Madras High Court
A.M. Dhanapal Chettiar vs T.D. Sundaram And Ors. on 8 February, 1991
Equivalent citations: (1991)1MLJ490
ORDER Somasundaram, J.
1. The petitioner in R.C.O.P. No. 27 of 1981 on the file of the Rent Controller (District Mun-sif), Krishnagiri, is the petitioner in this civil revision petition. The respondents in the said R.C.O.P. are the respondents in this civil revision petition.
For the sake of convenience, the parties are referred to in this order by the nomenclature given to them in the R.C.O.P. 2 The petitioner filed an application R.C.O.P. No. 27 of 1981 for eviction against the respondents under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960, hereinafter called the Act. The case of the petitioner is as follows:
The two shops bearing door Nos. 79 and 80 which are described in the schedule appended to the petition belonged to the petitioner. The first respondent took door No. 80 for rent in or about 1968 and door No. 79 in 1969 on a monthly rent of Rs. 80 and Rs. 100 respectively and occupied them. At present the rent for both the shops is Rs. 500 per month. The petitioner has got three major sons of whom the youngest is studying in the Engineering College and he would be completing his course soon. The other two sons are graduates. One of them is engaged in the motor transport business and the other is without any job. The petitioner is in need of the petition mentioned shops for the auto parts, hardwares and electric goods business of his sons. The requirement of the petition mentioned shops for the business of his second and third sons is bonafide.
3. The respondents resisted the application for eviction contending that the petitioner has no idea of starting any business in auto parts or any other business for his sons. The petitioner is having many buildings, both residential and non-residential, suitable for the business of his sons. The petitioner's requirement of the shops is not bonafide.
4. The Rent Controller, on a consideration of the entire evidence on record, found that the petitioner's requirement of the petition mentioned shops for the business of his sons is bona fide. Consequently the Rent Controller allowed the petition for eviction. As against the order of the Rent Controller the respondents filed an appeal, R.C.A. No. 3 of 1986 on the file of the Appellate Authority, Krishnagiri. The Appellate Authority reversed the findings of the Rent Controller, allowed the Rent Control Appeal and dismissed the petition for eviction filed by the petitioner. Aggrieved by the judgment in R.C.A. No. 3 of 1986 the petitioner has filed this present civil revision petition.
5. The question we have to examine in this civil revision petition is:
Whether the petitioner is entitled to an order of eviction under Section 10(3)(a)(iii) of the Act?
6. The petitioner's case is that he requires the petition mentioned shops for the business of his sons. In such circumstances, the petitioner, in order to obtain an order of eviction against the respondents under Section 10(3)(a)(iii) of the Act, must satisfy the following four conditions:
(a) The petition mentioned shops must be non-residential;
(b) The petitioner's sons for whose business the petitioner requires the petition mentioned shops must carry on a business;
(c) The petitioner's sons for whose business the petitioner requires the shops are not occupying for the purpose of such business a non-residential building of their own; and
(d) The petitioner's requirement of the petition mentioned shops for the business of his sons must be bonafide.
7. Admittedly the petition mentioned shops are non-residential portions in the building. With regard to the second condition, the settled position of law is that the landlord need not actually carry on the business when he makes an application for eviction of a tenant on the ground that he requires the building for his business. In Thiru Chelliah Panduhan v. Tmt. Anthoniammal 98 L.W. 666, this Court, while dealing with the question whether the landlord should actually carry on business in order to maintain the petition for evictionagainsta tenant under Section 10(3)(a)(iii) of the Act held as follows:
It appears to me that having regard to the later decisions, the fact that the landlords are not actually carrying on the business when they make an application for eviction of the tenant on the ground of requirement for their business would not be fatal to their claim under Section 10(3)(a)(iii) of the Act.
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 (D.B.), a Division Bench of this Court, while dealing with the meaning of the expressions 'carrying on business' used in Section 10(3)(a)(iii) of the Act held as follows:
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 state 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 evidence in this case discloses that the petitioner's sons have taken series of steps for starting a business of their own. Exs.A-3 to A-22 go to show the various steps taken by the petitioner's sons to start their business. The evidence in this case also discloses that the petitioner's second son is carrying on business under the name and style of 'Tata Oil and Soap Agencies' in Door No. 78, which belongs to the petitioner and where the petitioner himself is carrying on his transport business. Further, the documents filed as additional evidence in this civil revision petition in C.M.P. No. 9045 of 1990 also go to show that during the pendency of the present proceedings the third son of the petitioner Anantaraman has started a business under the name and style of 'Danapal Motors' at door No. 340, Bangalore Road, Krishnagiri, which belongs to his mother. In the said premises at Door No. 340, Bangalore Road, Krishnagiri, the third son is carrying on business as an authorised dealer of Kinetic Engineering Limited. The above subsequent event also goes to show that the petitioner's third son is carrying on business as an authorised dealer of Kinetic Engineering Limited. In these circumstances, the reasoning of the Appellate Authority that the petitioner's sons are not carrying on any business nor they have taken any steps for starting a business and, therefore, they have not satisfied the second ingredient of Section 10(3)(a)(iii) is clearly erroneous.
8. Now let us examine whether the petitioner has satisfied the third condition viz., whether the petitioner's sons for whose business the petitioner requires the petition mentioned shops are not occupying for the purpose of such business a non-residential building of their own. The learned Counsel for the respondents would contend that Section 10(3)(a)(iii) of the Act requires that neither the landlord nor the family member for whose benefit the premises is required should carry on, business in a building of his own and as the shop No. 78 in which the petitioner is carrying on his own transport business, is his own, he cannot ask for the petition mentioned shops even though it was intended for the business of his sons. There is no merit in the above contention of the learned Counsel for the respondents. As observed by Pad-mini Jesudurai, J., in the decision in A.S. Raman v. S.C.N. Zakaria 100 L.W. 213, this Court has uniformly held that when the premises are sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the premises are required who should not occupy premises of his or of her own. The fact that the landlord occupies premises of his own would not disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his of Chandurkar, C.J., in Indian Plywood Manufacturing Co. v. Balaraman Chetty 99 L.W. 49, has held that under Section 10(3)(a)(iii) of the Act, the landlord can apply for eviction if the person for whose benefit the non-residential premises are required is not already in occupation of a non-residential building of his own.
9. Then we have to examine whether the petitioner has satisfied the last condition viz., whether his requirement of the petition mentioned shops for the business of his sons is bonafide. The leanred counsel for the respondents submitted that the petition for eviction was filed in the present case in the year 1981 and if he had any idea of starting a business of his sons and if the petitioner's requirement was bonafide, he could not have sold several buildings of his own in the year 1979. There is no substance in the contention of the learned Counsel for the respondents. The evidence in this case discloses that under Ex.B-1, dated 30.3.1979 the petitioner has sold one building for the purpose of improving his transport business. Such a solitary sale under Ex.B-1 made in the year 1979, two years prior to the filing of the petition for eviction will not go to show that the petitioner's requirement of the petition mentioned shops for the business of his sons is not bonafule. The evidence in this case clearly discloses that on the date of filing of the petition for eviction the petitioner was not owning any other non-residential buildings except shop No. 78 where the petitioner is admittedly ^carrying on his transport business and the petition mentioned shops bearing door Nos. 79 and 80. The learned Counsel for the respondents further contended that the petition for eviction was filed by the petitioner because the respondents refused to pay enhanced rent and that they have filed a petition before the Rent Controller for fixation of fair rent. This contention of the learned Counsel for the respondents cannot be countenanced because the claim of a higher rent by the landlord on an earlier occasion and the respondents filing a petition for fixation of fair rent by itself will not go to show that the petitioner's requirement of the petition mentioned shops for the business of his sons is not bonafide. In Aishath Najiya v. Lal Chand Kevalram and Ors. (1989)2 L.W. 123 (F.B.), a Full Bench of this Court has held that a demand for higher rent at an early stage will not debar the landlady from claiming eviction on the ground of bonafide requirement of the premises for her own. use.
10. The last submission of the learned Counsel for the respondents is that during the pendency of the proceedings the third son of the petitioner Anantaraman has started his business under the name and style of Danapal Motors at Door No. 340, Bangalore Road, Krishnagiri, which belongs to his mother; when the need of the petitioner's third son is satisfied, the requirement ceased to exist and, therefore, the requirement is not bonafide. I am unable to accept the above contention of the learned Counsel for the respondents. The case of the petitioner is that the petition mentioned shops are needed for the business of his sons who are admittedly not owning any non-residential building of their own. The learned Counsel for the respondents cannot contend that the petitioner's requirement of the petition mentioned shops for the business of his sons is not bonafide, because, one of his sons had started his business in the premises of his mother and, therefore, the petitioner's sons are not in need of the petition mentioned shops for their business. In Aishath Najiya v. Lal Chand Kevalram and Ors. (1989) 2 L.W. 123 (F.B.), a Full Bench of this Court, while dealing with a similar contention, has observed as follows:
I am of the view that the need is not dictated by necessity. That is something not contemplated by the provisions of the Act.
In the above circumstances, it has to be held that the petitioner's requirement of the petition mentioned shops for the business of his sons is bona fide and that the petitioner is entitled to an order of eviction in this case. The infirmity in the judgment of the Appellate Authority is that it failed to draw proper inference from the evidence available on record and failed to apply the principles laid down by this Court in the decisions referred above in deciding the issue involved in this case and, therefore, the judgment of the Appellate Authority in R.C.A. No. 3 of 1986 is liable to be set aside. The above discussion of mine obliges me to interfere with judgment of the Appellate Authority in this revision. Accordingly, the civil revision petition is allowed, the judgment in R.C.A. No. 3 of 1986 is set aside and the order of the Rent Controller in R.C.O.P. No. 27 of 1981 is restored. No costs.