Skip to content


A. Emberumanar and anr. Vs. K. Raghava - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)2MLJ383
AppellantA. Emberumanar and anr.
RespondentK. Raghava
Cases ReferredM. Abdul Rahman v. S. Sadasivam
Excerpt:
.....any impression entertain ed by the respondent in his mind that the old arrangement regarding the payment of rents once in two or three months held good. purporting to be the rent for 15 days in october, 1980 and november and december, 1980 and also the rental advance for one month as well as security deposit for two months. p-11 the respondent could not have entertained any impression that the previous arrangement held good. p-3 would show that the petitioners have clearly charged the respondent with having committed wilful default and accepted the payment of rs. that the prior arrangement with the previous landlord would not hold good was communicated to the respondent by the vendor of the petitioners themselves. 3691 of 1982 dated 9-2-1984. on the other hand, the learned counsel for..........december,1980. it was the further case of the petitioners that they are carrying on business in a rented premises under the name and style of 'rasi enterprises' at door no. 23 (old door no. 82), armenian street, madras-1 and that the petitioners bona fide needed the premises in the occupation of the respondent for the purpose of their own business. on the aforesaid grounds, the petitioners filed hrc. no. 1859/81 before the rent controller (xi judge, court of small causes) madras, under sections 10(2)(i) and 10(3)(a)(iii) of the tamil nadu buildings (lease and rent control) act 18 of 1960, as amended by act 23 of 1973 (hereinafter referred to as 'the act') praying for an order of eviction.2. the respondent, while admitting the tenancy under the petitioners, contended that the previous.....
Judgment:
ORDER

V. Ratnam, J.

1. The petitioners are the owners of the house, ground and premises bearing door No.6, Sarojini Street, Mahalingapuram, Madras-34, having purchased the same on 16-10-1980. The respondent is a tenant in occupation of the ground floor of the building for non-residential purposes on a monthly rent of Rs. 425/- payable on or before the 1st of the succeeding English calendar month. According to the case of the petitioners, after the property was purchased by them, they demanded the rent payable by the respondent for the period from 16-10-1980 onwards but that the respondent did not pay the rents every month but paid the rent on 17-1-1981 including the rent for the month of December, 1980 and that the respondent had committed wilful default in the payment of rent for 15 days in October, 1980 and for November and December,1980. It was the further case of the petitioners that they are carrying on business in a rented premises under the name and style of 'Rasi Enterprises' at door No. 23 (old door No. 82), Armenian Street, Madras-1 and that the petitioners bona fide needed the premises in the occupation of the respondent for the purpose of their own business. On the aforesaid grounds, the petitioners filed HRC. No. 1859/81 before the Rent Controller (XI Judge, Court of Small Causes) Madras, under Sections 10(2)(i) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as 'the Act') praying for an order of eviction.

2. The respondent, while admitting the tenancy under the petitioners, contended that the previous owner used to collect the rents once in two or three months and that he had to stay in Bombay for a long period and on his return a sum of Rs. 2,337-50 p. representing the rents for 15 days in October, 1980 and November and December, 1980 and a sum of Rs. 850/-towards security deposit and Rs. 425/-towards rental advance for one month were paid and that subsequently on 31-1-1981, the rent for January, 1981 was also paid and, therefore, there was no wilful default in the payment of rents for the period between 16-10-1980 and 31-12-1980. The bona fides of the need of the petitioners for the purpose of carrying on their own business in hardware was disputed by the respondent. The respondent also contended that the petitioner was only desirous of securing enhanced rent from the respondent and only with this view, the application for eviction had been filed.

3. Before the Rent Controller (XI Judge, Court of Small Causes) Madras, on behalf of the petitioners, the first petitioner was examined as P.W.I and Exhibits P. 1 to P. 11 were filed, while, on behalf of the respondent, R.W.I gave evidence and Exs.R-1 to R-4 were marked. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that the case of the petitioners that ' they bona fide needed the premises in the occupation of the respondent for their own business use and occupation was not established. However, on the question of the non-payment of the rent for 15 days in October, 1980 and November and December, 1980 in time, the learned Rent Controller found that the respondent had not tendered the rent and had no explanation for such non-payment and under those circumstances the default could only be wilful. In view of this conclusion, an order of eviction was passed against the respondent. Aggrieved by the order of the learned Rent Controller directing the eviction of the respondent on the ground of wilful default, the respondent herein preferred an appeal RCA. 95/82 before the Appellate Authority (II Judge, Court of Small Causes), Madras. The petitioners also preferred an appeal in RCA 114/82 before the Appellate Authority (VII Judge, Court of Small Causes, Madras), in so far as an order for eviction based on Sec.l0(3)(a)(iii) of the Act was refused by the Rent Controller. The Appellate Authority (II Judge, Court of Small Causes), Madras, while dealing with RCA.95/82 found that the respondent was only careless or negligent in the payment of rents and that cannot be considered to be either wanton or deliberate as to attract the consequences of a wilful default in the payment of rents. In that view, the Appellate Authority set aside the order of eviction passed by the learned Rent Controller on this ground. In the other appeal in RCA. 114/82, the Appellate Authority (VII Judge, Court of Small Causes), Madras, affirmed the dismissal of the application for eviction on the ground that the need of the petitioners under Sec.10(3)(a)(iii) of the Act was not bona fide. In that view, that appeal was dismissed. The result was that the application for eviction filed by the petitioners stood dismissed. It is against these orders in RCA. Nos. 95 and 114/82 that the petitioners have preferred CRP. Nos. 3940 and 4648 of 1982 respectively.

4. The learned Counsel for the petitioners submitted that after the purchase of the property by the petitioners from the previous owner, the vendor of the petitioners had issued a notice under Ex.P-11 dated 24-10-1980 and thereafter the petitioners had also on several occasions demanded the payment of rent from the respondent, but that the respondent did not pay and such non-payment of rents after the issue of a notice and also after demands made, would only amount to wilful default in the payment of rents as to merit the passing of an order for eviction. On the other hand, the learned Counsel for the respondent would submit that the previous owner of the property used to come and collect the rent once in two or three months and that the respondent was lulled into a false sense of security by the attitude of the prior landlord, that even with reference to the petitioners the rents could be paid once in two or three months and that, therefore, the non-payment of the rents for 15 days in October, 1980 and November and December, 1980 would not amount to wilful default in the payment of rents. It was also the further contention of the learned Counsel that on 17-1-1981 the rents paid for the 15 days in October, 1980 and November and December, 1980 had been received by the petitioners without prejudice and that would suffice to cure the wilful default, if any, committed by the respondent in the matter of rents.

5. The period in respect of which the respondent is stated to have committed wilful default is between 16-10-1980 and 31-12-1980. Even according to the terms of the tenancy as set out by the petitioners, the rent was payable on or before the 1st of the succeeding English calendar month. Under Ex.P-11 dated 24-10-1980, the prior owner of the property bearing door No.6, Sarojini Street, Mahalingapurarn, Madras-34, one Rm. AR. Subramanyam, had informed the respondent about the sale of the property under a deed of sale dated 16-10-1980 and drawing attention to the occupation of that premises by the respondent as a tenant on payment of a monthly rent of Rs. 425/- had directed the respondent to pay the rent to the petitioners herein on and from 16-10-1980. The evidence of R.W.I is to the effect that he received Ex.P-11, though at that time he was in Bombay. He would also further admit that in November, 1980 he knew about the purchase of the property by the petitioners and that he was under the obligation to pay the rent to the petitioners. It is the further admission of R.W.I that for 15 days in October, 1980 and November and December, 1980, the rent was sent only on 17-1-1981. It is thus clear even from the evidence of R.W.I that in November, 1980 he became aware of the sale of the property in favour of the petitioners as well as his obligations to pay the rent in respect of the premises under his occupation to the petitioners. In spite of it, the respondent did not make the payment of rents for 15 days in October, 1980 and November and December, 1980, though he had been put on notice that such payment should be, made to the petitioners. Whatever might have been the arrangement between the prior owner of the property and the respondent in relation to the payment of rents, on the issue of the notice by the vendor of the petitioners under Ex. P. 11, it was made clear to the respondent that on and from that date, the rents had to be paid every month to the petitioners. If even after having been put on such notice the respondent did not pay the rent, then such non-payment could not be on account of any impression entertain ed by the respondent in his mind that the old arrangement regarding the payment of rents once in two or three months held good. It is seen from Ex.R.2 that only on 17-1-1981, the respondent had sent a cheque for Rs. 2,337-50 p. purporting to be the rent for 15 days in October, 1980 and November and December, 1980 and also the rental advance for one month as well as security deposit for two months. In that letter, the reason for the delayed payment is stated to be on account of the absence of the proprietor away in Bombay in connection with some film production and also on account of the arrangement that existed between the previous owner and the respondent under which the rent, used to be collected by the landlord himself once in two or three months. Earlier it has been pointed out how as a result of the issue of Ex.P-11 the respondent could not have entertained any impression that the previous arrangement held good. That cannot, therefore, be put forward as a reason for the delay in the payment of rents. Regarding the absence of the respondent away in Bombay, it is seen from the evidence of P.W.I that the petitioners had made a demand on the respondent for the payment of rent on three occasions and that though on all those three occasions they could not meet the respondent, yet, the Manager in charge promised to pay the rent. It is, therefore, evident from the evidence of P.W.I, which has not been established to be in any manner unacceptable, that demands had been made by the petitioners on the respondent for the payment of rents and even those demands had not been complied with. The rents, though paid belatedly, were accepted by the petitioners without prejudice and that would mean that they had not excused the delay or default in the payment of rent already committed by the respondent. The Appellate Authority had not adverted at all to the evidence of P.W.I regarding the demands made by him, but was of the opinion that the reason given for the belated payment, namely, the absence of the respondent, away in Bombay was a justifiable excuse for the belated payment. Even assuming that the respondent was obliged to be away on his own business, especially after a, notice had been admittedly received by him under Ex.P.11, he became fully aware of his obligation to pay the rent to the petitioners and should have made every arrangement to meet such demands regularly, if he was desirous of avoiding the consequences of a non-payment of rent amounting to wilful default. The Appellate Authority was also of the opinion that the petitioners had not taken serious note of the default in the payment of the rent and had relied upon Ex.P-3 for this purpose. A perusal of Ex. P-3 would show that the petitioners have clearly charged the respondent with having committed wilful default and accepted the payment of Rs. 2,377-50 without prejudice to their rights to take steps for the default already committed by the respondent. It is, therefore, not correct to say that the petitioner had not taken the default committed by the respondent seriously in Ex. P-3. It is true that in Ex. P-1 dated 20-12-1980 there is no mention of the respondent not having paid the rent for 15 days in October, 1980 and November, 1980. Indeed, the contents of that letter show that the petitioners were concerned with securing the keys of three gates situate in the portion occupied by the respondent and it was only for that purpose that they had addressed that letter under Ex.P-1. The omission to mention about the wilful default in the payment of rents for 15 days in October, 1980 and November, 1980 in Ex.R-1 while demanding the keys is not conclusive. It may be that the default, in the payment of the rent was not for a long period. But that would not really make the default any the less wilful default, if otherwise the evidence indicates that it was so. Earlier, it had been noticed how the vendor of the petitioners had himself directed the respondent to pay the rents to the petitioners under Ex. P-11, which was admittedly received by the respondent. In spite of it, the respondent did not pay the rent to the petitioners for 15 days in October, 1980 and November and December, 1980 as and when the rents fell due, but made the payment only on 17-1-1981 without any justification or excuse. That the prior arrangement with the previous landlord would not hold good was communicated to the respondent by the vendor of the petitioners themselves. The evidence of P.W.I as referred to earlier discloses that demands were made in person by him for the payment of rents for the period, though he did not actually do so. The payments when made belatedly were accepted by the petitioners without prejudice to the rights to evict him on the ground of wilful default. Taking into account all these circumstances and the absence of any acceptable explanation for the non-payment of the rents by the respondent for the period in question, the conclusion is irresistible that the respondent had committed wilful default in the payment of rent for 15 days in October, 1980 and also for the month of November and December, 1980. The conclusion of the Appellate Authority contra cannot be supported on the materials on record.

6. The learned Counsel for the petitioners next contended that the Appellate Authority after having found that the petitioners are carrying on business in a rented premises bearing door No. 23 (old door No. 82) Armenian Street, Madras, misdirected itself by taking into account irrelevant considerations in dealing with an application under Section 10(3)(a)(iii) of the Act. Elaborating this, the learned Counsel submitted that according to Section 10(3)(a)(iii) of the Act, the sufficiency or the adequacy of the available space where the existing business is being carried on, the suitability of the locality, the absence of a pressing need to shift the business to another place, the absence of any expansion in the business that is being carried on would all be totally irrelevant as the only condition to be fulfilled before an order for eviction under Section 10(3)(a)(iii) of the Act can be secured is that the landlord should not be in occupation of a non-residential building of his own for the purpose of his business and if that is fulfilled, then the other considerations would all be not relevant at all. The difference in the language of Section 10(3)(a)(i) and 10(3)(a)(ii) on the one hand and 10(3)(a)(iii) on the other and the absence of the expression 'requires' in Section 10(3)(a)(iii) of the Act were also relied upon by the learned Counsel for the petitioners to contend that the other considerations would all be irrelevant and that the only thing that need be established is that 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 his own and if that is established the bona fides of the requirement would also follow under Section 10(3)(e) of the Act without the necessity for establishing the other considerations adverted to by the Appellate Authority. Reliance in this connection was placed upon the decisions in M/s. Mahalakshmi Metal Industries v. Suseela Devi : (1982)2MLJ333 , and M. Abdul Rahman v. S. Sadasivam, C.R.P. No. 3691 of 1982 dated 9-2-1984. On the other hand, the learned Counsel for the respondent would submit that the considerations adverted to by the Appellate Authority would all be relevant in judging the bona fides of the need and in this case it is clearly established by Exhibit P. 3 that the petitioners were only anxious to secure higher rent from the respondent and that would detract from the bona fides.

7. A careful consideration of the language employed in Section 10(3)(a)(iii) of the Act shows that before an order for eviction can be secured under that section all that the landlord need establish is that he 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 his own. In other words, the landlord will not be entitled to secure an order for eviction against a tenant in occupation of a non-residential building, if he or any member of his family is in occupation of a non-residential building of his own where he is carrying on business. The Section does not demand the fulfilment of any other consideration. In cases falling under Section 10(3)(a)(iii) of the Act, when once the landlord establishes that he is carrying on business in a rented premises and that he has no other non-residential building of his own except the building in respect of which eviction is sought, the Rent Controller has to enquire whether the claim made by the landlord is true and not for any oblique or other purposes. The Rent Controller cannot be investigating into questions like the convenience, suitability, expanding business, pressing need, etc. No doubt, under Section 10(3)(a) of the Act, the Rent Controller should also be satisfied that the claim of the landlord is bona fide. That would call for an examination of the claim of the landlord whether it is in good faith or is actuated by mala fides or otherwise motivated. The connotation of the expression 'claim' used in Section 10(3)(e) of the Act is not the same as that of 'requires' in Section 10(3)(a)(i) and 10(3)(a)(ii) of the Act, which is significantly absent in so far as Section 10(3)(a)(iii) of the Act is concerned. Put otherwise, in cases arising under Section 10(3)(a)(iii) of the Act, the claim of the landlord, when 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) and 10(3)(a)(ii) of the Act, before an order for eviction can be obtained, the landlord should establish his requirement and that has to be shown to be bona fide. In M/s. Mahalakshmi Metal Industries v. Suseela Devi : (1982)2MLJ333 , it was held that Section 10(3)(a)(iii) of the Act is an enabling provision and if the Rent Controller is satisfied that the conditions 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 actuated by bona fides, the claim has to be accepted and eviction ordered. The distinction between the two, 'bona fides of the requirement' with reference to Section 10(3)(a)(i) and 10(3)(a)(ii) of the Act and 'bona fides of the claim' in cases falling under Section 10(3)(a)(iii) of the Act has been brought out in that cases. Under Section 10(3)(a)(iii) of the Act, the claim has to be taken to be bona fide, subject to the fulfilment of the other requirements under Section 10(3)(a)(iii) of the Act. Again, in M. Abdul Rahman v. S. Sadasivam, C.R.P. No. 3691 of 1982 dated 9-2-1984, Ramanujam, J., held that once the landlord establishes that he is carrying on business in a premises which is not his own and that he has no other non-residential building of his own in the city except the building in respect of which eviction was sought for, the Rent Controller has to find out whether the claim is true and not motivated by any oblique purpose and in such cases there is no need to investigate whether the requirement of the premises is bona fide or not and that if the conditions set out in Section 10(3)(a)(iii) of the Act are satisfied, then the application for eviction cannot be rejected. The Appellate Authority in this case, has proceeded to state that there is no material to establish the sufficiency or otherwise of the space available with reference to the business in hardware being carried on by the petitioners in the rented premises. The Appellate Authority also made much of the fact that there, is no evidence to show that the non-residential building in occupation of the respondent is situate in a suitable commercial locality for dealing in hardware. Reliance has also been placed by the Appellate Authority on the ground that the petitioners have not established any pressing need to shift the business that is now being carried on by them in the rented premises and that the existing business had not been shown to be an expanding one. Apart from the fact that these are not the considerations which would be relevant in dealing with an application under Section 10(3)(a)(iii) of the Act, as pointed out, earlier it is for the petitioners to carry on the business in their own place irrespective of other considerations, like the sufficiency of the space, the suitability of the area, etc. It is not as if that for the purpose of securing an order for eviction under Section 10(3)(a)(iii) of the Act, the landlord has to establish that the premises where he is carrying on business is insufficient or that the premises in respect of which an order for eviction is sought for is in a better business locality or that he has been threatened by his landlord to vacate and hand over vacant possession of the premises in his occupation as a tenant. There is also no need, according to Section 10(3)(a)(iii) of the Act, that the landlord should show any expansion in his business before he can seek an order for eviction under that Section. As pointed out earlier, the Rent Controller has to be satisfied that the claim is bona fide. In this case, the Appellate Authority has relied upon Ex. P. 3 as establishing that the requirement of the petitioners is not bona fide. That notice (Ex. P. 3) has been interpreted by the Appellate Authority as indicating that the petitioners were more anxious to secure higher rent rather than the premises in the occupation of the respondent for the purpose of carrying on their own business. That is totally an erroneous view to take with reference to Ex. P. 3. In paragraph 3 there in, the petitioners have reiterated their requirement of the premises in the occupation of the respondent for their non-residential purposes. Having stated that, the petitioners further proceed to state that if they are obliged to resort to Court, that process is likely to take considerable time and that during the pendency of the proceedings, they need not be put to any loss and with a view to see to it that they are not put to any such loss, the respondent may consider the payment of rent of Rs. 1,500/- or at Rs. 1,250/- as a matter of concession. Exhibit P. 3 no doubt mentions that the fair rent of the premises would be around Rs. 1,500/- and winds up by saying that along with the application for owner's occupation for non-residential purposes an application for fixation of fair rent will also be presented. Ordinarily construed, the contents of Exhibit P.3 do not throw any serious doubt at all, about the bona fides of the requirement of the petitioners. After setting out their requirement for purposes of their own business, which is being carried on in a rented premises, the petitioners reaffirmed such requirement, but merely stated that if they are obliged to resort to Court for securing an order for eviction, that process is likely to occupy considerable time and during such time they need not be put to any loss, but that can be' mitigated by the payment of a monthly rent of Rs. 1,250/- by the respondent as a matter of concession. The idea behind this notice is certainly not to demand only enhanced rent from the respondent by holding out a threat of eviction under the guise of requirement for purposes of business that is being carried on by the petitioners in a rented premises. On a fair reading of Exhibit P.3 as a whole it appears that it merely reflected the bona fides of the claim of the petitioners to the premises in the occupation of the respondent for purposes of business which is admittedly being carried on by them in a rented premises. Under those circumstances, Ex.P.3 cannot be pressed into service by the respondent to establish that the requirement of the petitioners is motivated and is not bona fide. The Appellate Authority was, therefore, in error in having rejected the application of the petitioners u/s.10(3)(a)(iii) of the Act on totally irrelevant and invalid grounds. Consequently, the orders of the Appellate Authority cannot be sustained and they are hereby set aside. The C.R. Ps. are, therefore, allowed and an order for eviction is passed against the respondent herein on both the grounds set out by the petitioners in HRC.1859/81. There will be no order as to costs.

8. The learned Counsel for the respondent submitted that in the event of an order for eviction being passed against the respondent, the respondent may be granted a reasonable time to vacate and hand over vacant possession of the premises in his occupation to the petitioners. The learned Counsel for the petitioners had no objection to grant three months' time for that purpose. Accordingly, the respondent will have 3, months' time from this day to vacate and hand over vacant possession of the premises in his occupation to the petitioners. But this will be subject to the condition that the respondent should file an affidavit of undertaking before this Court within one week from this day to that effect, failing which the order of eviction can be put into execution forthwith.


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