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T.R.DEVARAJAN versus K.RATHINAM

High Court of Madras

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T.R.Devarajan v. K.Rathinam - CRP. NPD No.1953 of 2007 [2007] RD-TN 2597 (3 August 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 03/08/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

CRP. NPD Nos.1953 and 2213 of 2007

AND

MP. No.1 of 2007

T.R.Devarajan ..Petitioner in CRP.1953/2007 and Respondent in CRP.2213/2007 Vs

K.Rathinam ..Respondent in CRP.1953/2007 and Petitioner in CRP. 2213/2007 CRP No.1953/2007 preferred under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended against the judgment and decree passed in RCA No.1212 of 2005 dated 13.3.2007 on the file of the VII Judge, Small Causes Court, Chennai, partly reversing the order of eviction passed in RCOP No.674 of 2004 on the file of the XI Judge, Small Causes Court, Chennai, dated 2.9.2005. CRP No.2213/2007 preferred under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended against the judgment and decree passed in RCA No.1212 of 2005 dated 13.3.2007 on the file of the VII Judge, Small Causes Court, Chennai, confirming the order of eviction passed in RCOP No.674 of 2004 on the file of the XI Judge, Small Causes Court, Chennai, dated 2.9.2005. For Petitioner in

CRP 1953/2007 and

Respondent in

CRP 2213/2007 : Mr.M.L.Ramesh For Respondent in

CRP 1953/2007 and

Petitioner in

CRP 2213/2007 : Mr.S.Sadasharam COMMON ORDER



This order shall govern these two revisions namely CRP No.1953 of 2007 at the instance of the landlord, and CRP No.2213 of 2007 at the instance of the tenant.

2.The Court heard the learned Counsel on either side.

3.The landlord who is the petitioner in CRP No.1953/2007, filed an eviction petition under Sections 10(2)(v), 10(2)(ii)(b), 10(2)(iii, 10(3)(c) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act on the grounds of nuisance, act of waste, conversion, owner's occupation and additional accommodation. On enquiry, the Rent Controller agreed with the case of the landlord on the grounds of owner's occupation and additional accommodation, though was not prepared to accept the other three grounds. Aggrieved, the tenant took it on appeal in respect of those grounds accepted, in RCA No.1212/2005. On enquiry, the appellate authority namely the VII Judge, Court of Small Causes, affirmed the order of eviction only on the ground of additional accommodation, but denied the ground of owner's occupation. Aggrieved over the same, these two revisions have been brought forth, one at the instance of the landlord in respect of the denial of the ground of owner's occupation and the other at the instance of the tenant on the eviction being ordered on the ground of additional accommodation.

4.The admitted facts are as follows: The revision petitioner in CRP No.2213/2007 is a tenant under the landlord, who is the revision petitioner in CRP No.1953/2007. There are two portions in the ground floor which are being occupied by the tenant. In respect of the residential portion during the relevant period, the monthly rent was Rs.806/-, and for the non-residential portion, it was Rs.189/-. From the beginning, there are two independent payments of rental in respect of the portions, and they are situated abutting each other.

5.While the matter stood thus, the landlord came forward with the petition for eviction stating that the tenant has vacated the residential premises and shifted to another place; that he has converted the residential portion into a godown; that the property has also been put to waste; that nuisance has also been created; that apart from that, the landlord is occupying the first floor of the building; that he requires the premises in question in view of the inconvenience; that also in view of the addition of the family members, he requires the portion in the ground floor, which was originally leased out to the tenant for residential purposes, for the purpose of having kitchen and car parking; that as far as the non-residential portion in the first floor is concerned, the daughter-in-law of the landlord has entered into a tie up with the Centurion Bank Limited for commencement of her business; that under the circumstances, it is required for the owner's occupation, and hence, eviction was to be ordered.

6.The application was seriously contested by the tenant stating that only one petition for eviction cannot be maintained since there has been two independent tenements, one for residential purpose and the other for non-residential purpose; that it is not correct to state that the tenant has shifted his residential portion to some other place and has been using it as a godown; that there was neither act of waste nor conversion nor nuisance; that the reason put forth by the landlord for additional accommodation, was nothing but a falsity; that as far as the non-residential portion in the front part is concerned, it lacks bonafide; that it was a reason invented for the purpose of getting eviction, that it is required for his daughter-in-law to carry on her business, and under the circumstances, the petition was to be dismissed.

7.The Rent Controller on enquiry agreed with the case of the landlord and ordered eviction on the grounds of owner's occupation in respect of the front portion and additional accommodation in respect of the back portion. Aggrieved, the tenant took it on appeal in RCA No.1212 of 2005, where on enquiry, the appellate authority agreed with the case of the landlord in respect of the additional accommodation and ordered eviction, and as far as the owner's occupation was concerned, it denied the case of the landlord.

8.Arguing for the revision petitioner in CRP No.2213/2007 at the instance of the tenant, the learned Counsel would submit that in the instant case, the landlord wanted to have the back portion for the residential purposes even without any evidence or when there was lack of evidence in that regard; that the landlord was unable to show that it was really required for additional accommodation; that it was also a reason invented for the purpose of getting an order of eviction on that ground; that even that Section cannot be applied, under the circumstances, for additional accommodation, and hence, it has got to be rejected.

9.The learned Counsel would further press that two petitions should have been filed, but not done; that under the circumstances, the order of the appellate authority affirming the order of eviction on the ground of additional accommodation, has got to be set aside, and orders have got to be passed.

10.As far as the other ground of owner's occupation was concerned, the learned Counsel for the tenant would submit that the Rent Control Appellate Authority was perfectly correct in rejecting the case of the landlord for the simple reason that in a given case in order to apply the provisions of Sec.10(3)(a)(iii) of the Act, the first and foremost requirement is that for owner's occupation, it must be either the landlord or any one of the members of the family should be carrying on business at that particular time; that in the instant case, there was no evidence at all; that it was only a desire to commence the business, and hence, the appellate authority took the correct view in applying the law therefor and has rejected the same, and hence, the order of the appellate authority in that regard has got to be confirmed.

11.Contrary to the above, the learned Counsel appearing for the landlord would submit that as far as the first contention that two independent petitions have got to be filed does not require consideration; and that so long as no prejudice is caused to the tenant, no question of filing two petitions would arise. He relied on a decision of the Apex Court reported in AIR 1975 SUPREME COURT 1750 (S.M.GOPALAKRISHNA CHETTY V. GANESHAN AND OTHERS) for that proposition.

12.Added further the learned Counsel that in the instant case, the landlord has clearly shown that he is occupying the first floor, and the front and back portions in the ground floor are being occupied by the tenant, and it is required for additional accommodation; that under the circumstances, it was a proved fact, and hence, both the authorities below have agreed with the landlord and that order has got to be sustained in that regard.

13. As far as the owner's occupation was concerned, the learned Counsel would submit that it is a case where Sec.10(3)(a)(iii) could be strictly applied; that it is true that in a given case, law requires that carrying on business must be proved in order to show that it requires for owner's occupation, and it can also be extended to the use of the members of the family; that in the instant case, the daughter-in-law has applied to the Centurion Bank, which called for the reply, and further negotiations are on; that in that regard, Exs.P11 and P12 were filed; that from the evidence, it would be quite clear that the case of the landlord was actually a step forward to commence the business; that it is not a mere desire; that even in the case of mere desire also, if there are no steps, the petition could be dismissed; that carrying on business has been interpreted by the rulings of this Court and also the Apex Court; that what it requires is not only a mere desire, but also a step forward; that actually the business need not be carried on during the relevant period; that under the circumstances, the Rent Controller has accepted the case of the landlord since factually and legally it was correct; but, the appellate forum has set aside the same erroneously, and hence, the impugned order in that regard has got to be set aside, and the revision be ordered.

14.The Court paid its anxious consideration on the submissions made.

15.It is not in controversy that the revision petitioner in CRP No.1953/2007 is the landlord in respect of the premises in question which consists of two portions in the ground floor, and the petitioner in CRP No.2213/2007 is the tenant. The front portion in the ground floor was leased out for the purpose of carrying on business, which was being done by the tenant for a longtime, while the back portion was given for residential purpose. There is also no controversy that in respect of the residential portion, the rent was Rs.806/- and as far as the non-residential portion is concerned, it was Rs.189/-. The petition is filed bringing both the tenements for eviction on the grounds urged therein.

16.Now, the first contention urged by the tenant that two eviction petitions should have been filed, and both the tenements cannot be clubbed together by filing one petition has got to be rejected for the simple reason that it is well settled proposition of law that so long as no prejudice is caused or shown to have been caused to the tenant by filing one petition, the landlord can file a single petition in respect of number of tenements provided the parties are the same. In the instant case, they are also adjacent to each other. Under the circumstances, no prejudice is shown to have been caused, and hence, the first contention has got to be rejected. Accordingly, it is rejected.

17.The eviction was sought for on the grounds of nuisance, conversion and acts of waste along with other two grounds of owner's occupation in respect of the front portion, and additional accommodation in respect of the back portion. As far as the first three grounds namely the nuisance, conversion and acts of waste, were concerned, they were actually rejected by the Rent Controller and not appealed against. Hence, the finding recorded by the Rent Controller on those three grounds, have become final. When the Rent Controller passed an order of eviction on the grounds of owner's occupation and additional accommodation, a challenge was made by the tenant in RCA No.1212 of 2005. On enquiry, the appellate authority has taken a view that as far as the front portion was concerned, the landlord cannot ask the same for owner's occupation since what was noticed is only a mere desire, and the actual carrying on business is not proved, and as far as that ground is concerned, the landlord could not get an order of eviction and rejected the same. Under the circumstances, the landlord has brought forth CRP No.1953/2007 referred to above. Now, at this juncture, the premises in question, according to the landlord, is required for the purpose of his daughter-in-law in order to carry on a business as averred in the petition. According to the landlord, it is a fit case where the facts and circumstances require application of Sec.10(3)(a)(iii) of the Act, and hence, it would be fit and proper to apply the same for the purpose of eviction. On the contrary, according to the learned Counsel for the tenant, Sec.10(3)(a)(iii) cannot be applied since what are all required is actual carrying on business; but, it was not available in the case on hand. It would be more apt and appropriate 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."

18.Needless to say that when the owner's occupation is required by the landlord, it is not necessary that it should be for him, but also for any one of the members of the family. In the instant case, the landlord requires the premises for the purpose of carrying on business of his daughter-in-law. The next question would be whether there is carrying on business available for the landlord as contemplated under the provisions of the Act. Now, carrying on business what is found in Sec.10(3)(a)(iii) of the Act has come up for interpretation by this Court, and it has been held that carrying on business does not require active and actual carrying on business; but, steps taken in that regard, would be sufficient. Now, at this juncture, the next question would be whether it was merely a desire as stated by the learned Counsel for the tenant, or steps have been taken as contended by the learned Counsel for the landlord. In the instant case, first of all, the averments made in the petition are as follows: "The petitioner's daughter-in-law is intending to start the same verification agency with a tie up with Centurion Bank Limited." Now, two documents were filed apart from the evidence of P.W.1. Those documents were Exs.P11 and P12. There was a communication between the daughter-in-law of the petitioner and the said Centurion Bank. The Centurion Bank under Ex.P12, have called for the place where the business is to be commenced, the phone number and the infrastructure facility. As rightly contended by the learned Counsel for the landlord, if the premises is available, only then an information or an intimation or a communication could be addressed by the daughter-in-law of the landlord to the Centurion Bank as to the availability of the premises. Further, even before the possession is taken, it is not possible for her to specify the place where she is to commence the business. Now, at this juncture, it is pertinent to point out that the communication which has emanated from both the hands, would clearly reveal that steps have already been taken. It remains to be stated that carrying on business as contemplated under Sec.10(3)(a)(iii) of the Act does not require active and actual carrying on business. Now, steps have been taken in that regard, which would satisfy the requirement under that provision. Under the circumstances, it is a case where there is sufficient evidence available. But, the appellate authority has found that what was available was only a mere desire and that will not be equivalent to the requirement. In the instant case, it is not the mere desire only; but also steps have been taken positively which would be sufficient, in the opinion of this Court, to apply Sec.10(3)(a)(iii) of the Act.

19.It is also brought to the notice of the Court by the learned Counsel for the landlord that in the evidence, it is available that the tenant is having a shop in the opposite row, where he is carrying on his business, and he is also having another shop in the next street. Under the circumstances, even if the hardship test is applied, no hardship would be caused to the tenant if he is evicted. Hence, it is a fit case where Sec.10(3)(a)(iii) can be applied, and the eviction ordered by the Rent Controller on that ground, has got to be restored. Accordingly, the order of the appellate authority in that regard is set aside, and the order of eviction passed by the Rent Controller is restored.

20.As far as the additional accommodation is concerned, concededly, the owner of the property namely the landlord, is occupying the first floor. He wants to occupy the ground floor for additional accommodation in view of the addition of the members of the family. The ground floor has actually been in the hands of the tenant, and hence, the additional accommodation sought for, has got to be taken as a ground for eviction. This Court is able to notice that there is bonafide in asking so. Hence, the order of eviction in that regard has got to be sustained. Accordingly, it is sustained.

21.Now, both the portions in the ground floor are being occupied by the tenant one for residential purpose and the other for non-residential purpose. This Court is of the considered opinion that sufficient time must be given to the tenant to vacate and hand over possession of the above portions. For that purpose, the learned Counsel for the tenant would submit that in respect of the residential portion, he requires 3 months' time. Accordingly, 3 (three) months' time is granted in that regard.

22.As far as the non-residential portion is concerned, the tenant requires 2 years' time. The Court heard the learned Counsel for the landlord. After doing so, this Court feels that two years' time, under the circumstances, would be too unreasonable. However, taking into consideration the totality of the circumstances, the Court grants 15 (fifteen) months' time for vacating and handing over possession. The tenant is directed to file an undertaking affidavit within a period of two weeks herefrom.

23.Accordingly, CRP No.1953 of 2007 filed by the landlord, is allowed. CRP No.2213/2007 filed by the tenant, fails, and the same is dismissed. No costs. Consequently, connected MP is also dismissed. nsv/

To:

1. The VII Judge

Court of Small Causes

Chennai.

2. The XI Judge

Court of Small Causes

Chennai.


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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