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M. Thangiah Nadar and Sons a Registered Partnership Firm Represented by One of Its Partners T. Pandirajan Vs. R. Rajathi Ammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ161
AppellantM. Thangiah Nadar and Sons a Registered Partnership Firm Represented by One of Its Partners T. Pandi
RespondentR. Rajathi Ammal
Cases ReferredEswaran Chettiar v. Subbarayan
Excerpt:
- - where a tenant with a view to expand his business enters into partnership with others in another like business and sells the goods of that partnership also along with his, there is no contravention of the rule against sub-letting under the act. therefore the lease amount which the lessor receives should contain in it an element of rent for the building which is used to house the machinery as well as the rent for the use of the machinery. the ratio adopted by the learned and eminent judges is based upon the well-known principle that subletting is not to be considered in the abstract but, has to be viewed with reference to the positive facts appearing in each case. closely allied with this fundamental concept of interpretation is the doctrine explained in the maxim a verbia legis.....r. sengottuvelan, j.1. this civil revision petition is filed by the tenant occupying door no. 38, ghitrakkara street, madurai, a non-residential premise?, against whom an order of eviction is passed by the appellate authority and the principal subordinate judge, madurai in g.m.a no. 288 of 1978, originally the landlady, the respondent herein, who is the owner of the above-said premises filed an application in r.c.o.p. no. 191 of 1978 on the file of the court of the rent controller and the district munsif, madurai taluk for evicting the tenant on the ground that the tenant had sub-let the premises under section 10(2)(ii)(a) of the tamil nadu buildings (lease and rent control) act, hereinafter referred to as the act and on the ground that the landlady requires the premises for her own.....
Judgment:

R. Sengottuvelan, J.

1. This civil revision petition is filed by the tenant occupying Door No. 38, Ghitrakkara Street, Madurai, a non-residential premise?, against whom an order of eviction is passed by the appellate authority and the Principal Subordinate Judge, Madurai in G.M.A No. 288 of 1978, Originally the landlady, the respondent herein, who is the owner of the above-said premises filed an application in R.C.O.P. No. 191 of 1978 on the file of the Court of the Rent Controller and the District Munsif, Madurai Taluk for evicting the tenant on the ground that the tenant had sub-let the premises under Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act and on the ground that the landlady requires the premises for her own business under Section 10(3)(a)(iii). The learned Rent Controller after considering the evidence let in by both the sides found against the landlady on the above-said both the grounds and dismissed the rent control petition. As against the order of dismissal the landlady filed C.M.A. No. 288 of 1978 on the file of the Court of the appellate authority and the Principal Subordinate Judge and the learned Appellate authority after considering the material on record confirmed the order of the Rent Controller regarding the claim for eviction on the ground that the landlady requires the premises for her own use and reversed the finding of the Rent Controller in respect of the claim for eviction on the ground that the tenant had sub-let the premises and ordered eviction of the tenant. This civil revision petition is filed by the tenant against the order of eviction passed by the appellate authority on the ground that the tenant had sub-let the building.

2. Since the landlady prayed for eviction on both the grounds viz., the requirement of the premises for her own use and on the ground the tenant had sub-let the premises and eviction was ordered only on the ground that the tenant had sub-let the premises, the landlady also challenged the finding of the appellate authority regarding the rejection of her claim for eviction on the ground that she requires the premises for her own us?. Inasmuch as the claim of the landlady for eviction on the ground that she requires the building for her own business was negatived by the appellate authority and eviction was ordered en the other ground viz., sub-letting, the landlady could not have filed an appeal against the conclusion arrived at by the appellate authority with regard to the claim for eviction on the ground that she requires the premises for her own use. Hence the landlady is entitled to press her claim for eviction on the ground that she requites the premises for her own use and to show that the order of the appellate authority in this respect cannot be sustained. The landlady has such a right in this civil revision petition is laid down by a decision of a single judge of this Court reported in K. Venkata-ramani v. S. Afavamuthan and Ors. : (1981)1MLJ516 Before considering the two questions that arise for decision in this revision viz., whether the landlady is entitled to an order of eviction on the ground of subletting an' on the ground that she requires the premises for her own business certain facts will have to be stated.

3. The tenant took on lease the premises bearing Door No. 38, Chitrakkara Street, Madurai for non-residential purpose and has been conducting business in jaggery for the past many years. The tenancy is as per Tamil calendar month and the monthly rent is Rs. 350 payable on or before 10th of the next succeeding Tamil month. The landlady is also the owner of the premises bearing door No. 188 East Masi Street, Madurai and the case of the landlady is that she is conducting business in palmyrah jaggery in partnership with her husband and her sons, in that prepemises. The specific case of the landlady before the Rent Controller was that she had been doing business in chillies in the premises bearing Door No. 138, Chitrakkara Street, Madurai. which is opposite to the petitionmentioned premises leased out to the tenant. It is also in evidence that as per Exhibit A-1 which is an extact from the O P register, relating to RCOP. No. 556 of 1975 on the file of the Court of the Rent Controller and Disirict Munsif, Madurai Town, the landlady had been ordered to be evicted from the premises bearing Door No. 138 Chitrakkara Street Madurai on an application by the landlord of that premises. The order of eviction passed against she landladyiin respect of the premises bearing Door No. 138, Chitrakkara Street, Madurai had been confirmed by High Court and the said order had become final. It is seen from the evidence in this case that the tenant is a leading merchant in jaggery in the petition-mentioned premises and the landlady is also doing business in jaggery and chillies in partnership with her husband and her two sons.

4. It is also in evidence that in the petition mentioned premises a business is also carried on by a partnership firm T. Pappammal and Company in jaggery. The partners of T. Pappammal and Company are the wife and the daughters-in-law of the tenant. Separate accounts are maintained for the business of the partnership firm in the petition-mentioned premises. Two name boards are found to be hanging in the petition-mentioned premises one in the name of the tenant and another in the name of T. Pappammal and Company.

5. The landlady, the respondent herein, also owned Door No.152, Chitrakkara Street, Madura , which had been sold by her as per Exhibit A-6, dated 7th June, 1978. Though certain allegations are made by the tenant that the landlady is in possession of other non-residential premises in the city no positive proof had been let in to that effect. The case of the landlady before the Rent Controller is that she requires the petition-mentioned premises since she had been ordered to be evicted from the premises in which she is carrying on chilllies business viz, Door No. 138, Chitrakkara Street, Madurai.

6. The finding of the appellate authority that the tenant had sub-let the premises to T. Pappammal and Company is based upon the evidence of P.W. 1, the son of the landlady. The evidence of P.W. 1 before the Rent Controller is that the tenant had sub-let the premises to T. Pappammal and Company without the written consent of the landlady. He deposed that he did not know who Pappammal is and that he does not know whether Pappammal is the wife of the tenant. He also admits that the tenant is also in occupation of the premises and that there is no partition of the premises and separate enjoyment of any portion of the premises by T. Pappammal and Company. He also deposed that there are two name boards for both the businesses and that he has no knowledge as to whether there are separate employees under the firm T. Pappammal and Company. P. W. 1 is also not aware of any rent paid by T. Pappammal and Company to the tenant. He also denies the suggestion that T. Pappammal and Company is the sister concern of the tenant. As against this evidence the tenaut who was examined as R. W. 1 deposed that he did not sub-let the premises to T. Pappammal and Company and that T. Pappammal and Company is a subsidiary firm of the tenant in which his wife and two daughters-in-law are partners and no rent is being paid by T, Pappammal and Company to the tenant. R. W. 1 deposed that there are no separate accounts or separate employees for T. Pappammal and Company and no separate portion is given to T. Pappammal and Company and that he himself h conducting the business. He also deposed that there is no separate weights and balance for T. Pappammal and Company. On this evidence the learned appellate authority came to the conclusion that the tenant had sub-let the premises to T. Pappammal and Company. The learned appellate authority caire to the conclusion that the tenant had sub-let the petition-mentioned premises on the following circumstances:

1. The partners of T. Pappammal and Company are he third-parties in the eye of law even though they are the wif<. and the daughters-in-law of the tenant;

2. The tenant himself admits of the existence of T. Pappamal and Company and that he had given credit to the goods received in excess by him in the accounts of T. Pappammal and Company.

3. The account books of T. Pappammal and Company are not produced to establish the case of the tenant that he is not receiving any rent from T. Pappammal and Company and

4. In any event since the tenant had allowed third parties to carry on a business in the petition-mentioned premises it will amount to sub-letting whether he received rent or not.

On the above said reasoning and following the dictum that there cannot be a positive proof of sub-letting by direct evidence and taking into consideration all the circumstances the appellate authority came to the conclusion that the tenant had sub-let the premises to T. Pappammal and Company and ordered eviction of the tenant on the ground of subletting. On behali of the tenant it is contended that no portion of the premises had been sub-divided and given to T. Pappammal and Company, no rents were ever paid by T. Pappammal and Company to the tenant and the tenant retained the possession of the entire premises and that T. Pappammal and Company is a subsidiary firm and it cannot be said that there was any sub-letting by the tenant to T. Pappammal and Company. On behalf of the civil revision petitioner reliance is placed upon the following decisions in support of his case.

8. In the case reported in Petroleum Workers' Union, represented by the General Secretary v. A. Mohamed and Co., Madras. : AIR1967Mad33 where the lessee, a petroleum Workers' Union allowed its sister union to conduct its meeting and thereby giving rise to a claim by the landlord for eviction on the ground of sub-letting the learned Judge observed as follows:

A sub-lease is a demise by a lessee for a lesser term than he himself has. Every lessee, however, short his term may be, may make a sub-lease unless he is restrained by the contract of the tenancy from sub-letting. if the demise is for the whole term or for a period beyond the term, it amounts to assignment. If the lessee divests himself he becomes a stranger to the demised property and he has no right to have possession delivered up to him. It is true that a covenant against subletting will restrain the assignment, but a mere covenant against sub-letting does not prohibit underletting a part of the premises, As long as the lessee remains in possession he may permit another person to use the demised premises without committing a breach of covenant, namely, not to assign, underlet or part with the possession of the demised premises.

The learned Judge also quoted with approval the following observation made in the case reported in Peebles v. Crosthwaile (1897) 13 T.L.R. 198.

No doubt the executors of the lessee let the company into possession, but they did not part with possession themselves, and so long as it was true in fact that the lessees had not parted with possession they had committed no breach of the covenant.

The learned Judge also quoted with approval the observation of Rotner, J., in the case reported in Jackson v. Simons L.R. (1923) 1 Ch. 373 : which is as follows:

A covenant against assigning the demised premises, and a covenant against parting with the possession of the demised premises are therefore distinct covenant though all belong to the same class, and if there be any other method of disposing of the demised premises thet would not amount to an assignment, under-letting or parting with possession... In the same ways a covenant against sharing the possession is another distinct covenant, for, as already pointed out, a covenant against parting with possession of the demised premises is not broken by sharing the possession with another.

The learned Judge also quoted the following passage from the case reported in Stering v. Abrahams L.R. (1931) 1 Ch. 470:

A lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession.

Eventually it was held that the lessee union permitting the other unions to conduct the meeting in the premises cannot be said to be an act of sub-letting. The tenant never parted with the legal possession of the... premises to other unions even though they gave then permission to hold their meetings and to use the premises. In the case reported in Vedachalam v. Kanniah (1957) 1 M.L.J. 24 : a single Judge of this Court observed as follows:

Where a tenant with a view to expand his business enters into partnership with others in another like business and sells the goods of that partnership also along with his, there is no contravention of the rule against sub-letting under the Act. It will be. of course, a different matter if the tenant diverts the premises to a totally different use. But this does not mean that the tenant can bring on the premises unconnected persons and allow them to trade therein and receive rents from them either as rents or as profits.

On behalf of the landlady reliance is placed upon the following cases:

9. In the case reported in Venkateswata Iyer v. Lakshmirtarayarta Rao (1964) 2 M.L.J. 44 , a single Juclge of this Court observed as follows:

It is true that so long as the tenant retains in legal possession of the demised premises the mere appointment of a manager to run the business of the tenant will not amount to sub-letting. In order to amount to sub-letting there should be a transfer of possession of the premises to the sub-tenant. But where a tenant purports to appoint a manager on the terms chat the manager is to pay him a fixed sum every month irrespective of the profits of the business, it is open to the Controller to construe the document as a make-believe transaction to evade the provisions of the Madras Buildings (Lease and Rent Control) Act and an order of eviction can be passed under Section 10(2)(ii)(a) of the Madras Buildings (Lease and Rent Control) Act.

10. In the case reported in M. Rodgers v. M. Prakash Rao Naidu : (1969)1MLJ332 the tenant who was running a Press in the premises with his machinery, stopped the business and allowed his previous manager to run the business as a lessee of the machinery. The tenant had no share in the business. In considering the claim for eviction on the ground of sub-letting by the tenant Alagiriswami, J., as he then was, observed as follows:

The machinery cannot be run unless it is placed in the premises where it is situate. So, the lessee of the machinery also gets the advantage of the use of the business premises also. Therefore the lease amount which the lessor receives should contain in it an element of rent for the building which is used to house the machinery as well as the rent for the use of the machinery. This is mere comrnonsense; It is unbelievable that the lessor would take rent for the use of the machinery alone and not take any rent for the use of the business premises and agree to pay the rent himself. He should have stipulated for a lease amount which includes both the elements. It is not answer under these circumstances against the charge of subletting to say that the lessor does not take anything separately from the lessee by way of rent for the building itself or that he himself is paying the rent to the landlord and the sub-lessee is not paying the rent to the landlord,

On the abovesaid reasoning the learned Judge came to the conclusion that there was subletting. In the case reported in The Vellare Shrof Kumaraswami Chetti Choultry by the Executive Trustee V.K. Kannappa Chettiar v. Veerasami : AIR1972Mad303 ., where a premises was let out for the purpose of conducting a laundry business and the tenant sublet the premises to another person for running a tea shop and in an application for eviction the tenant contended that since there was no sufficient income in the laundry business he himself started the tea shop and is conducting the same, Sadasivam, J., while coming to the conclusion that subletting was made out, observed as follows:

It is clear from Section 10(2)(ii)(a) of the Madras Buildings (Lease and Rent Control) Act that a tenant canaot without the written consent of the landlord transfer his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so. Hence, if a tenant sub-lets even a portion of the leasehold premises it will entail liability for eviction.

It is for the landlord to establish independently his plea that the respondent has sub-let the premises.

It is difficult to get direct evidence about the sub-lease by the tenant and it is a fact which can be proved as much by circumstantial evidence as by direct evidence.

Placing reliance on the fact that the licence for the tea shop was initially obtained in the name of the third party and subsequently transferred in the name of the tenant after the proceedings were started the learned Judge came to the conclusion that there was subletting. In the case reported in The Jamia Darus Salam Arabic College Trust by its Honorary Secretary, Kaka Haji Mohammad Omar Sahib v. B. Rajanna and Anr. (1972) 2 M.L.J. 414 K.S. Venkataraman, J., while con sidering a case where a tenant of two rooms permitted his friend to occupy a portion of one of the two rooms let out to him and thus putting himself to the inconvenience of small space for his staff and his cliente and there were separate phones and separats keys for both the tenant and the sub-tenant observed that the tenant would not have put himself to the inconvenience of limiting the space available for h is staff and clients by permitting a sub-tenant to occupy a portion of the room merely on account of friendship and rents seems to have been received from the sub-tenant by the tenant though naturally it did not find a place in the accounts of either the tenant or the subtenant. It was held that there was sub-letting.

11. We will have to apply the tests laid down in the above said decisions to find out whether the tenant can be said to have sub-let the premises to T. Pappammal and Company. The main criterion is whether the tenant had permitted the third party to occupy the premises and had divested himself completely of the possession of the premises or a part thereof. If the tenant had permitted another person to use the premises along with him it may not amount to sub-letfing. The test seems to be whether the tenant had retained the possession and control of the premises with himself. In this case T. Pappammal and Company is not put in possession of any portion of the premises and in fact there is not even a partition of the premises for the purpose of the business of T. Pappammal and Company. In the absence of exclusive possession by the partnership firm of the premises or part thereof an inference of sub-letting cannot be readily made.

12. The appellate authority seems to have been influenced by the fact that the tenant is not a partner of T. Pappammal and Company and the partners of T. Pappammal and Company are the wife and two daughters-in-law of the tenant and hence T. Pappammal and Company is a separate entity and in view of the fact that the tenant had permitted the partnership firm to use (the premises it amounts to sub-letting. But the case oi the tenant in that the partnership business in the name of T. Pappammal and Company has no separate establishment and the business is managed by the tenant himself. Even P.W. I who was examined on behalf of the landlady states that there is no exclusive possession of any part of the premises by T, Pappammal and Company and that two name boards are hanging in the premises. He also admits that he does not knew whether there is separate establishment for T. Pappammal and Company and whether T. Pappamnnl and Company are paying any rent to the tenant. The landlady had not adduced any evidence to show that the premises or any part thereof was put in separate possession of T. Pappammal and Company. In view of the fact that the partners are the wife and daughters-in-law of the tenant and the business is carried on by the tenant himself there is no possibility or any third-party being put in possession of any portion of the premises. Even if T. Pappammal and Company is construed technically as a separate entity the action of the tenant in merely permitting T. Pappammal and Company to carry on business in the premises without parting with the possession of the premises will not amount to subletting. In the case reported in P. AJ. Mohideen Sahib v. Mohammed Habibulla Sahib (1975) T.L.N.J. 53 the following observation is made:

The mere fact that another is allowed to use the premises when the lessee retains legal possession is not enough to create a sub-lease. The ratio adopted by the learned and eminent Judges is based upon the well-known principle that subletting is not to be considered in the abstract but, has to be viewed with reference to the positive facts appearing in each case. The essential sine qua non to view a particular act of the tenant as sub letting is parting with physical or legal possession of the demised premises. If there is parting with physical possession without authority the position is obvious. But if the premises demised is used by another by licence, then naturally legal squabbles come in, whether there was physical or legal parting, of possession or not. Here again, as justice should not be bereft of common sense and as the later is the governing factor in all activities, includiug a legal activity, one should consider whether putting up of a sign board by the lessee without the permission of the landlord tantatnounts to, or as the lower appellate tribunal said deemed to be, sub-letting.

The Court does not agree with the appellate Court that there is any such fiction, in the instant case. The question is whether permitting a person to put up a sign board in the demised premises would tantamount to parting with legal possession of the premises. It is not denied, nor can it be. that the lessee always retained control over the demised premises and he was constantly on the premises and kept it under his exclusive possession. The mere use of a portion of the premises, while the lessee retained juridical possession of the demised premises is not to create a sub-lease. The lower Court was, therefore, wrong in having opined that permitting a sign board to be kept in the demised premises would fictionally be subletting.

Applying these principles to the present case it is clear that the conclusion of the appellate authority which is based on the narrow technical view that legally T. Pappammal and Company is a separate entity and that will amount to sub-letting cannot be sustained. The evidence of the tenant that the business of T. Pappammal and Company is managed by him had not been controverted and as such on facts we cannot come to the conclusion that there is any transfer of possession of the premises or part thereof by the tenant to any third party. The inference drawn by the appellate authority based upon the non-production of the accounts of the tenant and that of T. Pappammal and Company also does not appear to be correct. Even P.W. 1 does not say anything about the payment of rent by T. Pappammal and Company to the tenant. If the partners of T. Pappammal and Company are not the dependants of the tenant but third parties. there may be some force in such an argument. In this case the evidence of the tenant that he is looking after the business of TPappammal and Company is not controverted by P.W-l and as such no parting of physical possession by the tenant in respect of the premises is made out. There is no transfer of the possession of the premises or a part thereof to any third party. The mere exhibition of name board of T. Pappammal and Company will not amount to transfer of possession of the premises. Applying the principles laid down in the above decisions the only conclusion that can be arrived is, the sub-letting alleged by the landlady is not made out. The finding of the appellate authority cannot be supported in this regard. Hence the order of eviction passed on the ground of sub-letting by the appellate authority cannot be sustained.

13. The second ground on which the eviction was prayed for by the landlady is under Section 10(3)(a)(iii) that the required the non-residential building for the purpose of a business which she is carrying on. The relevant section which enables the landlady to claim a nonresidential premises for his own occupation is as follows:

10(3)(a), A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the buildings (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 on village concerned which is his own:

Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered:

Provided further that where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again und r this clause.

(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.

14. It is urged on behalf of the tenant as per the above section the landlady is not entitled to claim an order of eviction since she is already in possession of the premises bearing door No. 188, East Masi Street, Madurai in which she is carrying on business in chillies and palmyrah Jaggery. Reliance is placed upon the following decision on behalf of the tenant in support of his contention:

15. In the case reported in M/s. Clamour Saree Museum and other v. The Tamil Nadu Handloom Weavers, Cooperative Soceity Limited, Madras, represented by its BusinessManagerm : (1969)2MLJ493 Veeraswamy J. as he then was, while considering the claim of the landlord under Section 10(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act (XVIII of I960) observed as follows:

By the language employed in Section 10(3)(a)(iii) it is clear that if a landlord is carrying on a business in a non-residential premises of his own that will be a bar to his obtaining an order of eviction in respect of another premises. It does not appear to be the intention of the provision that the test is every business is considered separately. It is not as if that if a landlord is having several businesses and is occupying a non-residential premises of his own in which he is carrying on one of the businesses, he is permitted by the provision to get possession of other non-residential premises of his own for carrying on every one of the other businesses.

Relying on the above decision it is contended on behalf of the tenant that since the landlady is already in possession of Door No. 188, East Masi Street, Madurai in which she is carrying on business, she is not entitled at evict the tenant.

16. On behalf of the landlady reliance is placed upon a Division Bench decision of the Andhra Pradesh High Court in the case reported in B. Bataiah v. Chandoor Lachiah : AIR1965AP435 where it was held that a father cummanager of a joint Hindu, family, who is in occupation of a non-residential building, is entitled to ask for eviction of a tenant under Section 10(3)(a)(iii) from another non-residential building belonging to the family in the same city on the ground that his undivided major son requires it for carrying on his business. In the course of the judgment the Division Bench observed as follows:

We are, therefore, of the clear opinion that what the said provision means is this: When a landlord, who is in occupation of a non-residential building in a city, town or village requires another non-residential building of his own in the same city, town or village, as the case may be, from his tenant, for the purposes of the business which he is carrying on - which can mean shifting or expansion of the business which he is carrying on or for commencing a new business - can successfully claim eviction of his tenant if he is able to satisfy the Rent Controller that the non residential building which he is occupying is not sufficient or suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence, or that the shifting of his business has, in the circumstances of the case, become inevitable. It would be open to him to prove that the non-residential building which he is occupying is not exclusively his own or that he is not entitled to its exclusive possession.

Following that above Division Bench decision, a single Judge of the Andhra Pradesh High Court in the case reported in Kolliseiti Venkaiah v. Tadikamalla Saiyanarayana (1965) 2 A.W.R. 95 : A.I.R. 1966 A.P. 435 observed as follows:

In the decision in Balaiahs case : AIR1971Mad163 the learned Judges have carefully considered the entire matter from all aspects and came to the conclusion that having regard to the scheme of the Act, it would not have been the intention of the Legislature that a landlord under no circumstances can require a non-residential building of his own if he is already occupying a non-residential building of his own, in the same city, town or village. With great respect to the learned Judges, in my opinion, that is the correct view to be taken in interpreting the provision contained in Section 10(3)(a) (iii) of the Act.

This view of the Andhra Pradesh High Court that a landlord who is in possession of a non-residential building of his own can ask for eviction of the tenant on the ground that he requires the premises for the expansion of his existing business or starting a new business by him or the members of his family is not approved by our High Court In the case reported in Easwaran Chettiai v. K. Subbarayan : AIR1971Mad163 a Division Bench of this Court dissented from the view expressed by the Andhra Pradesh High Court and observed as follows:

In case a landlord requites a non-residential building within the meaning of Section 10(3)(a)(iii) of (he Act, which is in the occupation of his tenant, then he or his son should not be in occupation of non-residential building of his own, for purposes of a business which he or his son is carrying on. The meaning of this section is clear and there is no grammatical impropriety if such meaning is given effect to.

If a person, therefore, is occupying a non-residential premises of his own and is carrying on a business in it, then he has no right to disturb a tenant of his in another building and ask for his eviction. The niceties and artiticialities of a problem where the non-residential building owned by the landlord is sufficient for the business which he is carrying on does not enter the field of discussion, because they ate alien...

The law as it stands says that the landlord is interdicted from seeking a non residential building of his in the occupation of his tenant if and when he is already in such a non-residential building of his own in which he is carrying on a business.

In the course of the Judgment the Division Bench also observed as follows:

The office of the Judge is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injudicious.

The Court, therefore, is not expected to play the role of a legislator and interpret law in such a way so as to expand its scope of activity on purely equitable considerations for it would be transgressing limits of its function, which is only to declare law and not to make it. Closely allied with this fundamental concept of interpretation is the doctrine explained in the maxim a verbia legis non-recedendum esf (from the words of the law there should not be any departure). It is well accepted as a golden rule of interpretation that the ordinary meaning of the words used by the statute and the grammatical sense thereof sbould be adhered to. It is therefore necessary to look into the words employed by the Legislature in Section 10(3)(a)(iii) to find out what its grammatical and plain meaning is. The view expressed by the Andhra Pradesh High Court that when the Legislature intended that a landlord who is doing business in a portion of the premises belonging to him is entitled to evict the tenant in the other portion of the premises under Section 10(3)(c) on the ground the portion occupied by him is not sufficient for his business, it would not have been the intention of the legislature to negative the right of the landlord carrying on business in a premises of his own, to evict a tenant from another non-residential premises of his own on the ground that the premises in which he carried on business is not sufficient for his business or that he required the premises for the non-residential use of any other member of his family, had not been followed by the Division Bench of this Court.

Hence the law as far as we are concerned is that a landlord who is carrying on business in a non-residential building of his own cannot ask for eviction of the tenant in another non-residential building either on the ground that the building in which he is carrying on his business is not sufficient or on the ground that he wants to start a new business by himself or by the members of his family. Mr. Paul Pandian, learned Counsel appearing for the respondent (landlady) contends that the view expressed by the Division Bench will not be applicable to the facts of the present case for the following reasons:

1. In this case the landlady carried on the business in palmyrah jaggery in partnership with her husband and her sons m door No. 188 East Masi Street, Madurai which is a presidential building belonging to her;

2. The landlady is carrying on another business in chillies in door No. 138 Chitrakkara Street Maduraj, from which premises she is ordered to be evicted by an order of the Court

In this connection the learned Counsel points out that the two businesses earned on by the landlady fn both the above said premises are distinct and separate as borne out from the following facts:

(a) As per Exhibit A-2 licence is given for carrying on the business in dried chillies in Door No. 138 Chitrakkaia Street, Madurai and as per Exhibit A-5 licence is given for business in palmyrah jaggery in door No. 188, East Masi Street, Madurai.

(b) There are also separate commercial tax assessments in respect of Pandia Nadar firm carrying on Chillies business in Door No. 138, Chitrak-kara Street, Madurai as evidenced by Exhibits A-8 and A-13.

(c) The fact that a separate business in chillies has been carried on in Door No. 138, Ghitrakkara Street, Madurai is evidenced by the delivery notes Exhibits A-9 and A-10.

(d) The fact that separate chillies business has been carried on by the landlady in Door No. 138, Chitrakkara Street, Madurai is also borne out by the certificate of verification issued by the Inspector of Labour as per Exhibit A-11 which shows that the premises has been used for business in dried chillies.

The contention of the learned Counsel for the respondent is that these circumstances clearly show that the landlady is carrying on a separate business in Door No. 138, Chitrakkara Street, Madurai unconnected with the business carried on in Door No. 188, East Masi Street and the same was not taken note of by the appellate authority and hence the appellate authority erred in observing that same business has been carried on in Door No. 188, East Masi Street and in Door No. 138, Ghitrakkara Street. In view of the evidence in the case and the several circumstances detailed above the finding of the appellate authority that the business carried on in Daor No. 138, Chitrakkara Street is not different from the business carried on in Door No. 188, East Masi Street, cannot be said to be based on a correct appreciation of the evidence. The case of the landlady is that since the business being carried on by her in Door No. 138, Ghitrakkara Street, is a separate business, the fact that she is ordered to be eviced from the premises where she is carrying on business is sufficient ground for claiming another non-residential premises to locate the business carried on in Door NO. 138, Gtiitrakkira Street, Madurai. It is also the case of the landlady that in any event even if the business in the same goods in carried on in both the places, the business carried on in Door No. 18 , East Masi Street, Madurai should be viewed as a separate business since it is a separate entity altogether. In short the argument on behalf of the landlady is that the business carried in Door No. 138, Chitrakkara Street, Madurai will amount to a business itself and as such the landlady is entitled to ask for eviction of the tenant in the petition-mentioned premises to house the business carried on in Door No. 138, Ghitrakkara Street, Madurai. Even if the business carried on in Door No. 138, Ghitrakkara Street Madurai, can be termed as a branch of her business which is carried on in Door No. 188, East Masi Street, Madurai, the business carried on in the branch will have to be viewed as a separate business. The phrase 'Business' occurring in Section 10 (3)(a)(iii) will refer to only a physical entity and the same will have to be borne in mind in interpreting the phrase 'a business.' On a proper construction of 'a business which the landlord or any member of his family carrying on 'occurring in Section 10(3)(a) (iii) will include a business carried on in a branch also. Hence a landlord occupying two premises for non-residential purposes if he is evicted from one of such premises he is entitled to ask for possession of another non-residential building of his own. This proposition came up for consideration before a Division Bench of the Court in the case reported in V.R. Jayaman v. N.S. Ramalingam (1937) T.L.N.J. 393 and the Division Bench observed as follows:

But the Court is of the opinion that the fact that the petitioner is carrying on business in jewellery in a building of his own does not really disentitle him to relief under Section 10 (3)(a)(iii) of the Act, though in this case the petitioner has to fail on other grounds. The appellate authority and the revisional authority have not correctly understood the purport and scope of the decision in Mis. Glamour Saree Muslum v. T.N.H.W. Co. op. Society : (1969)2MLJ493 The observation of the learned Judge - 'what the sub-section provides is that the carrying on of the business by the landlord in his own non-residential building is the test, and that does not, in the view of the Court, mean each business or a particular business. The phrase 'a business' in the provision has reference to any business and not each of the businesses 'has to be understood in that context. The learned Judge held that if the landlord was carrying on co-optex saree business in the Pantheon Road building, which is its own, it will not be entitled to an order of eviction. That is because on the plain reading of Section 10(3)(a)(iii) a landlord who is carrying on a particular business in a building of his own would not be entitled to relief under that provision in respect of the same business. But, if the landlord is carrying on a different business in another building which is not his own, there is nothing in the section which debars him to have recourse to the provisions in that section in respect of that business, even though he might be carrying on another business in a building of his own. In other words, if a landlord is carrying on two different businesses, one say in jewellery, in a building of his own. and the other, say in timber, in a rented building, he would be entitled to relief under Section 10 (3)(a)(iii) for shifting the timber business to a third building which is his own but in the occupation of a tenant. In such a case the timber business of the landlord in the rented building satisfied the clause 'a business which he in carrying on occurring in the above section. This is in accord with the view taken by a Division Bench of this Court in Ramalingo. Mooppanar v. Narayana Iyer C.M.P. No. 4164 of 1950 (1951) 1 M.L.J. 7 In the present case, the landlord is carrying on business in jewellery in a building of his own. If the business, Ranga Medicals which is being carried on in 61, Long Bazaar, a rented building, is a business of the landlord himself the Court sees no ground at all to say that the landlord would not be entitled to apply for eviction of a tenant from the premises in question under Section 10(3)(a)(iii).

The same question also came up for decision before a single Judge of this Court in J. JV. Gulamali and others v. Howrah Casting Company, Madras and Anr. (1978) 91 L.W. 136 where a landlord carrying on a business in a non-residential building of his own, applied for the eviction of a tenant from a non-residenlial building belonging to him for the purpose of locating another business of the landlord carried on in a rented premises. The tenant who resisted the claim for eviction relied on the decision of a single Judge of this Court reported in Glamour Saree Museum v. Tamil Nadu Handloom Weavers Cooperative Society (1970) 83 L.W. 13 and the decision of a Division Bench of this Court reported in Eswaran Chettiar v. Subbaraya : AIR1971Mad163 where it had been laid down that a landlord conducting business in a non-residential premises of his own is not entitled to come forward with an application for evicting a tenant on the ground that the premises of the landlord is not sufficient for the business or that the landlord required the premises for starting a different business for himself or any other member of his family. The learned single Judge observed that a distinction will have to be made in the case of distinct business, carried on by the landlord in a rented premises in addition to the business carried on by the landlord in his own premises. Following the reasoning of the Division Bench in V.R. Jay arm v. N.S. Ramalingam (1973) T.N.N.J. 393 t he learned single Judge summarised the legal position as follows:

The observation of a Division Bench of this Court in Eswaran Chettiar v. Subbarayan : AIR1971Mad163 that the letter 'a' in Section 10(3)(a)(iii) would mean 'any' and that would be its plain meaning, has also to be understood on the facts of that case. If the landlord is carrying on the particular business in his own building, he cannot be heard to say that he required the premises in the occupation of the tenant for shifting that business. The mere fact that in the building, belonging to the landord, not only the particular business but another business was also being carried on, would not mean that the landlord would be entitled to relief under Section 10(3)(a)(iii) of the Act. But, on a plain meaning of the said provision, if the landlord is carrying on business in a building not his own, he would certainly be entitled to relief under the said provision, albeit, he is carrying on another business in a different building which is his own. The only limitation is, the claim of the landlord should be bona fide, and under the said provision, the landlord can obtain possession of only one building.

The legal position will boil down to this: Does the landlord seek eviction of the tanant from a non-residential building belonging to him with reference to a business, which he is carrying on in a rented premises? If that be so, Section 10 (3)(a)(iii) would apply, albeit he is carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act, viz., this is not a case of unreasonable eviction. It will be rather very reasonable for a landlord to have his business which is of a different nature in the premises, owned by him, rather than suffer the tenancy for all time to come, merely because he happens to be a partner in some other business which is being carried on in portion of that a non-residential premises.

17. In my view the learned single Judge had rightly interpreted Section 10(3)(a)(iii) in the light of the earlier decision of this Court in arriving at the conclusion that a landlord carrying on a business in a rented premises can file an application for evicting a tenant of a non-residential building for locating the business which the landlord is carrying on in the rented premises even though the landlord is carrying on another business of his own in a premises of his own. In the present case as already observed there is abundant evidence to show that the business carried on in Door No. 138, Chitrakkara Street, Madurai is altogether a different business from the one carried on Door No. 188, West Masi Street, the landlady is entitled to evict the tenant in occupation of Door No. 138, Chitrakkara Street, Madurai, for her business which she is carrying on in Door No. 138, Chitrakkara Street, Madurai, a premises she had taken on rent and from which she is ordered to be evicted. In any event even if it is found that the business carried on in Door No. 138, Chitrakkara Street is a branch of the business carried on in Door No. 188, West Masi Street even such a branch will come with the ambit of 'a business' which the landlady is carrying on and in view of the fact the landlady in the present case is ordered to be evicted from the premises bearing Door No. 138, Chitrakkara Street, in which she is carrying on the branch business, she in turn is entitled to evict the tenant in the premises bearing Door No. 138, Chitrakkara Street for the purpose of locating the branch of the business carried on by the landlady in Door. 138, Chitrakkara Street.

18. In the result the order of eviction passed by the appellate authority will have to be sustained though for a different reason. Hence the civil revision petition is dismissed. There will be no order as to costs. In view of the fact that the business carried on by the tenant in the petition mentioned premises is an established one, one year time is granted to the tenant for delivery of possession to the landlady.


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