Skip to content


Ruth Margaret Gonsalves Vs. K.T.H. Presses by Its Proprietor, Kumar - Court Judgment

LegalCrystal Citation
SubjectTenanacy
CourtChennai High Court
Decided On
Reported in(1987)1MLJ405
AppellantRuth Margaret Gonsalves
RespondentK.T.H. Presses by Its Proprietor, Kumar
Excerpt:
.....in evicting the tenant would be clearly proved by the fact that though the premises were taken on rent by the tenant as far back as in 1972 at a rent of rs. the argument is that there was a dispute with regard to the latrine which has resulted in the landlady taking steps to evict the tenant and that the bona fides of the landlady was clearly doubtful because when the shops fell vacant earlier, she did not choose to occupy any one of the shops and there is no evidence on record to show that she was carrying on any business. this provision clearly contemplates that if a part of the building is occupied for residential or non-residential purposes, and the landlord needs the premises in the occupation of the tenant for either residential or non-residential purposes, as the case may be,..........shop in the premises in question. he has two other premises in the same street in which he is carrying on business. originally, the landlady had filed two petitions claiming possession on different grounds being h.r.c. nos.3089 of 1979 and 3928 of 1980. both of them were dismissed for default and it appears that the landlady also failed in her attempts to get these proceedings restored to file.3. the landlady then filed the present petition on 2nd april, 1982 on the ground that she was making home-made condiments and pickles and that her son was also unemployed and she, therefore, needed the shop in question for her own use for running her said business as according to her because of lack of space she could not continue the business from her residential portion as it was in the.....
Judgment:
ORDER

M.N. Chandurkar, C.J.

1. This is a revision petition by the landlady whose petition for eviction against the respondent-tenant filed under Section 10(3)(a)(iii), of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter called the Act) was allowed by the Rent Controller but the Order was set aside by the appellate authority.

2. The landlady is admittedly the owner of shop No. 4 at No. 36, Mukathal Street, Madras-7. The tenant who deals in ready made clothes has a tailoring shop in the premises in question. He has two other premises in the same street in which he is carrying on business. Originally, the landlady had filed two petitions claiming possession on different grounds being H.R.C. Nos.3089 of 1979 and 3928 of 1980. Both of them were dismissed for default and it appears that the landlady also failed in her attempts to get these proceedings restored to file.

3. The landlady then filed the present petition on 2nd April, 1982 on the ground that she was making home-made condiments and pickles and that her son was also unemployed and she, therefore, needed the shop in question for her own use for running her said business as according to her because of lack of space she could not continue the business from her residential portion as it was in the interior and not suited for business. It may be stated that the premises in question and the premises in which the landlady is residing are connected. She is residing in the rear of the premises while the shop is in front of her residential premises.

4. The tenant denied that the landlady required the premises for her business. He pleaded that the earlier proceedings having been rejected, the landlady was not entitled to once again take proceedings on the same ground. With regard to his other places of business, his case was that in the present premises he had a show room while the other places were used only for stitching and keeping the sewing machines. It was denied by the tenant that the landlady was carrying on any business in the home-made condiments and pickles.

5. Before the Rent Controller, the landlady and her son were examined. The tenant also gave evidence. The Rent Controller held that the petition was maintainable because the claim of the landlady in the earlier petitions was not decided on merits and they were dismissed for default. The Rent Controller accepted the evidence of the landlady that she was carrying on the business of selling home-made articles and according to the Rent Controller, the absence of a licence for such business did not mean that the landlady was not carrying on the business, because according to him, the type of business which the landlady was carrying on did not need any licence. A contention was raised before the Rent Controller that a shop had fallen vacant in 1981, and the landlady instead of occupying it had let it out. The Rent Controller, however, accepted the explanation of the landlady at that time she was not in a position to take the shop. The Rent Controller also rejected the case of the tenant that there were some disputes between the landlady and the tenant as a result of the landlady closing down a latrine, and therefore, the petition filed by the landlady was not bona fide. In view of the finding that the requirement of the landlady of the shop for her own business is bona fide, the petition for eviction was allowed.

6. In the appeal filed by the tenant, the Appellate Authority confirmed the finding recorded by the Rent Controller, that the petition was maintainable under Section 10(3)(a)(iii). However, with regard to the merits of the claim of the landlady, the Appellate Authority took the view that there was no scrap of paper nor any correspondence shown which would indicate that the landlady was running business in condiments and pickles. The Appellate. Authority also took the view that when two shops had fallen vacant in 1975, which according to the landlady had really fallen vacant in 1980, the landlady should have occupied those shops if she was really carrying on the business as stated by her. The Appellate Authority found the petition to be not bona fide also on the ground that there was some dispute about the closure of a flushout latrine and that the earlier proceedings taken against the tenant showed that the landlady was continuously taking proceedings against the tenant. Having thus held that the proceedings were not bona fide, the Appellate Authority reversed the order of eviction made by the Rent Controller.

7. In this petition filed by the landlady, the finding recorded by the Appellate Authority that the proceedings for eviction were not bona fide has been seriously challenged, it is argued by the Learned Counsel that the absence of mala fides in evicting the tenant would be clearly proved by the fact that though the premises were taken on rent by the tenant as far back as in 1972 at a rent of Rs. 200 per month, never had the landlady claimed any higher or enhanced rent. According to the counsel, the landlady has a right to choose the premises which she could occupy conveniently for the purpose and the fact that her son was unemployed not being challenged would further show that she was in dire need of the premises because she wanted the premises for the purpose of the small business which she was carrying on in home made pickles and condiments.

8. Equally vehemently, the Learned Counsel for the respondent supported the finding recorded by the Appellate Authority. The argument is that there was a dispute with regard to the latrine which has resulted in the landlady taking steps to evict the tenant and that the bona fides of the landlady was clearly doubtful because when the shops fell vacant earlier, she did not choose to occupy any one of the shops and there is no evidence on record to show that she was carrying on any business. An argument was raised that this was not a case which could fall under Section 10(3)(a)(iii) but the proper provision under which the claim of the landlady had to be determined was the provision made under Section 10(3)(c) of the Act.

9. I shall dispose of the latter argument first. Section 10(3)(c) undoubtedly contemplates that if a part of the building is occupied by a landlord, whether residential or non-residential, then if the landlord needs additional accommodation for residential purposes or for purposes of a business which he was carrying on, he may apply to the Controller, for an order directing the tenant to put the landlord in possession of the premises in the occupation of the tenant. This provision clearly contemplates that if a part of the building is occupied for residential or non-residential purposes, and the landlord needs the premises in the occupation of the tenant for either residential or non-residential purposes, as the case may be, eviction can be ordered. The evidence of the landlady in the instant case undoubtedly shows that she had used the word 'business' for describing her activity of making home-made condiments and pickles. But it has to be remembered that the said activity of making homemade condiments and pickles in small quantities for earning a living is which being carried on in the same premises in which she is residing. The premises are predominantly used for residence. If she has no other premises to carry on this activity and does it in her residential place, it cannot be said that any particular portion is being used for nonresidential or business purposes. The present claim, therefore, does not at all fall under Section 10(3)(c), but squarely fall within only Section 10(3)(c)(iii).

10. So far as the maintainability of the petition is concerned, the finding that the present petition is maintainable has not been challenged on behalf of the tenant in this Court. However, what is contended is. that the making of the earlier applications should be construed as a part of an attempt on the part of the landlady to evict the tenant. Now, it is difficult to see how if the earlier petitions have been dismissed for default, without any enquiry, the present petition can become mala fide. When her efforts to get the earlier petitions restored to file have failed, she (landlady) would be justified in making a fresh petition which will have to be decided on its own merits.

11. In so far as the alleged enmity arising out of some dispute with regard to the latrine is concerned, it is clear from the evidence that there is nothing which could conclusively prove that it was the landlady who had closed the latrine. As a matter of fact, questions were put to the landlady in her cross-examination in which she has clearly stated that the latrine was closed by the Corporation authorities. She undoubtedly admitted that the tenant had complained about this to the Corporation authorities and the Government. The mere fact that the tenant had complained to the Corporation authorities and the Government does not necessarily prove that it was the landlady who had closed the latrine. The statement in her cross-examination that the Corporation authorities had closed the latrine was not proved to be false by any other evidence. Apart from this, there is nothing to show as to when this dispute had occurred, i.e., how long before either this petition or the earlier proceedings.

12. The next contention that there is no explanation as to why the present tenant's shop alone is being sought possession of cannot also be accepted because primarily it is for the landlord to choose the premises which would be convenient to him. In addition to this, there is the statement in cross-examination which has been made by the landlady that since the present shop portion was more convenient and the present tenant was having other shops, she had sought possession of the present premises. As a matter of fact.where a landlord owns more than one premises, proceedings against any one of the tenants would give rise to a question which is posed by the Learned Counsel for the tenant, but that by itself would not create any infirmity in the claim of bona fides by the landlady.

13. It is then contended that there is no evidence to show that the landlady was carrying on any business. On a review of the evidence, it appears that the Appellate Authority had clearly misdirected himself when he allowed himself to be wholly influenced by the use of the word 'business'. It was never the claim of the landlady that she was carrying on any business on a large scale which would necessitate maintenance of any accounts or vouchers which could be produced in Court. It is difficult to see what documentary evidence the Appellate Authority expected when facts showed that an old lady was carrying on some sort of activity of preparing pickles and condiments for selling, to persons who are known to her-because that is her evidence. Though strictly in economic terms, this might be called 'business' which is really an activity to raise some money and in a case where especially no employees are involved and where the so-called production is not of a large scale, it is difficult to see how the activity could be subjected to scrutiny on the basis of absence of vouchers or correspondence. It was not the case of the landlady that she was making bulk purchases of any raw material in respect of which any correspondence would be there. The finding recorded by the Appellate Authority is, in any view, clearly vitiated because of the erroneous approach to the question of the nature of the activity which the landlady was claiming to be carrying out. Her statement shows that she was doing business in home-made curry powder, jam and pickles. She has also stated in cross-examination '.... People known to me are purchasing from me. I am not issuing any bills....' Such activity for making a small money is well known where women without sufficient source of income try to make some money by making small things at home and selling them to their acquaintance or to persons known to them. Strictly speaking, therefore, any insistence on evidence in the form of bills or vouchers in regard to such an activity is not justified.

14. It is undoubtedly true that in the notice which was initially given, the landlady had alleged that she wanted the premises for the business of her son while in the petition she has pleaded that she wanted the premises for her own use. But it has to be remembered that in the very same paragraph in which she has stated that she wanted the premises for her own use, she has also mentioned the fact that her son was unemployed and she needed the shop occupied by the tenant for her own use. Pleadings in such matters cannot be construed with the strictness with which pleadings in civil suits are construed. The case of the landlord or the tenant, as the case may be, has to be read as a whole and on the evidence and the pleadings, there is no doubt in this case that here was a landlady who had the problem of an unemployed son on her hand and she was making some additional income by making some small things for the benefit of her acquaintances and selling them. Her desire to have this business done on bigger scale by taking a shop which belongs to her but occupied by the tenant would clearly go to show that she also wanted the premises for the use of her son for providing him with some source of income.

15. In my view, the Order of the Appellate Authority was clearly vitiated by an entirely erroneous approach of the nature of the claim made by the landlady. The order is set aside and this revision is allowed. The order passed by the Rent Controller is restored. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //