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A. Gulam Mohamed Vs. A.K.M. Pichai Maracair - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1981)1MLJ99
AppellantA. Gulam Mohamed
RespondentA.K.M. Pichai Maracair
Cases ReferredAbdul Rahimand Brothers v. Seloan Brothers
Excerpt:
.....the petitioner. 4. the learned counsel for the petitioner would contend that the respondent had ceased to occupy the building for a continuous period of four months without reasonable cause and the mere circumstance that certain articles like the furniture, barrels, almirahs, etc. in this connection, the learned counsel for the petitioner also places strong reliance upon the decision in amar singh v. in the present case, the premises is not situate in a hill-station and, therefore, the petitioner can invoke the aforesaid provision, if the other conditions of the section are satisfied. 1 is to the effect that it is not as if he has abandoned the premises in his occupation as a place of business, but that the business is being carried on, though not continuously, through his agents as..........premises bearing door no. 27,madurai road, tirunelveli junction. the respondent is a tenant in occupation of this premises on a monthly rent of rs. 90 payable according to the english calendar on or before the 5th of every succeeding month. the petitioner stated that the respondent is not conducting any business in the premises in question and that from february, 1975 onwards the respondent had ceased to occupy the building for a continuous period of more than four months without any reasonable cause and has thus rendered himself liable to be evicted. in addition, the petitioner also stated that the respondent had committed wilful default in the payment of rent and that the rents had remained unpaid from march, 1975 onwards. a notice was sent by the petitioner to the.....
Judgment:
ORDER

V. Ratnam, J.

1. The landlord, who had lost his application for an order of eviction against the respondent herein under Section 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960 as amended by Act XXIII of 1973(hereinafter referred to as the Act) before the Authorities below is the petitioner in this civil revision petition. The petitioner is the owner of non-residential premises bearing door No. 27,Madurai Road, Tirunelveli Junction. The respondent is a tenant in occupation of this premises on a monthly rent of Rs. 90 payable according to the English Calendar on or before the 5th of every succeeding month. The petitioner stated that the respondent is not conducting any business in the premises in question and that from February, 1975 onwards the respondent had ceased to occupy the building for a continuous period of more than four months without any reasonable cause and has thus rendered himself liable to be evicted. In addition, the petitioner also stated that the respondent had committed wilful default in the payment of rent and that the rents had remained unpaid from March, 1975 onwards. A notice was sent by the petitioner to the respondent on 2nd July, 1975, terminating the tenancy and demanding vacant possession of :he premises to which the respondent sent a reply stating that he continues to be in occupation of the premises and that there is no arrears of rent. Since the respondent did not vacate the premises, the petitioner filed H.R.C.O.P. NO. 140 of 1975 before the Rent Controller (Principal District Munsif), Tirunelveli, under Section 10(2)(vi) of the Act praying for an order of eviction against the respondent.

2. The respondent herein resisted that application contending that the respondent has been running the business as usual in the premises and that even at the time when the premises was taken by the respondent, the petitioner was made aware that the business in the premises will be run by the agents and relations of the respondent and that the business is now being conducted by the agents of the respondent. The further case of the respondent was that owing to some misunderstandings between him and his former agent, the business is run by another manager newly appointed and the petitioner had filed the application for eviction at the instigation of the former agent of the respondent. The respondent reiterated his occupation of the premises as a tenant and further stated that his business stocks, equipments, furniture, etc. are all kept in the premises and the manager is running the business. The rents, according to the respondent, were regularly remitted and received by the petitioner and the delay in the payment was owing to the tour of the respondent and, therefore, there is no question of any wilful default as claimed by the petitioner. On these grounds, the respondent prayed for the dismissal of the application.

3. The learned Rent Controller (Principal District Munsif), Tirunelveli, who enquired into this application, held that the petitioner has not succeeded in establishing that the respondent has ceased to occupy the building in question and, therefore, the petitioner is not entitled to an order for eviction against the respondent under Section 10(2)(vi) of the Act. The other ground upon which the eviction was sought, namely, wilful default in the payment of rents was not persisted in because the respondent had paid all the rents in an application under Section 11 of the Act filed by the petitioner herein which was also duly endorsed by the counsel for the petitioner. On the conclusion so arrived at, the Rent Controller dismissed the application. Aggrieved by that, the petitioner preferred an appeal in C.M.A. No. 74 of 1977 to the Appellate Authority (Principal Subordinate Judge), Tirunelveli. The Appellate Authority also concurred with the conclusion of the Rent Controller and held that the petitioner has not established that the respondent has unreasonably ceased to occupy the building for a continuous period of four months and upheld the order of the Rent Controller and dismissed the appeal. It is the correctness of this order that is challenged in this civil revision petition.

4. The learned Counsel for the petitioner would contend that the respondent had ceased to occupy the building for a continuous period of four months without reasonable cause and the mere circumstance that certain articles like the furniture, barrels, almirahs, etc., have been left behind by the respondent in the premises cannot amount to 'occupation of the premises' by the respondent and, therefore, the building not having been admittedly occupied by the respondent herein for more than four months without any reasonable cause, the petitioner is entitled to an order for eviction. In this connection, the learned Counsel for the petitioner also places strong reliance upon the decision in Amar Singh v. Ram Rakha . On the other hand, the learned Counsel for the respondent contends that occupation does not mean physical occupation as such, but that keeping the furniture and other articles in the premises for the carrying on of the business would be sufficient occupation within the meaning of Section 10(2)(vi) of the Act. Reliance in this connection is placed on the decision in Addul Rahim & Bros. v. Selvan Bros (1956) 1 M.L.J. 237 : : (1956)1MLJ237 . Before proceeding to consider these contentions, it is necessary to notice the relevant statutory provision. Section 10(2)(vi) of the Act provides that a landlord can apply to the Controller for an order of eviction against the tenant in a case where the building is situate in a place other than a hill-station, if the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause. In the present case, the premises is not situate in a hill-station and, therefore, the petitioner can invoke the aforesaid provision, if the other conditions of the section are satisfied. The two requirements to be fulfilled before an order for eviction can be obtained by a landlord under Section 10(2)(vi) of the Act are: (1) the landlord must establish that the tenant has ceased to occupy the building for a continuous period of four months; and (2) that there was no reasonable cause for the same. The first question that arises for consideration is, whether the respondent has 'ceased to occupy the building'. The word 'occupy' means 'to take possession of', or 'to hold and have in possession'. It is not in dispute in the present case that the respondent is keeping the articles required in connection with his business inside the premises in question and even the evidence of the petitioner examined as P.W. 1 supports this. Whether this would amount to occupation of the building or not has to be considered in the light of the surrounding circumstances and the intention of the parties. The evidence of the respondent examined as R. W. 1 is to the effect that it is not as if he has abandoned the premises in his occupation as a place of business, but that the business is being carried on, though not continuously, through his agents as well. It is thus obvious that the intention of the respondent is not to give up or to end or terminate his possession of the premises, but that on the other hand, he has exhibited an intention to continue to keep the premises in his possession as before by keeping the articles and also by placing the business under the control of somebody else. From the above, it is clear that though for the time being the respondent is at Madras living with his family members, yet, he has not in any manner either abandoned or even manifested any idea of abandonment of the premises in his occupation as tenant. Therefore, the circumstance that the respondent still retains possession of the premises under his occupation by keeping his articles therein and locking it and also allowing his agents and others to carry on the business in the premises in question would indicate that the respondent has not ceased to occupy the premises. The evidence of P. W. 1 who has been living at Kovilpatti is not very helpful to establish the cessation of the occupation of the premises by the respondent as he could not have known anything about the same. The evidence of the other witness examined on behalf of the petitioner p. W. 2 was not accepted by the Rent Controller on the ground that he was a witness who was called upon to give evidence on the assurance by the petitioner that he will be compensated for the wages and food for the day. The only other circumstance pressed into service by the learned Counsel for the petitioner is that Exhibit A-1 the Meter Card in respect of the premises indicates that the door of the premises had been locked for the period between 18th March, 1975 and August, 1975. Though at first sight this may indicate that the premises in question had been kept closed between 18th March, 1975 and August, 1975, yet, it is not improbable that the premises had remained locked only on those days on which the meter-reader visited the premises and, therefore, it is not possible from Exhibit A-1 to infer that the premises had been kept locked by the respondent for a continuous period of four months. The learned Counsel for the petitioner would very strongly rely upon the decision in Amar Singh v. Ram Rakha . and contend that 'occupation' contemplated by the section would be actual user of the building and the mere presence of furniture did not amount to occupation. On a perusal of the decision, it is found that Section 13(2)(v) of the East Punjab Urban Rent Restriction Act is couched in more or less the same terms as the Act in force in Tamil Nadu and the expression used therein is also 'has ceased to occupy the building for a continuous period of four months without reasonable cause.' The learned Judge felt bound to apply the decision in Smt. Shakuntala Bawa v. Ram Parshad (1963) 65 Punj LR 103. where Falshaw, CJ., had an occasion to deal with this question and observed thus:

Where for all practical purposes the tenant had ceased to reside in the house, in dispute which was situate in Hissar and had gone to reside at Delhi, only visiting Hissar very occasionally for short periods and even then not using the house in the sense of sleeping there, the mere presence of the furniture and willingness to pay rent does not constitute occupation within the meaning of Section 13(2)(v) of the East Punjab Urban Rent Restriction Act. The word 'occupation' means occupation in the sense of actual user.

An earlier decision is Baij Nath v. Badhawa (1956) 58 Punj LR 236. Sing, where the following observations of Ramaswami, J., in Firm Ram Kishun Shah Etwari Sahu v. Jamuna Prasad A.I.R. 1951 pat. 469. had been referred to:,

'As observed in Rex v. St. Pancras (1877) 2 QBD 581 at 588:

Occupation includes possession as its primary element but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of vacant house is in possession and may mainta in trespass against anyone who invades it; but as long as he leaves it vacant he is not in occupation; nor is he an occupier.

Again in Kimti Lal v. Nanak Chand (1967) 69 Punj L.R 799. the word 'occupation' in Section 13(2)(v) of the East Punjab Rent Restriction Act has been held to be actual user of the building and the mere presence of furniture did not amount to occupation. It will thus be seen that consistently the Courts in Punjab have taken the view that occupation in Section 13(2)(0) of the East Punjab Urban Rent Restriction Act means the actual user of the building. However, it is seen that the basis for this conclusion proceeds on the observations referred to above in Rex v. St. Pancras (1877) 2 QBD 581 at 588.. It has been pointed out there that if the owner of a vacant house leaves it vacant, he is not in occupation. But in the present case, on the evidence it has already been found that the premises has not been left vacant by the respondent, but the articles of business have been kept and the business, according to the evidence of R.W. 1 is also being carried on by his agents. These considerations would suffice to include the present case within the scope of the decision in Amar Singh v. Ram Rakha A.I.R. 1972 Punj & Har. 383 : . On the other hand, the position in so far as this Court is concerned has been well-settled since 1956 and it had remained unshaken as well. Rajagopala Ayyangar, J., in Abdul Rahimand Brothers v. Seloan Brothers (1956) 1 M.L.J. 237. held that there is no requirement in the Act that the tenant should actually carry out business in order to prevent his eviction, but that it would suffice if he occupies it and keeping the furniture in the premises is sufficient occupation within the meaning of Section 7(2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act XXV of 1949 comparable to Section 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973. The learned Counsel for the petitioner, however, would attempt to distinguish that decision by contending that in that case the premises was taken on lease for the purpose of carrying on business in wine and consequent to the introduction of prohibition, such a business became illegal with the result that the tenant was unable to carry on his business but kept the furniture and paid the rents. It must be pointed out that it is not with reference to the nature of the business that the words 'ceased to occupy the building' has to be interpreted but on other relevant considerations adverted to above. The attempted distinction by the learned Counsel for the petitioner cannot, therefore, be accepted. The evidence in the instant case clearly and categorically discloses that the respondent is in effective occupation of the premises in question by not only keeping the articles required in connection with his business there, but also carrying on, though not regularly, his business through his agents and that would suffice to hold that the tenant is still in occupation of the building. Under these circumstances, the orders of the Courts below are perfectly correct and do not merit any interference in revision. The result is, the civil revision petition fails and is dismissed. No costs.


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