authority held that the claim of the landlord that he bona fide requires the building in question for his own use, namely, for conducting business, was lacking in good faith. Regarding the claim for eviction on the ground of reconstruction, the appellate authority found that there is no proof regarding the physical condition of the building, and, for that reason, the claim of the landlord cannot be sustained. In effect, both the grounds on which the eviction-petition was filed were not sustained, and the eviction petition was dismissed. It is against the said decision, the landlord has filed this revision petition.
7. I will first take up the ground of demolition and reconstruction, for decision.
8. The statutory condition for getting an order of eviction on the ground of demolition and reconstruction is that the landlord has to prove by positive evidence that the physical condition of the building is bad, and that it requires immediate demolition and reconstruction. Even though the development of the area, the economic condition of the landlord, etc. are relevant factors, the physical condition of the existing building has to be proved, since that is the primary requirement under the section. The landlord has not proved the physical condition of the building by taking out a commission before the rent controller. Even if the landlord has got the means, and even if he has taken the plan and licence for the purpose of construction, that is not sufficient. The finding of the appellate authority that in the absence of proof regarding the physical condition of the building, eviction cannot be ordered, is therefore sustained.
9. The other ground on which eviction was claimed is, that the landlord needs the building for his own occupation.
10. Exs.A-22 and A-23 are the two partition deeds in the family of the petitioner. Ex.A-22 is in respect of the landed properties. Ex.A-23 is in respect of buildings. It is not disputed that the petitioner was allotted the scheduled building as one of the items under the two partition deeds. Hence he is a landlord. It is also not disputed by the tenant that he used to pay rent after the petitioner became the landlord as per Ex.A-23. But in the counter to the eviction petition, he disputed the right of the petitioner as owner and landlord of the building. In effect the contention of the landlord is that, he has denied the title. Even though denial of title is not made as a ground for eviction before the Rent Controller as well as the appellate authority a Civil Miscellaneous Petition (C.M.P. No. 1272 of 1995) has been filed before this Court, seeking permission to raise an additional ground. The same will be considered at the appropriate place while disposing of this revision.
11. It is not disputed that the petitioner's father is conducting a jewellery shop. The petitioner alleges that he has got experience by assisting his father in the business. Even though the respondent disputed the said claim of the landlord and was cross-examined at length regarding the experience, he withstood the same, and the rent controller has entered a finding that the statement of the petitioner that he has got necessary experience for conducting a jewellery shop has only to be accepted. The appellate authority did not enter a definite finding regarding the experience of the petitioner. It only said that assisting the father and thereby gaining experience is not sufficient to claim eviction. However, the appellate authority has found that the petitioner was assisting his father in the business.
12. The petitioner has alloyed that he has got the necessary means to open a showroom. For starting a jewellery business, a few lakhs will be required. The petitioner has spoken as P.W.1 that he has in his possession more than five lakhs of rupees and that same can be invested at any time. In a rent control proceeding, the petitioner need not produce before court evidence regarding the entire money, to prove his bona fides. What he has to show is his ability to raise the necessary funds if required. That is spoken to by P.W.1. That part, when the counter petitioner was examined, he has stated that the petitioner is a man of means and has got ample properties. He said that he was not aware whether the petitioner was paying income-tax. He also pleaded ignorance whether the petitioner has in his possession lakhs of rupees. In this case, by the production of Exs.A-22 and A-23 the petitioner has proved that he has the capacity to raise necessary funds. From the partition deed Ex.A-22, it can be seen that the petitioner was allotted properties worth nearly Rs. 2 lakhs. Apart, from the same, the property allotted to the petitioner under Ex.A-23 is also available. Taking into consideration the entire evidence and also the admission of the tenant that the petitioner is a man of means, this Court can enter a finding that the petitioner has the capacity to invest necessary funds in case he starts a business. The Rent Controller, who had the opportunity of appreciating the demeanour of the witness, has found that the petitioner can be believed, and that he has got the capacity to raise necessary funds. The appellate authority did not take into consideration the admission of the tenant, which is the best evidence in this case. The appellate authority simply said that the claim of the petitioner that he is in possession of five to six lakhs of rupees cannot be believed. The appellate authority assumed that to prove the funds, documentary evidence will have to be filed. The same is not necessary. As stated earlier, the rent controller must be satisfied about the bona fides and the capacity of the landlord to raise funds. That is proved by the landlord by examining himself as P.W.1 in this case.
13. The locality where the scheduled building is situated, is commercially important. According to the petitioner, in that locality, there are many jewellery shops, and if the scheduled building is given to him, he can open a jewellery shop and conduct the business. From the evidence of R.W.1 also, it is clear that the locality is commercially important and jewellery shops are also established in that place. It has come out in evidence that as per Ex.A-23, the petitioner was allotted some other building also at Vandipalayam. It is submitted by P.W.1 that the shop room situated at Vandipalayam is in the occupation of a tenant and that the said building is not suitable for starting a jewellery shop. In fact, the said statement of the landlord was never disputed by the tenant in his evidence. The appellate authority has not entered a finding regarding the same even though the rent controller has entered a positive finding in favour of the landlord.
14. The most important point that has to be considered in this connection is, whether the petitioner is entitled to get possession of a non residential building. For that, it has to be seen whether the petitioner is 'carrying on business', as contemplated under the statute. The appellate authority has said that the petitioner has not taken any steps and there is no evidence that he is carrying on business. The appellate authority has also found that the petitioner has no case that he is doing any business. Taking that view, he ignored the evidence that was adduced in this case. According to the appellate authority Exs.A-30 and A-31 are of no assistance to come to a conclusion that the petitioner has taken any steps for the purpose of 'carrying on business', In that view, the claim for eviction on the ground of bona fide requirement for own occupation, was negatived.
15. Ex.A-30 is an application made by the petitioner to the Assistant Collector of Central Excise through the Superintendent of Central Excise, requesting that a licence may be issued to him, for the purpose of conducting a jewellery shop. It is dated 21.5.1985. In that petition itself, he has stated that he has deposited the necessary amount for getting the licence and the challan obtained by him was also appended to the representation. Ex.A-31 is the application and the challan receipt is Ex.A-32.
16. For getting licence for conducting a jewellery shop, the petitioner has to show that the building is available, and only after the Authorities under the Gold Control Act are satisfied about the condition of the building a licence can be issued. Before getting possession the petitioner can only apply to the authorities requesting that he may be given a licence and can also inform them that he has deposited the necessary funds. The appellate authority was not satisfied with Exs.A-30 and A-31 on the ground that even though the application was in 1985, no action was taken on the same. The petitioner wanted a licence to conduct business in the scheduled premises which is, admittedly in the possession of the tenant. Hence, without getting possession, to insist on him that he must produce the licence is not legally correct. The petitioner has proved that he has made the application in G.S. Form, for the grant of licence. Even though the same was disputed by the tenant initially, when documentary evidence was produced before the rent controller, he did not pursue his objection later. His only contention thereafter was that since it was more than two years from the date of his application for licence and no licence had been produced, it cannot be said that the petitioner has taken a step for the purpose of 'carrying on business'. The appellate authority assumed that for the purpose of getting possession of a non-residential building, the landlord has to prove that he is 'carrying on business". The appellate authority was of the view that if only the landlord was carrying on business in jewellery, he could evict the tenant. The said assumption by the appellate authority has no legal foundation.
17. In C.R.P. No. 137 of 1955, Basheer Ahmed Sayeed, J. held thus:
As a matter of fact it seems to me that the intention is to give this right of eviction only to such of the landlords as are actually carrying on business and who may require their own non residential building in that connection and not to others who might have had a business or who might think of starting a future business.
The learned Judge was of the view that for the purpose of getting eviction, a literal interpretation of the statute is required. According to the learned Judge, the landlord must be actually carrying on business before seeking eviction of a non-residential building. The said decision was not approved thereafter by our court.
18. In the decision reported in P.N. Raju Chettiar v. The State of Tamil Nadu represented by the Secretary, Home Department (Accommodation Controller) and Ors. (1970)1 M.L.J. 249, the entire case-law has been considered by a Bench of this Court. The expression 'carrying on business' was defined by their Lordships thus:
'Carrying on business' within the meaning of Section 10(3)(a)(iii) 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).
The decision of Basheer Ahmed Sayeed J. in C.R.P. No. 137 of 1955 (supra) was disapproved.
19. Even before the Bench decision in P.N. Raju Chettiar v. The State of Tamil Nadu represented by the Secretary, Home Department (Accommodation Controller) and Ors. (1970)1 M.L.J. 249, it was held by a learned Judge of this Court in the decision reported in Azimuddin Sahib v. Rangaswami Pillai (1958)2 M.L.J. 389, that the wording of the subsection is not quite happy. The learned Judge interpreted the section thus:
Though the wording of the sub-section is not quite happy the expression for the purpose of the business which he is carrying on has to be interpreted, from the context, having regard to the nature of the business and the transaction incidental to it. If bona fide preparation for a business is a foot the business may be regarded as being carried on in many cases.
20. In the decision reported in Mari Ammal v. Kandaswamy 1977 T.L.N.J. 499. Ismail, J. (as he then was) had discussed the entire case law. The learned Judge held, that if it was proved that there was some activity in connection with the starting of a business, the condition under the statute stands satisfied. The learned Judge followed the decision reported in S.N.K. Ramasamy Pillai v. Karmega Thevar (1964)2 M.L.J. 89, wherein it was held thus:
On a careful consideration of the language employed by the section and particularly the words we have extracted and also the view of the several single Judges, we are of the view that while the literal construction placed by Basheer Ahmed Sayeed, J., does not with due respect commend itself to us, the other view appears to be reasonable. We think so because 'carrying on a business' may consist of a series of steps and even if one step is proved, we do not see why the requirement is hot satisfied.
Thus, it will be seen that the decision of this Court in P.N. Raju Chettiar v. The State of Tamil Nadu (1970)1 M.L.J. 249, apart from approving the decision of single Judge in S.N.K. Ramasamy Pillai v. Karmega Thevar (1964)2 M.L.J. 89, is directly opposed to the contention advanced by the learned Counsel for the respondent in this case.
Giving the fullest meaning to the expression "a business which he is carrying on" it is not possible to interpret the expression in the same manner in all cases irrespective of the nature of the business. Certain business may require elaborate preparation and certain other business may not require pay preparation at all. For instance, the business with which we are concerned, viz., a betel-nut business does not require any elaborate preparation at all and all that is required is an intention to start the business and possession of capital, which, admittedly, will be very small, to start the business. It is not as if, for the purpose of having recourse to the particular statutory provision, a landlord must take a building on lease from a third party and commence his business in that building and thereafter apply under Section 10(3)(a)(iii) for getting possession of his own building for the purpose of carrying on that business which till then he was carrying on in a rented building. To construe Section 10(3)(a)(iii) in that manner will be against all notions of commonsense and will not be even in consonance with the object of the Act. Certainly it cannot be the intention of the Act to prevent a landlord whom, for the purpose of eking out his livelihood, wants to carry on a business of his own in his own premises from doing so. That is the reason why the learned Judge in S.N.K. Ramaswamy Pillai v. Karmega Thevar (1964)2 M.L.J. 89, expressly stated that there must be some activity in connection with the starting of the business and the landlord having the capital ready and the intention as well to do business, can be said to have commenced his business. As I pointed out already what exactly is the preparation that is necessary and that would constitute commencement of the business will necessarily depend upon the nature of the particular business which the person proposes to carry on. There are innumerable types of business such as a petty pawn shop or any other petty shop for selling common articles for which no elaborate preparation is necessary. It is enough for the person to buy the articles in which he wants to do business and offer them for sale, keeping that same in a particular place. In such a context, it cannot be contended that the landlord must take a building on lease from some other person and start the business and carry on the business there for some time and thereafter alone have recourse to Section 10(3)(a)(iii) of the Act. Therefore, in my opinion, none of the decisions relied on by the learned Counsel for the petitioner support his contention that before a person could obtain relief under Section 10(3)(a)(iii) he must actually carry on business in a place which did not belong to him.
21. In the decision reported in K. Gopalan Nair v. V. Kamalammal (1981)1 M.L.J. 40, it was held that 'carrying on business' may consist of a series of steps, and even if one step was proved, the requirement of the building for the purposes would be satisfied. But if there was no step at ail taken and the matter was only in the stage of intention, it was difficult to bring such a case within Section 10(3)(a)(iii) of the Rent Control Act.
22. In the decision reported in Saraswathi alias Sasikala v. Syed Ibrahim (1993)1 M.L.J. 321, even possession of funds was held to be sufficient as one step to start a business. In that case, a landlady, wanted to conduct a small hotel in the tenanted premises. The only evidence that was let in was that she was in possession of some funds for that purpose. It was held that possession of sufficient funds to start a business. (in that case a petty mess), was sufficient to show that the landlady has taken one step for the purpose of starting a business.
23. In the decision reported in T. Anandan v. Noorjahan (1994)1 M.L.J. 657, also, a learned Judge of this Court has considered the entire case-law and held that 'carrying on business' does not mean 'actually carrying on business,' but only taking some steps for (he purpose of carrying on business. The learned Judge followed the earlier decisions and held that even one step taken by a landlord to start a business will be sufficient to attract the provisions of the section.
24. In the decision reported in Thiru Chelliah Pandian v. Tmt. Anthoniammal and two others, 98 L.W. 666, it was held thus:
It would be extremely hard to construe Section 10(3)(a)(iii) of 1960 Act, as to mean that if the landlords want to start their own business they must first start the business in rented premises, taken on rent from somebody else, and then they should take proceedings for eviction of the tenant on the ground that they require the premises for running their own business.
After stating as above, the learned Judge following the earlier decisions and held that the bona fide of the landlord will stand proved if he has taken one step for the purpose of carrying on business.
25. On the basis of the above precedents which are binding on me, it has to be held that the finding of the appellate authority that the petitioner is not entitled to an order of eviction since he is not carrying on business, cannot be supported. The finding of the appellate authority that the petitioner has not taken any step for the said purpose is also against the evidence that has been let in this case. The petitioner has proved all the ingredients under the section. The only other ground that requires consideration is, whether the landlord has proved his bona fides when he claims eviction of the tenant. The landlord wants to start business of his own for the purpose of getting income. At present, he is depending on his father even though he is possessed of assets. The intention of a youngman who intends to start a business of his own and wants to be independent from his father cannot be said to be lacking in good faith. The only ground on which the bona fides is challenged by the tenant is that the landlord demanded higher rent and when the same was refused to be paid by him, the eviction petition was filed. The Rent Controller has taken into consideration the entire evidence in this case and has found that the said contention of the tenant is not correct. The appellate authority did not enter a finding whether there was such a demand. It only said that there is such a contention by the tenant. In this case, before the eviction proceedings started, the petitioner issued a registered notice evidenced by Ex.A-19. The same was replied by the tenant under Ex.A-20. In the reply notice, he has no such case that the landlord demanded a higher rent. In the objection filed by him, he stated that the landlord demanded an increased rent of Rs. 300 The date or the month in which such demand was made is not stated. While in the box he said that the demand was made between Rs. 300 and Rs. 500 it is not stated so in the objection. When a specific question was asked, he said that originally a demand was made for Rs. 500 and later the demand was reduced to Rs. 300 and that he and the landlord alone were present when the said demands were made. The rent controller who had the opportunity to appreciate the demeanour, has stated that the evidence of R.W.1 cannot be believed. It is clear that the said contention has been taken only for the purpose of this case. The landlord, who was examined as P.W.1, has denied any such demand. When the only ground on which the bona fides were questioned is found against the tenant and the conduct of the landlord also does not show any ulterior motive, it has to be held that the landlord has come to court with clean hands and is entitled to get an order of eviction against the tenant.
26. In K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu , the question how the bona fides of the landlord has to be arrived at, has been stated by the Apex Court thus:
The bona fide requirement is required to be considered objectively with reference to the materials on record and it is necessary to determine the real intention of the landlord on the basis of evidence adduced in a case. If the materials on record clearly justify a case of bona fide requirement, there will be no occasion for the court to hold that the landlord did not require the premises bona fide simply because on a previous occasion the action of the landlord for bringing an eviction case was not bona fide. Cause for eviction is a recurring cause of action and even if the existence of such cause of action had not been found in a previous proceeding for eviction, the same cannot be discarded if such claim is established by cogent evidence adduced by the landlord in a subsequent proceeding. It will not be correct to hold that only because after a tenant was evicted by the landlord on the ground of reasonable requirement for building and reconstruction the landlord did not make the alleged reconstruction but let out the premises to another tenant after obtaining possession, any subsequent eviction case for the said premises deserves to be dismissed in limine. The landlord may bring an action for eviction of the tenant or subsequent cause of action justifying a cause of bona fide requirement. Similarly, rejection of a case for building and reconstruction by itself will not disentitle the landlord to get an order of eviction if such ground can be founded in a changed circumstances.
That is a case where in the previous proceedings between the same parties, the landlord failed. Even in such a case, their Lordships, held that the bona fides cannot be questioned merely because of the previous litigation, or due to the strained relationship between the parties.
27. The learned Counsel for the respondent contended that even if the finding of the appellate authority is not correct the revisional jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prohibits interference unless grounds are made out under that section. According to the learned Counsel this Court is not to re-appreciate the evidence, and even if a different finding could be arrived on the basis of the evidence, since the powers are restricted under the revisional jurisdiction, interference is not called for. The sum and substance of his contention is that this Court is not a second court of first appeal.
28. Section 25 of the Rent Control Act empowers this Court to interfere in the orders of the appellate authority in case the said order is irregular, illegal or improper. When the appellate authority has not taken into consideration the binding precedents of this 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 by the appellate authority can be said to be irregular. The appellate authority has also not considered the evidence that was let in this case. Being the final court on the question of fact, it should have appreciated the evidence that has been let in this case. It has failed to do so. The said procedure adopted by the appellate authority is illegal. For all these reasons, I hold that the finding of the appellate authority is illegal, improper and irregular, and that this Court is entitled to revise the order. This Court is not re-appreciating 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. Hence, the said contention of the learned Counsel for the respondent is repelled.
29. In the earlier portion of this order, I have said that the revision petitioner has filed C.M.P. No. 1272 of 1995 seeking permission to raise additional grounds. In the counter, the tenant has a case that the petitioner is not the landlord and he is not the owner. According to the landlord, the said contention amounts to denial of title, and without directing the landlord to seek relief in other proceedings, he may be allowed to get a finding on this aspect in this proceeding itself. For this purpose, he relied on the decision reported in Majati Subbarao v. P. V. K. Krishana Rao (deceased) by L.Rs. . In that case, it was held by the Apex Court that the landlord need not be asked to file another application, if there is a denial of title in the course of the eviction petition itself, and that will be a ground for ordering eviction. But, from a reading of the entire objection of the tenant it cannot be said that there is a denial of title. Of course, he denied that the landlord has obtained title over the building as per Ex.A-23 partition deed. But from a reading of the subsequent paragraphs, it can be seen that he has been paying rent and he accepts the petitioner as his landlord. He has also contended that the landlord demanded higher rent, but he refused to pay. So, taking all these things together, it cannot be said that the tenant has denied title as contemplated under the Act. Hence, there is no necessity to raise additional ground, and accordingly, C.M.P. No. 1272 of 1955 is dismissed.
30. In C.M.P. No. 17840 of 1994, the respondent herein has sought permission to mark certain documents as additional evidence in this revision. According to me, no ground has been made out to receive the documents in evidence in this Revision. Accordingly C.M.P. No. 17840 of 1984 is dismissed.
31. In the result, I hold that the revision petition is entitled to succeed, and I allow the revision petition in part holding that the petitioner is entitled to get eviction on the ground that he requires the building in question for his own occupation. The claim of the landlord that he requires the building in question for demolition and reconstruction is rejected. The civil revision petition is allowed is indicated above, with costs throughout.
32. After the Order was pronounced, the learned Counsel for the respondent (tenant) wanted that his client may be granted some time to surrender vacant possession of the building. The learned Counsel for the landlord was also heard.
33. Taking into consideration the fact that the tenant was in the demised premises for the last so many years, I grant him four months time from to-day on condition that he will file an affidavit of undertaking before this Court within two weeks from to-day. If the tenant fails to file the affidavit of undertaking within the given time, the landlord is entitled to get possession through court irrespective of the time granted.