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M. Abdul Rahman Vs. S. Sadasivam - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ410
AppellantM. Abdul Rahman
RespondentS. Sadasivam
Cases ReferredMahalakshmi Metal Industries v. Suseela Devi
Excerpt:
- - 3. in this revision filed by the landlord against the findings rendered by the rent controller as well as the appellate authority in respect of both the grounds of eviction has been questioned. however, i do not see how the landlord could challenge the concurrent finding of the rent controller as well as the appellate authority that the tenant has not committed wilful default in payment of arrears of rent. it is well-established that a concurrent finding based on evidence be interfered with in revision by the high court exercising jurisdiction under section 25 of the act. according to the learned counsel for the landlord, the rent controller as well as the appellate authority have proceeded to adopt the test applicable to a case to determine the bona fide or otherwise of the..........(lease and rent control) act, 1960 (hereinafter referred to as the act) affirming the order of the rent controller, dismissing his eviction petition filed against the respondent tenant.2. the landlord/petitioner herein filed an eviction petition under section 10(2)(i) of the act for wilful default in payment of rent and under section 10(3)(a)(iii) of the act based on his requirement of the building for his use and occupation for the purpose of carrying on his own business; the tenant-respondent resisted the said eviction petition on the ground that he has not committed wilful default in payment of arrears rent and that the claim of the landlord that the building is required for his own use and i occupation for non-residential purposes was not bona fide. the rent controller, after.....
Judgment:
ORDER

G. Ramanujam, J.

1. This revision is filed by the landlord against the order of the Appellate Authority constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) affirming the order of the Rent Controller, dismissing his eviction petition filed against the respondent tenant.

2. The landlord/petitioner herein filed an eviction petition under Section 10(2)(i) of the Act for wilful default in payment of rent and under Section 10(3)(a)(iii) of the Act based on his requirement of the building for his use and occupation for the purpose of carrying on his own business; The tenant-respondent resisted the said eviction petition on the ground that he has not committed wilful default in payment of arrears rent and that the claim of the landlord that the building is required for his own use and I occupation for non-residential purposes was not bona fide. The Rent Controller, after considering the evidence, both oral and documentary adduced by both parties, held that the tenant had not committed wilful default in payment of the monthly rents and that the claim of the landlord that he requires the premises for his own use and occupation for purposes of carrying on his own business is not bona fide. In that view, the Rent Controller dismissed the eviction petition. On appeal, the Appellate Authority has agreed with the view of the Rent Controller confirmed his order dismissing the eviction petition.

3. In this revision filed by the landlord against the findings rendered by the Rent Controller as well as the Appellate Authority in respect of both the grounds of eviction has been questioned. However, I do not see how the landlord could challenge the concurrent finding of the Rent Controller as well as the Appellate Authority that the tenant has not committed wilful default in payment of arrears of rent. It is well-established that a concurrent finding based on evidence be interfered with in revision by the High Court exercising jurisdiction under Section 25 of the Act. Therefore, the concurrent finding of both the authorities below that the tenant had not committed wilful default in payment of arrears of rent, cannot be successfully questioned before this Court.

4. So far as the finding rendered by the authorities below that the requirement of the premises by the landlord was not bona fide is concerned, the learned Counsel for the petitioner/landlord contends that though that finding is a concurrent one, it could be interfered with by this Court as that finding has been rendered without reference to the relevant statutory provisions applicable to the case. According to the learned Counsel for the landlord, the Rent Controller as well as the Appellate Authority have proceeded to adopt the test applicable to a case to determine the bona fide or otherwise of the landlord in requiring the premises for his own occupation as a case falling under Section 10(3)(a)(i) of the Act ignoring the fact that Section 10(3)(a)(iii) of the Act is differently worded from Section 10(3) (a) (i) of the Act. The learned Counsel seeks support for his submission that the authorities below have not applied the correct statutory provision from the decision of Mohan, J., in Mahalakshmi Metal Industries v. K. Suseeladevi : (1982)2MLJ333 .

5. Before I proceed to consider the scope of the said decision and its applicability to the facts of this case, the relevant facts can be touched upon. The petitioner is the landlord of the premises viz., Shop. No. 2 in New Door No. 65, Irusappa Gramani Street, Triplicane, Madras-5. According to the landlord, the respondent is a tenant in respect of that shop, which he is using as a non-residential premises. The landlord is carrying on business in matresses, pillows and mats in New Door No. 256, Pycrofts Road, Triplicane, Madras-5 under the name and style of M/s. A. Sheik Meera Sahib and Sona on a monthly rent of Rs. 140. The landlord has alleged in his eviction petition that he wishes to run his business in his own place and for this purpose, he requires the shop under the occupation of the tenant. His further case is, that he does not own any other building in the city of Madras to carry on the businesses on his own. On these facts, the landlord sought for the eviction of the tenant under Section 10(3)(a)(iii) of the Act.

6. In the counter-affidavit filed by the tenant, he had stated that the landlord had no bona fide intention of occupying the shop in question for his own use, that his attempt is only a ruse to get higher rent from the tenant and that in fact, the landlord had demanded a higher rent sometime before the filing of the eviction petition, which the tenant refused to pay and that therefore, the filing of the eviction petition on the ground that he requires the shop for his own use has to be rejected. As already stated, the Rent Controller has held on this aspect of the case, that the landlord has been carrying on his business in pillows, metresses and mats at Row No. 256, Pycrofts Road, Triplicane, Madras-5 for about 49 years, that he has also got a god own quite opposite to the said premises, that he has not shown any compelling circumstances to shift the place of business from the present place, where he would be having his own customers, that no businessmen would intend to shift his business just for purpose of running the business in his own place. Thus, the Rent Controller has proceeded on the basis that since the shifting of the landlord's business from the present rented premises to his own premises will not be a prudent act, the landlord's alleged intention to shift the business from the rented premises to his own premises is only a ruse for evicting the tenant somehow or other and that therefore, his requirement cannot be said to be bona fide. When the matter came before the Appellate Authority, the Appellate Authority had proceeded to hold that the requirement of the premises in question, which is in the occupation of the tenant, for the purposes of shifting the landlord's own business, is not bona fide. In this view, the Appellate Authority has affirmed the view taken by the Rent Controller. It is with reference to the said finding given by the authorities below that the requirement of the premises by the landlord for his own use and occupation is not bona fide the learned Counsel for the landlord refers to the judgment of Mohan, J , referred to above and contends that both the authorities below have really misconceived the relevant scope of Sections 10 (3) (a) (i) and 10(3) (a) (iii) of the Act According to the learned Counsel, the question whether the landlord's requirement is bona fide will arise only in a case arising under Section 10(3) (a) (i) of the Act and not to a case arising under Section 10(3)(a)(iii) of the Act and therefore, the authorities below are in error in applying the test applicable to cases arising under Section 10(3) (a) (i) of the Act to a case arising under Section 10(3)(a)(iii) of the Act. According to the learned Counsel for the landlord, in cases arising under Section 10(3)(a)(iii) of the Act, the claim of the landlord, once it is found to be bona fide, has to be accepted by the Rent Controller, though in cases arising under Section 10(3) (a) (i) of the Act, where a landlord requites a residential premises for his own occupation when he is not occupying a residential premises of his own in the city, be can get an order of eviction only if his requirement is shown to be bona fide. However, a landlord of a non-residential building can apply for eviction under that provision if he is not occupying any non-residential building for the purposes of his business, which he is carrying on and the Rent Controller has to merely satisfy himself whether the claim of the landlord is bona fide. Thus, in cases arising under Section 10(3) (a) (i) of the Act, the Rent Controller has to find out whether the requirement of the landlord is bona fide. But, in cases arising under Section 10(3) (a)(iii) of the Act, the landlord has to show that his claim is bona fide. Thus, the learned Counsel for the landlord makes a distinction between cases arising under Section 10(3) (a) (i) of the Act and those arising under Section 10(3)(a)(iii) of the Act with reference to the power of the Rent Controller to order eviction. The contention put forward by the learned Counsel for the landlord finds support from the decision of Mohan, 7., in Mahalakshmi Metal Industries v. K. Suseeladevi : (1982)2MLJ333 . In that case, it has been pointed out that the word 'requirement' is not used anywhere in Section 10(3)(a)(iii) of the Act or in Section 10(3) (e) of the Act, which deal with the power of the Rent Controller, and that it is not for the Courts equate the word 'claim' occurring in Section 10(3) (e) with 'require' and when the legislature has avowedly used 'claim' in contradistinction to the word 'require', the cases arising under Section 10(3)(a)(iii) of the Act cannot receive the same treatment from the Rent Controller as the cases arising under Section 10(3) (a) (i) of the Act. In that case, in more or less similar circumstance, the Court held that Section 10(3)(a)(iii) of the Act is an enabling provision for the landlord to apply to the Rent Controller and if he satisfies that the conditions stated therein are fulfilled, an order for eviction would normally ensue and once the claim of the landlord is found to be in good faith and is actuated by bona fide, the Rent Controller has to accept the claim and order eviction. In short, the Court in that case, has laid down that when in respect of case arising under Section 10(a) (3) (i) of the Act, what has to be decided by the Rent Controller is whether the requirement of the landlord is bona fide but in a case coming under Section 10(3)(a)(iii) read with Section 10(3) (a) of the Act, what is to be decided by the Rent Controller is whether the claim of the landlord is bona fide. The Court also pointed put in that case, that in all the cases the claim falling under Section 10(3)(a)(iii) of the Act could be taken to be bona fide. The Court has referred to an earlier decision of a Bench of this Court in N. Sampathu Chetty v. S.V. Bapulal (1967) 1 M.L.J. 289, wherein it has been held that the expression 'bona fide' will have to be understood in the context that the landlord honestly desires to occupy the premises for which he sought for eviction and his aim is not to serve an oblique purpose. The Court has also referred to the decision in Selvaraj v, Narasimha Rao : (1969)1MLJ587 , wherein it was held that the quality and content of the expression 'bona fide' appearing in the various sections of the Act and for purposes therein enumerated have to be weighed and construed in different lines under different circumstances having regard to the context in which the expression appears, and expressed the view that so long as the landlord honestly desires to occupy the premises and his claim is not a device to serve an oblique purpose, the landlord's claim that he wants to occupy his own premises for the purposes of carrying on his own business should be taken to be bona fide. In the case on hand, already stated, the facts are more or less similar to the facts that give rise to the decision of Mohan, J, in Mahalakshmi Metal Industries v. Suseela Devi : (1982)2MLJ333 . I am inclined to agree with the view taken by Mohan, J., in that case. Section 10(3)(a)(i) of the Act uses the expression 'if the landlord requires' and naturally, in cases Coming under that sub-section, the Rent Controller has to see whether the requirement is bona fide. But the expression 'require' does not occur in Section 10(3) a) (iii) of the Act and it merely enables the landlord to apply to the Controller for an order of eviction in case the landlord is not occupying for purposes of business which he is carrying on, any non-residential building in the city, which is his own. Therefore, in respect of a claim made under Section 10(3)(a)(iii) of the Act, the Rent Controller had no justification to go into the question whether the requirement of the landlord is bona fide. When the provisions under Section 10(3)(a)(iii) and 10 (3) (a) (i) use different expressions, it should be taken that the Legislature intended these provisions to have different expressions, it should be taken that the Legislature intended these provisions to have different operations. Thus, once the landlord establishes that he is carrying on business in a premises, which is not his own, and that he has no other residential premises of his own in the city, except the building in respect of which eviction is sought, the Rent Controller has to find whether the claim made by the landlord is true and the claim is not for any oblique purposes. In such cases, it is not for the Rent Controller to go into the question as to whether the requirement of the premises is bona fide or not If the conditions set out in Section 10(3)(a)(iii) of the Act are found to be satisfied on enquiry by the Rent Controller then, unless the application filed by the land' lord under that section is found to be for any oblique purpose, the Rent Controller cannot reject that application.

7. In this case, as already stated, the Rent Controller rejected the landlord's claim under Section 10(3)(a)(iii) on the ground that the landlord, as a prudent business man, would not shift from a spacious place where he is carrying on the business at present to a small place like the premises, in respect of which eviction is sought. Thus according to the Rent Controller, the landlord will not be acting in a prudent manner, if he shifts the premises from the rented premises to his own. Whether the act is a prudent one or not, to a certain extent may be a factor for determination of the question whether the requirement of the landlord is bona fide. But that cannot be a relevant matter for considering the question whether the true conditions set out in Section 10(3)(a)(iii) have been shown to exist and whether the claim of the landlord is made for an oblique purpose. The Appellate Authority also has dealt with the question as to whether it will be prudent on the part of the landlord to shift his business from the rented premises which is more spacious than the premises in question, which it too small for carrying on the business of the landlord. The appellate authority has also referred to the fact that on some earlier occasion the landlord had demanded a higher rent from the tenant. The mere fact that at an earlier stage the landlord had demanded enhanced rate of rent, will not show that the claim of the landlord that he wants the premises for his own occupation is either mala fide or oblique. It may be proved that the claim of the landlord is true and bona fide for in cases where the landlord is not able to get suitable or higher rate of rent for his premises, he may think it worth while to shift his business from the rented premises to his own premises. Therefore merely because there was at some stage, a demand by the landlord for higher rent, the application seeking his own premises for carrying on his business, cannot be said to be either mala fide or that the application for eviction is filed for an oblique purpose In this view of the matter, the orders of the authorities below holding that the landlord's requirement is not bona fide, cannot legally be supported. Therefore . the orders of the learned Rent Controller as well as the appellate authority, which in turn confirms the order of the Rent Controller, are set aside and there will be an order of eviction against the respondents on the ground that the landlord is entitled to occupy the premises in question for the purpose of carrying on his own business as admittedly he has no non-residential premises of his own in the city for the purpose of carrying his business. No order as to costs. The respondent, is however, granted three months time for vacating the premises.


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