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Bank of Baroda, Represented by Its Chairman Vs. Mahendra Dadha and Two ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Family
CourtChennai High Court
Decided On
Reported in(1982)2MLJ85
AppellantBank of Baroda, Represented by Its Chairman
RespondentMahendra Dadha and Two ors.
Cases ReferredSri Raja Lakshmi Dyeing Works v. Rangaswami
Excerpt:
- - ] 4. similar to the contentions raised before the rent controller as well as the appellate authority, here also on behalf of the revision petitioner, mr. 250, above cited, to which view i am fully agreeable, the submission of the tenant based on the ground that the will has not been probated has to fail. pathak [1977]3scr412 ,has clearly laid down that a co-owner or some of the co-owners are entitled to maintain a petition for eviction against a tenant. subramanyan would submit that it is open to the revision petitioner to say that the respondents could as well have filed the eviction as co-owners, but as long as they have not come with a case that they are co-owners, but only as persons deriving title by virtue of the will, they are not entitled to plead co-ownership and that they.....s. ratnavel pandian, j.1. the respondent-tenant in h.r.c. no. 705 of 1980, on the file of the court of the rent controller, madras (xii judge, court of small causes, madras), has preferred this revision, questioning the legality and validity of the judgment made by the appellate authority (ii judge, court of small causes, madras in h.r.a. no. 71 of 1981) on his file, setting aside the order of the rent controller, dismissing the petition preferred by the landlords (respondents herein) and allowing the appeal and ordering eviction under section 10(3)(a)(iii) of the tamil nadu buildings (lease and rent control) act (xviii of 1960), hereinafter referred to as the act.2. the brief facts of the case, which gave rise to these proceedings, are as follows: respondents 1 to 3 herein, who are the.....
Judgment:

S. Ratnavel Pandian, J.

1. The respondent-tenant in H.R.C. No. 705 of 1980, on the file of the Court of the Rent Controller, Madras (XII Judge, Court of Small Causes, Madras), has preferred this revision, questioning the legality and validity of the judgment made by the Appellate Authority (II Judge, Court of Small Causes, Madras in H.R.A. No. 71 of 1981) on his file, setting aside the order of the Rent Controller, dismissing the petition preferred by the landlords (respondents herein) and allowing the appeal and ordering eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960), hereinafter referred to as the Act.

2. The brief facts of the case, which gave rise to these proceedings, are as follows: Respondents 1 to 3 herein, who are the sons of late Sri Milapchand Dadha, residing at No. 93, Lloyds Road, Madras-14 filed a petition against the revision petitioner, namely, the Bank of Baroda represented by its Chairman, under Section 10(3)(a)(iii) of the Act, seeking an order of eviction of the tenant from the building and premises bearing door No. 133, Mint Street, Madras-1 on the ground set out in the petition. According to the respondents, their father died on 12th October, 1976, and they have become the owners of the building which was let out to the revision petitioner in early 1967 for a non-residential purpose, namely, for running its branch office. Initially, the Bank occupied only the ground-floor, but subsequently, it became a tenant in respect of the entire building with effect from 1st September, 1970. The monthly rent for the entire building was Rs. 3,500. The respondents are businessmen engaged in various business activities under various names which they have set out in the petition and they are carrying on their business only in various rented buildings and they do not have any other non-residential building and premises for accommodating their administrative office of their group companies within the City of Madras. Hence they bona fide require the petition-mentioned building and premises both for accommodating their administrative office and for carrying on their business activities. The revision petitioner-Bank when requested to vacate the building, initially promised to vacate hut subsequently refused to do so, Therefore, the respondents caused a lawyer's notice Exhibit P-1, dated 4th August, 1979 to be sent to the revision petitioner to vacate the building. The revision petitioner sent a reply, Exhibit P-2, dated 21st August, 1979, containing untenable allegations. One of the allegations in Exhibit P-2, that one of the respondents demanded enhanced rent of Rs. 10,000 from 3,500 is absolutely incorrect, and untrue.

3. The revision petitioner has filed a counter-statement, raising the following contentions. It was once suggested by the father of the respondents that the property in question belonged to the joint family of which the father of the respondents was the karta. Further, it was stated that Srimathi Balu Bai, Srimathi Kaval Kavar, Sri M. Mahendrachand Dadha, Sri M. Mahipalchand Dadha, Sri M. Maher-chand Dadha, Srimathi Kanchan Kavajr Kankaria and Srimathi Chandan Kavar Baid were surviving legal heirs of the said Sri L. Milapchandji Dadha who died on 12th October, 1976, that the said Milapchand Dadha had executed a will, dated 1st January, 1974, the copy of which is annexed to Exhibit R-2, and that under the said will Milapchand Dadha had appointed his younger brother ,Sri Section Mohanchand Dadha and his son M. Mahendrachand Dadha as executors, who were taking necessary steps to obtain the probate. In spite of several correspondences between the parties it is not known whether the will had been probated or not. As the property in question is situate within the local limits of the Ordinary Original Civil Jurisdiction of the High Court, Madras and the will has been executed within the above-mentioned limits, the executors under the will cannot establish their right in any Court, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed. Therefore, the respondents-landlords cannot seek to establish any title in relation to the property in question without a probate. On this ground alone the petition is liable to be dismissed. Secondly, one portion of the building alone is used for non-residential. purpose and the other portions are used for the residence of the Branch Manager of the Bank to the knowledge of the respondents. The respondents and their family members own several buildings in the city and their associate companies are being carried on in their own premises and therefore, it is incorrect to state that the respondents are not occupying any building of their own for carrying on their business. The several businesses - Nos. 1 to 9 set out in paragraph 4 of the petition cannot be said to be the businesses carried on by the respondents in the absence of any particulars supporting their contention. There is absolutely no bona fide in the claim of the respondents. The first respondent, namely, Sri Mahendra Dadha demanded from the revision-petitioner a sum of Rs. 10,000 per mensem towards the monthly rent. As the revision petitioner has expressed its inability to accept the demand for increased rent, the respondents gave Exhibit P-1, containing false allegations, to which the revision petitioner has replied. The eviction petition is filed only on being provoked by the refusal of the revision petitioner to pay enhanced rent and with an ulterior motive of evicting the revision petitioner. There is no bona fide in the claim.

[Discussion relating to evidence, etc., and findings of the Rent Controller who. dismissed the petition, and the Appellate Authority who allowed the appeal and ordered eviction.--Omitted-Ed.]

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4. Similar to the contentions raised before the Rent Controller as well as the Appellate Authority, here also on behalf of the revision petitioner, Mr. V.S. Subramanyan mainly raised the two contentions, namely, that the petition is not maintainable and that the respondents do not bona fide require the building and premises.

5. Heading No. 1 : Whether the petition filed by the landlords-respondents is maintainable. - It is not in controversy that the building in question originally belonged to the father of the respondents, namely, Sri Milapchand Dadha who died on 12th October, 1976 and that the entire building has been let out in favour of the Bank-tenant on monthly rent of Rs. 3,500. The respondents have filed the petition in their capacity as legal heirs and sons of Milapchand Dadha.

[Discussion relating to documentary evidence--omitted-Ed.]

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6. What Mr. V.S. Subramanyam would attempt to show is that inasmuch as the legal heirs of Milapchand Dadha inclusive of the respondents have referred in their letter, Exhibit R-l, dated 7th January, 1977 to a will, dated 1st January, 1974 under which the testator (Sri Milapchand Dadha) had appointed his younger brother, Section Mohanchand Dadha and one of the respondents, viz., Mahendrachand Dadha as executors and that the executors are stated, to have been taking steps to obtain probate of the will, the respondents cannot seek to establish any title in 'relation to the property in question without a probate from the Court of competent jurisdiction and hence the petition filed by the respondents is not maintainable....

[Discussion relating correspondence--Omitted-Ed.]

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7. On the basis of the above documents, it is submitted by Mr. V. Section Subramanyam, that the present case of the respondents that they have become the owners of the building and premises in question as the legal heirs of Sri Milapchand Dadha, is quite at variance with their claim in the correspondence that they are entitled to the property by virtue of the will and hence the petition for eviction filed by the respondents claiming the right to the property as the legal heirs of Milapchand Dadha without probating the will and putting forth a pleading contrary to the stand taken in the correspondence, is not maintainable.

[Discussion relating to evidence--Omitted-Ed.

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8. Coming to the legal question, Mr. V.S. Subramanyam cited a decision in Hem Nolini v. Isolyne Sarojbashini : AIR1962SC1471 . In that case the Supreme Court has ruled that:

Section 213 of the Indian Succession Act created a bar to the establishment of any right under a will by an executor or a legatee unless a probate or letters of administration of the will have been obtained whether that right is claimed by the persons as a plaintiff or defendant, that the words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee and that the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed and therefore, it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself, or somebody else might find it necessary in order to establish his right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.

9. On a careful examination of the facts of the case, and the nature of the relief asked for. I feel that the legal contention of the learned Counsel for the revision petitioner based on t Section 213 of the Indian Succession Act, does not merit acceptance. As rightly pointed out by Mr. Somayajulu, the respondents have filed this petition for eviction only in their capacity as legal heirs of Milapchand Dadha, having become the owners of the building on the death of their father. Nowhere in the petition the respondents are laying a claim to the demised building and property on the strength of the will executed by their father. The existence of a will has been referred to only in the correspondence between the parties, i.e., Exhibits R-1 to R-16, the earliest of which is Exhibit R-1. The will is not marked in this case, but a copy of the said will is annexed with Exhibit R-2. As we zip not dealing with any case of partition or determining title or right of any parties inter se with reference to the properties mentioned in the will, it is not necessary to launch a detailed discussion with reference to the terms of the will. It is true, in Clause 5 of the will it is stated:

the land and buildings belonging to me in my individual capacity shall go to my three sons, Mahendrachand Dadha, Mahipalchand Dadha, Maherchand Dadha in equal shares.

There is no schedule to the will. The property in question is not specifically mentioned in the will.

10. What we are concerned with in the present proceedings is, whether there was any relationship at landlord and tenant between the parties and whether the respondents can be termed as 'landlords' within the meaning of, Tamil Nadu Act XVIII of 1960. Section 2(6) of the Act defines the word 'landlord' saying that 'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. The tenant is defined in Section 2(8) saying that the tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant. Admittedly, in the present case, the revision petitioner was paying the rent for the building to the respondents who were receiving the rent for the said building and who are also entitled to receive the rent. Therefore, the revision-petitioner is not justified in contending that the petition for eviction is not maintainable, because the will executed by Milapchand Dadha in favour of the three respondents is not probated. As rightly submitted by the learned Counsel for the respondents, the respondents are not establishing their right, or title to the. property through these rent control proceedings either as executors or legatees and therefore, Section 213 of the Indian Succession Act cannot come into play and when once the parties have gone to trial with full knowledge of the issues involved and no prejudice is shown to have been caused to the revision-petitioner, the contention of the revision-petitioner does not merit consideration. It is pertinent to note that the revision-petitioner has not taken any specific plea that the respondents are not the landlords or that they are not entitled to receive the rent. On the other hand, the tenant has accepted the respondents as persons entitled to receive the rent in respect of the property concerned and, in fact, has paid the rent. All the legal heirs of Milapchand Dadha have asked the tenant to pay the rent to Mohanchand Dadha, one of the executors named in the will and the Bank has paid the rent on the basis of the consent letter signed by all the heirs of Milapchand Dadha. Exhibit R.-3 is a letter from the tenant to Mohanchand Dadha, intimating that the rent was paid on the basis of the consent letter of all the legal heirs of Milapchand Dadha. Therefore, the principle laid down in the decision in Hem Nolinis case : AIR1962SC1471 , cited on behalf of the revision petitioner cannot be of any help to the revision petitioner to defeat the claim of the respondents in these proceedings as the respondents are not establishing their right under the will either as executors or legatees.

11. It is pertinent to note that in a recent decision in Mazzban B. Irani and Ors. v. S.R. Mazda, Executor of the Estate of R.F. Mazda (1982) 95 L.W. 250, rendered by a single Judge of this Court in rent control proceedings, a similar contention on the basis of Section 213 of the Indian Succession Act, that no right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, was negatived and answered as follows:

Of course, the executor cannot establish any right to the property without taking out probate, but the existence of the will cannot be ignored for all purposes. In other words, it is not proper to treat a will of which probate has not been granted as non-existent, or as the property passing by intestacy. A reading of Section 213 of the Indian Succession Act will show that an executor or a legatee cannot establish his claim before obtaining probate or letters of administration, but this section is no bar to his bringing a suit or initiating proceedings before obtaining probate. It is also important to note that the genuineness and the validity of the will are not questioned and therefore, a Rent Control petition for eviction without filing a probate of the will is not barred by Section 213 of the Indian Succession Act.

Admittedly, in the present case also the genuineness or validity of the will is not in question. But, the tenant has raised only a technical objection that the will has not been probated. I have already dealt with the contention in extenso in the above, paragraphs. As the facts of the case on hand attract the principle laid down in Irani's case (1982) 95 L.W. 250, above cited, to which view I am fully agreeable, the submission of the tenant based on the ground that the will has not been probated has to fail.

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(Discussion relating to Exhibits P-3, P-4, P-7 & P-13 omitted.)

12. Therefore, the finding of the Appellate Authority that the respondents are the exclusive owners of the petition-building by virtue of the partial partition, dated 25th March, 1976, to which Milapchand Dadha was himself a party cannot be assailed. Therefore, either as coparceners of the joint family or as full owners on the basis of the partial partition or as legal heirs of Milapchand Dadha, the respondents have become co-owners and they are competent persons to bring this petition for eviction.

13. It will be pertinent to note that the Supreme Court in its decision in, Sri Ram Pastricha v. Jagannath : [1977]1SCR395 , and in Kanth Goel v. B.P. Pathak : [1977]3SCR412 , has clearly laid down that a co-owner or some of the co-owners are entitled to maintain a petition for eviction against a tenant. See also the decisions in Ehasan Bivi and Ors. v. Nagalakshmi Ammal (1980) 93 L.W. 820 : (1981) T.L.N.J. 17 and Vasudevan v. Ramachandran : (1980)1MLJ534 .

14. One other argument of Mr. V.S. Subramanyan is that, as the respondents have claimed right to the property in their correspondences with the tenant-Bank only on the basis of a will executed by their father, the present pleading that they have become owners of the property as the legal hears of Milapchand Dadha is a different one, and the evidence now let in by P.W. 1 as regards partial partition cannot be looked into and that the respondents are estopped from asking the relief sought for on a different plea not initially pleaded. In support bf this contention : he has cited certain decisions, in Siddik Mahomed Shah v. Mt. Saran and Ors. , the Privy Council has held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. In Trojan & Co. v. Nagappa : [1953]4SCR789 , it has been observed that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. For the proposition that no amount of evidence can be looked into when a claim has never been made in the defence, reliance was placed on the decisions in Bhagat Singh v. Jaswant Singh (1962) 1 S.C.J. 162 : A.I.R. 1966 S.C. 1861, and in Ram Surat Devi v. Satraji Kuer A.I.R. 1975 Pat. 168, also.

15. The learned Counsel for the revision petitioner drew the attention of this Court to a recent decision in Amalgamated v. Texas Bank (1982) 1 L L Rep 27 , in which the following observations are made:

If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it, on the faith of which each of them, to the knowledge of the other acts and conducts their mutual affairs they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need Jo inquire whether their particular interpretation is correct or not, or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.

Further, Mr. V.S. Subramanyan would submit that it is open to the revision petitioner to say that the respondents could as well have filed the eviction as co-owners, but as long as they have not come with a case that they are co-owners, but only as persons deriving title by virtue of the will, they are not entitled to plead co-ownership and that they have to stand or fall on their own pleadings.

16. Countering the above arguments, Mr. Somayajulu would draw the attention of this Court to the decision of the Supreme Court in Nagubai v. B. Shama Rao : [1956]1SCR451 , wherein their Lordships after referring to Siddik Mohamed Shah's case , have explained the true scope of the rule laid down in that case in the following terms:

The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But, that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed therein, and adduce evidence, relating thereto.

He also cited the decision in Union of India v. Motilal Padampat Sugar Mills Co. (P.), Ltd. : [1969]3SCR75 , in which the decision in Nagubai Ammal's case : [1956]1SCR451 at 598, was referred to and applied. See also the decision in Bhim Singh v. Kan Singh : [1980]2SCR628 , Reliance was also placed on the decision in the Model Town Welfare Council v. Bhupinder (F.B.), wherein the Full Bench while answering a similar technical objection relating to pleadings, has held as follows:.the strict rules relating to pleadings contained in the Code of Civil Procedure have no application to proceedings before the Rent Control authorities.

In the present case, first of all, the respondents have not pleaded that they are entitled to the property by virtue of the will, but have based their claim only as legal heirs of Milapchand Dadha and secondly, as pointed out by the Full Bench of the Punjab and Haryana High Court in Model Town Welfare Council v. Bhupinder , there cannot he any force in the technical objection in cases falling under the provisions of the Rent Control Act. The English decision reported in Amalgamated v. Texas Bank (1982) L L Re. 27, and relied upon by the revision petitioner relates to a proceeding in a civil suit based on a contract and hence the dictum laid down therein cannot be applied to a proceeding such as the one on hand. Therefore, the contention of Mr. V.S. Subramanyam that the petition is not maintainable as the pleading in the petition is not the one made by the respondents in their correspondences and any amount of evidence given by P.W. 1 cannot be looked into, cannot he countenanced.

(Discussion of facts, omitted--Ed.)

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17. Heading No. 2 : Whether the requirement of the building by the respondents is bona fide;

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Discussion relating to evidence omitted--Ed.)

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18. Section 10(3)(a)(iii) of the Act deals with the conditions for obtaining possession of a non-residential building. The conditions are : (1) The building should be nonresidential in character; (2) the landlord should he carrying on business on the date of application for eviction; (3) The landlord should not be occupying any other non-residential building belonging to him in respect of the business; and (4) the landlord's claim is bona fide, for his business needs and is not founded on any indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than what the premises already fetched or with a view to harass the tenant in possession See J. Abdul Kader v. Hussein Ali & Sons : (1962)2MLJ446 . Though the tenant in its counter has pleaded that only one portion of the demised building is used for the n on-residential purpose of running the banking business and the other portion is used for a residential purpose, i.e., for the residence of the Branch Manager of the Bank, the present case of the respondents that it was let out only for a non-residential purpose is not seriously challenged. No argument on behalf of the tenant has been advanced before this Court that the building was let out only for non-residential purposes. Therefore, it can be held that the entire building was let out for non-residential purposes and that the tenancy was non-residential in character.

(Discussion of facts, omitted--Ed.)

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19. On a careful examination of the docu ments and the evidence of P.W. 1 and R.W. 1, I have no hesitation in agreeing with the finding of the Appellate Authority and holding that the landlords-respondents are carrying on the various businesses on the date of the application for eviction.

(Discussion relating to evidence omitted--Ed.)

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20. The tenant has not shown to the satisfaction of this Court, either through oral or documentary evidence, that the respondents have other non-residential buildings for carrying on their business and that their requirement of the petition-mentioned building is not bona fide. For all the reasons stated above, I hold that the conclusion of the Appellate Authority that 'the appellants were also under a pressing necessity to find alternate accommodation for housing the business of Dadha Textile Corporation' and that 'when it is found as a question of fact the requirement for own occupation is a pressing necessity and clearly bona fide, the mere fact that before filing the eviction petition, the appellants have demanded enhanced rent for the petition building, cannot in any way militate against the bona fide nature of their requirement' cannot be interferred with.

21. In the present revision the tenant has filed a petition in C.M.P. No. 589 of 1982 seeking permission of this Court to adduce further evidence on its behalf by marking two issues of 'Dina Thanthi' and 'The Hindu', dated 28th October, 1981, for the purpose of showing that the Dadha Textile Corporation will start functioning at No. 6, Wallajah Road, Mount Road, Madras-2 and that consequently there will be no present necessity for the premises in question under the occupation of the revision petitioner, It is not the case of the tenant that No. 6, Wallajah Road, is a non-residential building belonging to the respondents. Mr. Somayajulu would submit that, first of all, there is no provision under the Act for receipt of any additional evidence in the revisional stage and secondly, the publications now sought to be received by way of additional evidence would per se show that the respondents are in a present necessity to have a non-residential premises for carrying on their business and because of the pendency of these proceedings they have been necessitated to start functioning of their business in some other rented building, that they also require a non-residential building for their various other businesses and also to have their administrative office and that because of these publications the bona fide requirement of the respondents to have their own non-residential building for the purpose of carrying on their business cannot be rejected or said to be unjustifiable. He would further add that consequent upon the order made in C.R.P. Nos. 1444 of 1979, 1405 of 1979, etc., dated 29th April, 1980, the respondents could not abruptly stop their business of Dadha Textile Corporation and would think of starting the business only after the disposal of this revision. I see some force in the argument of Mr. Somayajulu. However, in view of the legal position that this Court will not be justified in receiving additional evidence while sitting in its revisional jurisdiction and as the documents now sought to be filed will not in any way belittle the bona fide requirement of the respondents, C.M.P. No. 589 of 1982 is dismissed. Hence, I hold that the respondents' claim is bona fide and that it is not founded on any oblique motive and answer the second question in favour of the respondents and against the revision petitioner.

22. Mr. Somayajulu, in addition to his submissions made on behalf of the respondents, would bring to the notice of this Court certain rulings dealing with the scope of the powers of this Court while exercising its power in a revision under Section 25 of the Act. The main decision relied upon by the counsel is the one reported in Sri Raja Lakshmi Dyeing Works v. Rangaswami : AIR1980SC1253 . In the present case, it cannot be said that the finding given by the Appellate Authority is perverse. As pointed in the recent decision of the Supreme Court in Sri Raja Lakshmi Dyeing Works v. Rangaswami : AIR1980SC1253 , which directly deals with the power of this Court under Section 25 of the Tamil Nadu Act (XVIII of 1960), the power conferred on this Court Section 25 is a power of superintendence and this Court, in spite of the wide language employed in Section 25 should not interfere with the findings of fact on the ground that this Court does not agree with the finding of the lower authority. As I have already found even on facts that the conclusion arrived at by the Appellate Authority is sustainable both legally and factually, no interference, with the order of the Appellate Authority is called for in this revision.

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I do not see any substance in the last contention of the revision petitioner that the respondents have got alternate accommodation for carrying on their business and hold that the requirement of the petition-premises by the respondents is bona fide. In the result, the Civil Revision Petition is dismissed. C.M.P. No. 589 of 1982 is also dismissed. There will, however, be no order as to costs. As the tenant is running a banking business at the premises in question, now I grant 3 months' time from this date to the revision petitioner for vacating the petition-mentioned building.


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