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PRABHAKARAN versus ARSHLEEN ANEJA

High Court of Madras

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Prabhakaran v. Arshleen Aneja - CRP.NPD.1747 of 2007 [2007] RD-TN 2123 (29 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 29-6-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD No.1747 of 2007

and

M.P.No.1 of 2007

Prabhakaran .. Petitioner vs

Arshleen Aneja .. Respondent Civil revision petition preferred under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973 and Act 1 of 1980 against the judgment and decree dated 23.3.2007 made in RCA No.1384 of 2004 on the file of the VIII Judge, Court of Small Causes, Chennai, confirming the fair and decreetal order dated 28.9.2004 made in RCOP No.787 of 2003 on the file of the XIV Judge, Court of Small Causes, Chennai. For Petitioner : Mr.T.R.Rajagopalan Senior Counsel for Mr.A.Gandhi For Respondent : Mr.S.Subramanian ORDER



This revision has arisen from an order of the Rent Control Appellate Authority in RCA No.1384 of 2004 affirming an order of eviction in RCOP No.787/2003 by the Rent Controller.

2.The respondent-landlady filed the RCOP with the specific averments that the petition mentioned premises in Door No.834/6, Raheja Complex, Anna Salai, Chennai, belonged to her; that the revision petitioner-tenant has been making a payment of Rs.4,100/- per month; that her husband is carrying on a business in the name of Singh Trading Company in a rented premises; that he is also a partner therein; that the said partnership firm suffered an order of eviction in CRP No.82/2002 dated 26.4.2002 of this Court; that under the circumstances, the said partnership firm has to vacate the premises on or before 25.4.2004 and hand over possession; that under the circumstances, it has become absolutely necessary to shift the business; that the premises in question is required for immediate occupation of the petitioner's husband, and hence, an order of eviction was needed for bonafide requirement.

3.The application was contested by the revision petitioner-tenant stating that it is a very small shop having a measurement of 262 sq. ft.; that it was taken on lease about two decades before; that there was a rental agreement entered into between the parties; that from time to time, it was renewed; that lastly, it was renewed for a period of three years in 2003; that under the circumstances, the tenancy agreement is valid till 2006; that there was no question of filing an application before the end of the period; but, it has been brought forth by the landlady; that in the instant case, actually there was no need at all; that apart from that, there was lack of bonafide; that the balance of convenience is not in favour of the landlady; that in the absence of true and genuine case, it should not be ordered, and hence, the application was to be dismissed.

4.The Rent Controller, after enquiry, found in favour of the landlady and ordered eviction. The appeal by the tenant has also met the same fate. Hence, this revision has been brought forth before this Court.

5.The learned Senior Counsel arguing for the revision petitioner-tenant raised two points before this Court. Firstly, there was an agreement between the parties in 2003. The Rent Control Appellate Authority has also observed in its order that there was an agreement as pleaded by the tenant. Once it has recorded a finding like that, automatically, the application should have been dismissed. Secondly, the tenancy period would extend till 2006; but, the RCOP was filed in 2003 itself. Under such circumstances, the order of the appellate authority has got to be set aside.

6.Added further the learned Senior Counsel that what was all pleaded by the respondent-landlady was that the premises was required for her husband, who was a partner in a firm; that the said business was carried on in a rental premises; that even in the RCOP, it has been stated that the partnership firm suffered an order of eviction, and therefore, the business has got to be shifted to the premises in question; that the law would require that once it is required for any one of the members of the landlord, it should be specifically pleaded that the person for whose occupation the possession is sought for, was not owning any other premises; that in the instant case, it has not been specifically pleaded, and under the circumstances, the petition must fail for the lack of pleading. In support of his contention, the learned Senior Counsel relied on a decision of this Court reported in (2004)2 M.L.J. 683 (KOTTI, KOTTI STORES V. A.M.RANGABHASHYAM) and would submit that the orders of the authorities below have got to be set aside on the above grounds.

7.The Court heard the learned Counsel for the caveator. According to him, it has been specifically pleaded that the landlady's husband was a partner in a firm, and it also suffered an order of eviction, and hence, the business was to be shifted, and there are two shops available, and as far as the shop in question is concerned, the revision petitioner has got to be evicted in order to carry on the business which is being run by the husband. Added further the learned Counsel that the order of eviction made in the C.R.P. as referred to above, was also pointed out in the course of the affidavit filed by the respondent before this Court; that as far as the non-availability of another premises for the husband of the landlady is concerned, it has been clearly spoken to in the evidence; that under such circumstances, these contentions put forth by the petitioner's side do not carry merit, and hence, the order of the authority below has got to be sustained.

8.After careful consideration of the rival submissions made, this Court is of the considered opinion that the order of the lower Court has got to be set aside. As far as the first contention put forth by the petitioner's side as to the rental agreement is concerned, this Court has to necessarily disagree with the same. What was all alleged in the course of the counter statement before the Rent Controller was that there was an agreement between the parties in 2003, and it can be extended for a period of three years. But, there was no material at all, except the averment made. In the absence of the same, that contention cannot be accepted. Hence, that plea fails.

9.As regards the second contention, it would be more apt to reproduce Sec.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, as follows: "Sec.10(3)(a)(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." Once the landlady comes with a case that the premises is required to carry on the business, it would also be extended to any one of the family members. Here, the landlady sought for possession of the property for a business to be carried on by her husband. It is also true that the landlady's husband was a partner in a partnership firm, which also suffered an order of eviction in the hands of this Court. It has also been recorded in the said revision. That apart, the law would require that if a person for whose need the premises is required, has no other premises, it has to be specifically pleaded. In the absence of the same, it cannot be accepted, and that too, even in a case where there is bonafide requirement, the pleading must be strictly made. If not, it can be stated that there is lack of pleading, which would lead to the dismissal of the application. The decision relied on by the learned Senior Counsel for the petitioner and stated supra, has got to be followed in the instant case. Since the landlady has not even pleaded that her husband is not in occupation of any non-residential building of his own and in the absence of such pleading, the application deserves to be dismissed as one meritless. In the instant case, this Court is able to notice lack of pleading. In the absence of any pleading to that effect, the respondent-landlady cannot have an order of eviction. Under the circumstances, on the said ground of legal plea of lack of pleading, this Court is of the opinion that the landlady is not entitled for eviction, which has not been looked into by the authorities below. Hence, the orders of the authorities below have got to be set aside.

10.In the result, this civil revision petition is allowed setting aside the orders of the authorities below. No costs. Consequently, connected MP is closed. 29-6-2007 Index: yes

Internet: yes

To:

1.The VIII Judge

Court of Small Causes

Chennai

2.The XIV Judge

Court of Small Causes

Chennai

nsv/

M.CHOCKALINGAM, J.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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