Madras High Court
Lipton India Limited vs Smt. M.M.K. Sara Uma on 25 February, 1988
Equivalent citations: (1988)2MLJ262
Author: M. Srinivasan
Bench: M. Srinivasan
ORDER M. Srinivasan, J.
1. This revision petition arises out of a petition for eviction filed by the respondent herein under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
2. The respondent sought for eviction on the averment that she was carrying on business under the name and style of 'Prince Hardwares' in partnership with some others. According to the respondent her business was being carried on in a rented premises at No. 156 Rasappa Chetty Street, Madras-1 and the tenancy therefor stood in the name of one of the partners, namely M.A. Hassan. It is alleged in the petition that the owners of the premises in which the respondent's business was being carried on filed a suit C.S.No. 10774 of 1978 on the file of the City Civil Court, Madras for eviction and also for damages and that the suit was pending. It was, therefore, the case of the respondent that there was immediate necessity for the respondent to get possession of the petition premises from the petitioner herein which is admittedly a tenant under the respondent.
3. The petition was resisted by the petitioner on the ground that the claim of the respondent was not bona fide and that the need of the petitioner for the petition premises was greater than the requirement of the respondent.
4. All the averment made in the petition for eviction were denied by the petitioner in the counter statement.
5. The Rent Controller accepted the case of the respondent holding that the respondent was parrying on business in partnership with others in a rented premises and that she was under threat of eviction in a suit filed by the owner of the premises. The Rent Controller found that the respondent required the petition premiss bona fide for the purpose of her partnership business. Consequently, the Rent Controller ordered eviction.
6. On appeal, the Appellate Authority confirmed the said order of the Rent Controller and held that the requirement of the respondent was bona fide.
7. In this revision petition, several grounds were urged by learned Counsel for the petitioner. The first contention is that the respondent was in possession of the first floor of the petition-premises for more than a year prior to the date on which evidence was recorded, in the present proceedings. Learned Counsel relies upon the evidence of P.W.1 in which it is stated that the area of the first floor and the area of the ground floor are equal. P.W.1 admitted that the entire first floor was vacant and it was in the possession of the respondent It is argued by learned Counsel for the petitioner that the first floor of the petition premises was non-residential premises and consequently, the respondent was not entitled to maintain the present petition for eviction. He relies upon the evidence of R.W.1 in which it is stated that the first floor is vacant for a year. In the next sentence, the deposition of R.W.1 reads; "that is godown area" It is argued that R.W.1 has only referred to the first floor as godown area. It is, therefore, contended vehemently that there is positive evidence on the side of the petitioner that the first floor is non-residential premises. For contra, it is contended by learned Counsel the respondent that the statement by R.W.1 referred to above is with reference to the locality and not the first floor as such. It is common knowledge that the locality in which the petition premises are situated is largely used as godown area by business people. Learned Counsel for the respondent draws my attention to the evidence of P.W.1 to the effect that the respondent whenever she goes over to Madras used to stay in the first floor. It is also stated by P.W.1 that the boys working in the partnership business of the respondent also stay in the first floor. Learned Counsel also relies upon the evidence of R.W.1 wherein he had stated that in the first floor, people belonging to Muslim religion were staying. R.W.1 has also stated that the respondent was frequently coming to Madras.
8. Prom this evidence, it is not possible to accept the contention of learned Counsel for the petitioner that the petitioner that the first floor is a non-residential premises. Under Section 10(3)(a)(iii) of the Act, the landlord will not be entitled to seek eviction of the tenant if the landlord is in a occupation of a non-residential building for purposes of a business.
9. It has to be stated that in the counter statement filed by the petitioner herein, there was no averment that the first floor of the premises was vacant and that the respondent was disentitled from seeking eviction. It is now stated that the first floor become vacant only after the filing of the petition. Then the burden is on the tenant to put forward either by way of additional statement or by a suggestion when the landlord's witness is in the box that the first floor is non-residential in character and thus the landlord is in occupation of non-residential premises. The petitioner did not choose to make such a specific suggestion when P.W.1 admitted that the first floor was vacant and was in the possession of the respondent. I do not agree with learned Counsel for the petitioner that when R.W.1 stated that it was godown area, it referred to the first floor of the premises and not the locality, when the word 'area' has been used by the witness, it should only refer to the locality and not to the particular building. In view of the positive evidence of P.W.1 confirmed with the admission of R.W.1 that the first floor of the, premises was being used for purposes of stay, the contention that the petition for eviction is not" maintainable, cannot be accepted.
10. Learned Counsel for the petitioner contends that the requirement of the respondent is not bona fide as she had issue a notice marked as Ex.R.2 on 3-5-1982 calling upon the tenants to vacate the premises on the ground that it was required for demolition and reconstruction. It was stated in that notice that building was in a bad condition and it was very old. Learned Counsel contends that when the building was in such a bad condition, the respondent cannot seek to occupy it for her business and, therefore, the present case that it was required for her own occupation for the purpose of business is not bona fide.
11. It has been held by this Court that the requirement for own occupation for the purpose of business and the requirement for the purpose of demolition and reconstruction are not contradictory to each other and they can be combined even in one petition vide the decision in Ponnuswami Naicker v. K. Anandan (1988) 1 L.W.31).
12. The mere fact that the respondent issued a notice stating that the building was required for demolition and reconstruction would not mean that the requirement for own businesses not bona fide. It is seen from the evidence on record that the respondent is carrying on business in a rented premises and there is a proceeding for eviction against the respondent's partner. That evidence has been accepted by both the authorities. I do not see any warrant to interfere with that finding. The conclusion that the requirement for the purpose of own business of the respondent is bona fide, cannot be assailed.
13. The next contention of learned Counsel for the petitioner is that the Appellate Authority has proceeded on the footing that tenant had not let in oral evidence. In fact, the Appellate Authority observes that no witness was examined on the side of the tenant. The reason for such observation is not far to seek. Though the Rent Controller has referred to the evidence of R.W.1 and the documents filed, by him, in the list of witnesses appended to the order of the Rent Controller it is stated that there was no witness for one tenant. Probably that led the Appellate Authority to believe that there was no witness on the side of the tenant. The Appellate Authority has, however, considered the documents filed on the side of the tenant and taken the view that the requirement of the respondent was bona fide.
14. I have been taken through the entire evidence of R.W.1 and all the documents filed by the petitioner in this case. After going through the entire evidence, I do not find any justification for interfering with the finding given by the Appellate Authority. I do not think that there is any necessity for remanding the matter to the Appellate Authority to consider the evidence afresh as I have considered the entire evidence on record.
15. Learned Counsel for the petitioner placed reliance on the decision of the Supreme Court in Shri Balaganesan Metals v. M.N. Shanmugam Chetty . In that case, the Supreme Court had to consider whether the definition of building' in Section 2(2) could be imported in Section 10(3)(c) of the Act. Overruling the decision of a Division Bench of the Court, the Supreme Court held that the definition of 'building' in Section 2(2) cannot be imported into Section 10(3)(c) because of the context in which the sub-section is placed. In fact, the Supreme Court has observed as follows at page 1675:
...The words 'as the case may be' in Sub-clause, (e) have been construed by the Division Bench of Madras High Court to mean that they restrict the landlords right to secure additional accommodation for residential purposes only in respect of a residential building and in the case of additional accommodation for business purpose only to a non-residential building. We are of the view that in the context of Sub-clause (c), the words 'as the case may be' would only mean 'whichever the case may be' i.e., either residential or non-residential.
Again, the Supreme Court has observed as follows:
...It, therefore, follows that once a landlord is able to satisfy the Controller that she is bona fide in need of additional accommodation for residential or non-residential purposes and that the advantage derived by him by an order of eviction will outweigh hardship caused to the tenant, then he is entitled to an order of eviction irrespective of any other consideration, I do not see how the aforesaid decision can help the petitioner in present case:
16. Learned Counsel for the petitioner relies on the decision of the Supreme Court in Amarjit Sing v. Khateen Quamarain , for the preposition that subsequent events should be taken in to account for deciding whether the petition for eviction is maintainable or not. He relies on the following passage found in that decision:
If the fact of the landlord having come into possession during the pendency of the proceedings of shop No. 2 is to be taken into account, as indeed it must be, then clearly the petition is no longer maintainable Under Section 10(3)(iii) of the Act, as the requisite condition for the invoking of the provision has ceased to exist viz., that the landlord was not occupying a non-residential building in the town. 'Building', of course means a portion of a building. As the pre-requisite for the entitlement of the petitioner to institute and continue a petition has ceased to exist, it must follow that ABAN No. 5/1967 is longer maintainable and must be dismissed.
17. The above passage is really a quotation from the earlier decision of the Supreme Court in Pasupulati Venkateswaralu v. Motor and General Traders and after extracting the above passage, the Supreme Court has in the case under reference issued the following note of caution:
But the question is, is it a sufficient ground which will bring her out from the second limb of the conditions imposed by Section 14(1)(e) of the Act? There is no dispute that subsequent events can be taken into consideration. There is no dispute that administration of justice demands that any change either in fact or in law must be taken cognizance of by the court but that must be done in a cautions manner of relevant facts.
18. It is argued by learned Counsel for the petitioner that in this case the subsequent event of the respondent having obtained possession of the entire first floor should be taken note of and the respondent should be non-suited on that ground. As I have taken the view that the first floor is residential in character, this subsequent event relied on by the petitioner will not help their contention that the petition for eviction should be dismissed as not maintainable.
19. In the result, the revision petition fails and dismissed. But there will no order as to costs.
20. Learned Counsel for the respondent is agreeable for grant of three months' time to the tenant to vacate the premises. Hence the petitioner is granted time till 31-5-1988 to vacate the premises on condition that the petitioner files an affidavit in this Court within two weeks" from this date undertaking to vacate the premises on or before 31-5-1988 without driving the landlord to execution proceedings.