Madras High Court
The South Indian Bank Ltd. vs Saroja Govindarajan on 23 November, 2000
Equivalent citations: (2001)1MLJ759, AIR 2001 MADRAS 315, (2001) 2 MAD LW 647, (2001) 1 MAD LJ 759, (2001) 2 RENCJ 69
Author: K. Raviraja Pandian
Bench: K. Raviraja Pandian
ORDER K. Raviraja Pandian, J.
1. The above Civil Revision Petition is filed against the order dated 24-2-1998 passed in RCA No. 807 of 1994 on the file of the learned VIII Judge, Small Causes Court, Chennai reversing the order dated 28-2-1994 passed in R.C.O.P. No. 734 of 1991 on the file of the learned XII Judges, Small Causes Court, Chennai.
2. The respondent herein filed the petition under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18/ 1960 as amended by Act 23/1973 for eviction of the petitioner herein for own use.
3. The precise case of the respondent herein is as follows :--
The respondent is the landlord, that the petitioner herein is the tenant in respect of the ground floor in AB Block No. 3, Plot No. 4896, II Avenue, Anna Nagar, Madras 600 040, roughtly measuring about 2,200 sq. feet, that the building is let out for the purpose of carrying on banking business non-residential purpose on a monthly rent of Rs. 10,134/- and the rent is payable according to English calendar month; that the lease was reduced into writing but not registered; and that the period of lease was expired on 31-8-1990. The request of the petitioner herein, for extension of lease was duly rejected by the respondent on the ground that she requires the builing for own use and that the respondent is doing the business of manufacture of electrical light fittings and accessories in Premises No. 21 G. Industrial Estate, Madras 600 058, along with her partner. Apart from that, they were also doing wholesale and retail trade of the manufactured goods, which is carried on in the premises No Y 64 Annanagar, Madras 600 040, in a rented premises.
4. It is also the further case of the respondent herein that both the manufacturing unit as well as the trading unit are housed in the premises, which do not belong to her that she requires the premises for her own use, and she is carrying on the business in a rented premises. Therefore, the respondent issued a notice on 11-8-1990 to the petitioner, requesting them to quit and deliver vacant possession of the petition mentioned premises. The petitioner did not quit and deliver vacant possession. Hence the petition under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
5. The said application has been resisted by the petitioner herein on the ground that the respondent lacks bona fide in her requirement and the real reason for filing the petition is that the respondent has made a steep rise in the monthly rent at the rate of Rs. 9/- per sq. feet, which has been rejected by the petitioner. The present petition has been filed with a motive to evict the petitioner herein, that she needs the premises for her own occupation has no basis and it is a tactics for eviction , that the petitioner herein is a Banking Institution and they are regularly paying the rent to the respondent and that there was a clear understanding between the parties; that the petitioner may be allowed to continue at least for 15 years and that the petitioner's business would be affected if the business place is often changed from place to place. The petition for eviction is only to enhance the rent and to cause hardship and loss to the petitioner.
6. On behalf of the respondent herein, her husband, the power of Attorney holder, was examined as P.W. 1 and her son was examined as P.W. 2 and as many as 27 documents have been marked so as to prove the bona fide requirements of the business. On behalf of the petitioner herein, the Chief Manager was examined as R.W. 1. No document has been marked on the side of the petitioner.
7. The learned Rent Controller after taking into consideration all the averment; contained in the pleadings and the oral and documentary evidence, dismissed the petition. The said order has been taken on appeal before the Appellate Authority by the respondent herein. The Appellate Authority has reversed the findings to the effect that the requirement of the respondent herein is bona fide and as such, the respondent herein is entitled to an order of eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, and as such passed an order for eviction. The said order is now challenged in the present revision petition.
8. The learned counsel Mr. Bhavanantham appearing for the petitioner herein assailed the Order of the Appellate Authority on the grounds that the respondent herein is not carrying on any business and as such, not entitled to the relief under Section 10(3)(a)(iii); that the requirement of the building for partnership business is not maintainable; that the respondent herein failed to prove whether she is an active partner or sleeping partner in the partnership business; that P.W. 1 is the husband of the respondent herein, who is also a power of attorney holder has given the first floor portion at Y. 64, Anna Nagar, free of rent to his daughter whereas he is collecting rent from his wife for doing business in the said premises, which is unimaginable and further contended that the document relied on by the Appellate Authority would not by itself prove the bona fide of the respondent in seeking an eviction and the Appellate Authority failed to note that there is absolutely no evidence apart from Exs. P. 13, 16 and 17. partnership deed, sales tax receipt and Income-tax receipt, which are of the year 1991 and 1993. He also relied on the decisions in Krishnan Nair v. Ghouse Basha and A. Aishath Najiya v. Messrs Lalchand Kewalram reported in (1999) 104 Mad LW 123 : (AIR 1990 Madras 36) (FB). He also relied on a decision in Bashruddin v. P. Somasundaram and P. Nemichand v. T. D. Sundari Bai reported in 2000 AIHC 2483 (Madras) to reinforce his argument.
9. On the other hand, Mr. Bala-subramanian, learned counsel appearing for the respondent has contended that there is overwhelming evidence on the side of the respondent to show that they are doing business and their intention is to have the business in their own building and that the contention of the learned counsel for the petitioner that the non-production of registration certificate of the partnership is fatal, cannot be accepted when the partnership deed itself has, been placed in evidence and the quantum of the evidence so as to prove bona fide under the Rent Control proceedings cannot be equalled with the criminal proceedings to require the respondent to prove her case beyond any reasonable doubt. He also relied on Exs. P2 to P 23 letters requesting the petitioner herein to vacate and hand over the premises as it is required for their personal use and occupation and also Exs. P8 and P9.
10. To sustain his argument, he has relied on the following judgments :--
1. A. Aishath Najiyav. Kewalram, (1989) 104 Mad 123 : (AIR 1990 Madra SCW 36) (FB)
2. Arumuga Chettiarv. Jayaraman, (1995) 2 Mad LJ 282 : (1999 AIHC 4911)
3. Selvaraj v. Amudhavalli, (1999) 3 Mad 661 : (1999 AIHC 3638)
4. Sree Balaji Krishna Hardware Stores v. Srinivasaiah, (1998) 3 Mad 271
5. Kulsumbai Mulla Jeewajee v. Madras Marine P. Ltd., (1984) 1 Mad LJ 399
6. P. Ramasamy v. Kerala Transport Co., (1995) 2 LTC 425
7. Bharat Bhushan Bansal v. U.P. Small Industries Corporation Ltd., Kanupur,
11. Before discussing the contentions raised by the counsel for either side, it is necessary to refer the relevant provision under which the respondent herein sought for eviction of the petitioner. Which reads as follows :--
"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:
(i) in case, it is residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned;
(ii) in case it is a non residential building, which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of any member of his family and if he or any member of his family is not ocupying any such building in the city, town or village concerned, which is own;
(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business, which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned, which is own."
12. The expression "bona fide" is not a meaningless Jargon and it has proper connotation and has been explained by several judgments of the Apex Court. A pari materia provision of Delhi Rent Control Act has been considered by the Supreme Court in the decision in Shiv Sarup Gupta v. Dr. Mashesh Chand Gupta . The Apex Court while considering the bona fide requirement has held thus (para 13) :
"The term "bona fide" refers to a state of mind. The requirement is not mere desire. The degree of intensity contemplated by "requires" is much higher than mere desire. The phrase "required bona fide" is suggestive to legislative intent that a mere desire, which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need, which is an outcome of a sincere honest desire in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or any other member of the family would entitle him to seek ejectment of the tenant. Looked at from any angle, in setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself--whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, the positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance of the landlord."
Thus, the Supreme Court has given a categorical guideline to find out as to the bona fide requirement of the premises by the landlord. The bona fide requirement has to be culled out from the averments contained in the petition and from the evidence adduced in the proceedings and on such objective determination, if it is proved with certain materials, that the requirement is bona fide, then, definitely, under the provisions of the Act, the landlord is entitled to an order of eviction. The proof required for proving the said bona fide is also only to the satisfaction of the Court to arrive at an objective determination and it is not always necessary to prove the bona fide beyond all reasonable doubt as in criminal proceedings.
13. Keeping this principle in mind, let me now consider the contentions raised by the learned counsel for the petitioner herein. The first contention raised by the learned counsel is that the respondent/landlord is not carrying on any business and as such, she is not entitled to the benefit as prayed for, is raised only for rejection. It is the case of the landlady-respondent herein in her petition that she is doing business of manufacture of electrical lights, fittings and accessories in premises at No,21G, Industrial Estate, Madras-58 along with her parents and she is also carrying on the wholesale and retail trade of the manufactured goods in the premises No. Y.64, Anna Nagar, Madras-40. Both the production unit and the trading unit are housed in premises, which do not belong to the petitioner and she is not owning any other non-residential premises and to prove the same, she has filed Ex. P.15- the partnership deed dated 1-9-1979 and also produced Exs. P.2 to P.4 - the rent paid receipts for the premises at 21-G, Industrial Estate, Ambattur and Exs. P.5 to P.7 - the rent paid receipts for the premises at Y.64, Anna Nagar. P.W, 1 also deposed in his evidence and proved that Exs. P.2 to P.4 are the rent receipts for the premises bearing D.No.21G Sidco Industrial Estate, Ambattur, Chennai, wherein the manufacturing unit of the petitioner is carrying on and Exs. P.5 to P.7 are the rent receipts for the payment of rent in respect of the building, Y.64, Anna Nagar, wherein the trading unit is situated and also filed Ex. P. 18 a notice dated 11-8-1990 requiring the demised premises for the petitioner's own occupation and also denied the suggestion that the petition has been filed only to evict the petitioner herein it refused to pay the enhanced rent. In view of this positive evidence, both documentary and oral, it is found that the respondent herein has proved that a partnership concern, in which the respondent is a partner, is carrying on manufacturing business at 21G, Sidco Industrial Estate at Ambattur and further proved that she is also carrying on trading business at Y.64, Anna Nagar and both the said premises are rented premises.
14. The learned counsel Mr. Bhavanantham has contended with all vehemence at his command that except Ex.P. 15,, no other document has been filed to prove that they are doing business at 21.G, Industrial Estate, which has to be rejected in view of the above conclusion of mine that the petitioner has proved that they are doing the business in the above said two places with documentary and oral evidence. The document Ex.P. 15, partnership deed, and Exs.P.2. to P.7 - the rent paid receipts and the oral evidence of P.W. 1 would itself prove the bona fide of the respondent, and in such event what more evidence is required, when it is not the case of the tenant that she has stopped the business subsequently. The contention of the learned counsel Mr. Bhavanantham that the first floor portion in Y.64, Anna Nagar has been let out to the daughter of the petitioner free of rent for her residential occupation and the ground floor portion has been let out to the respondent herein for rent is a circumstance to be taken note of by this Court to come to the conclusion that the case as framed is not bona fide, is also not acceptable, because it is quite common that the parents would accommodate their own son or daughter in their building without receiving any rent for residential purpose. At the same time, if it is for non-residential commercial purpose, by which the user of the building is earning income, even the owner and the person, doing the business in the premises are close relatives, rent for the use the building for non-residential purpose would always be fixed and paid. Hence, the conduct of the parents allowing their own daughter to occupy the residential building without any rent would not in any way militate the issue.
15. The other contention raised by the learned counsel Mr. Bhavanantham is that there is absolutely no proof whether the respondent is an active or sleeping partner, so as to entitle to the relief sought for. For this, the learned counsel appearing for the respondent has contended that this point has not at all been raised before the authorities below, which has also been accepted by Mr. Bhavanantham, cannot be now raised in revision and even assuming for the sake of argument, this contention is available, as per Ex.P. 15, the ratio of capital, profit and loss between the partners is 50:50 and if the respondent is a sleeping partner, the ratio would not be half; as such, the respondent herein cannot be considered as a sleeping partner and has to be construed as an active partner. The contention of Mr. Bhavanantham that the petitioner is an age old lady and suffering from diseases and thus cannot be active partner to any business, cannot advance the case of the petitioner herein, when such contention has not been raised before the authorities below and this Court while exercising jurisdiction under Section 25 of the Act, cannot go into this aspect of the matter and can exercise its power only if it is shown that the judgment of the Appellate Authority is in any way illegal, irregular or improper and if the decision is based on material, for the purpose of arriving at a different conclusion, the evidence cannot be read or re-appreciated. However, in this case, since this point has not been raised before the lower authorities, no decision has been arrived at.
16. Further, under Ex.P.21, a letter dated 29-6-1986, the respondent herein has insisted that the building should be handed over on the expirty of the lease. Thereafter, under Ex.P.22, which is also a letter dated 9-6-1990 wherein request for extension of lease has been rejected and by Ex.P.23, it has been specifically stated as follows : .
"As far as the request of the extension of lease period for further five years, I would very much state that we are not in a position to extend the lease since the premises is essentially required to accommodate our Industrial establishment."
17. Apart from these documents, the evidence of P.Ws. 1 and 2 is also very clear as regards the requirement of the premises. P.W. 1 in his evidence has stated as follows:
(Vernacular matter is omitted -- Ed.) and P.W.2 in his evidence has stated about the registration. If the above said document and the oral evidence as extracted above are taken together, it is evident that the respondent herein is an active partner.
18. Now, let me consider the decision relied on by Mr. Bhavanantham, learned counsel appearing for the petitioner in Krishan Nair v. Ghouse Basha . In that case, the maintainablility of the petition under Section 10(3)(a)(iii) of the Act was questioned as the requirement of the land was not for the landlord or the members of his family, as such, but for two sons who were running a leather business in partnership with the stranger. The Supreme Court held that it is well settled that the partnership has a compendious way of describing those who constitute the firm under Section 4 of the partnership Act. The position would be different if a person carries on business along with the other partners and it was other partners, who actually carried on the business and having regard to the past act of the son and having regard to the share, the Supreme Court has held that the landlord is entitled to the relief sought for under Section 10(3)(a)(iii). In this case also, the petitioner is doing business with his son and the share of the partner is 50:50. In such circumstance, one cannot come to the conclusion that she is only a sleeping partner in the absence of any material. Hence, the decision of the Supreme Court cited supra more supports the case of the respondent than the case of the petitioner.
19. The other decision relied on by the learned counsel is Aishath Najiya v. Lalchand Kewalram reported in (1989) 2 Mad LW 123 :(AIR 1990 Madras 36) (FB) in which it has been held that to maintain a petition under Section 10(3)(a)(iii) by a landlord to accommodate partnership firm, in which family members are partners along with strangers, such member must be directly and substantially invoked in the business, not as a sleeping partner. In view of the reasoning given just above in the very same contention, this decision also would not in any way advance the case of the petitioner.
20. The learned counsel has also relied on a decision in P. Nemicand v. T.D. Sundari Bai reported in 2000 AIHC 2483( Madras) and contended that this Court has power to interfere with the Order of the Appellate Authority under Section 25 if the same is illegal, irregular and improper. Since I have come to the conclusion that the order of the Appellate Authority is not illegal, irregular or improper, the above decision also, in my opinion, would not in any way advance the case of the petitioner.
21. Since I have come to the conclusion that the requirement of the respondent herein is bona fide, and the order of the appellate authority does not call for any interference by this Court, on the basis of the materials on record, I am not considering the judgment cited by Mr. M. Balasubramanian in detail. Moreso, those judgments are about the settled principles as to proving the bona fide requirement of landlord.
In view of the discussion above, I see no reason to interfere with the Order passed by the appellate authority. In the result, the above C.R.P is dismissed. However, there shall be no order as to costs.