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Children's Choice represented by Its Partner Mr. Lakshmichand Shamjee Vs. G.K. Adiseshiah and Anr. (23.12.1981 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ411
AppellantChildren's Choice represented by Its Partner Mr. Lakshmichand Shamjee
RespondentG.K. Adiseshiah and Anr.
Cases ReferredR.M. MeHta v. Hindustan Photo Films Manufacturing Co.
Excerpt:
- - before the expiry of the period of five years of lease, the tenant had exercised his option in writing to the vendor of the landlords on 20th august, 1974. the landlords purchased the premises only in february, 1975. exhibit r-4 is the registered notice sent by the tenant to the original landlord sankaran on 20th august, 1974, clearly expressing that the tenant wanted to continue the lease and renew the same for a further period of four years in accordance with clause 14 of the contract of lease. exhibit p-1. the present landlords have clearly admitted that there was an agreement for renewal of the lease for a further period of four years between the original owner and the tenant, but that the tenant had not expressed his desire to renew the lease for a further period. provided..........written to the previous landlord railing upon him to renew the lease deed before the expiry of the lease period, and the landlord had acknowledged the same by his acknowledgment, exhibit r-5, and there was no response. he seems to have waited till the expiry of the period of lease, namely 31st january, 1975, and thereafter sold the property to the present landlords. now, the tenant has done his part of the contract and has exercised his option in time. if the absentee landlord, namely the previous owner residing at bangalore, had sold away the property ignoring his own covenant, it will not destroy the right of renewal of lease created under a contract of lease. it is unreasonable to expect that an absentee landlord who wants to sell away the property would execute a renewal lease deed.....
Judgment:
ORDER

T.N. Singaravelu, J.

1. The tenant is the revision petitioner. The respondents-landlords filed the petition for eviction in respect of two nonresidential shops under Section 10(3)(c) of Act XVIII of 1960, for additional accommodation. The petitioner-tenant contended that the petition under Section 10(3)(c) is not maintainable since the premises constitute a separate building and therefore, the application should have been filed under Section 10(3)(a)(iii) of the Act. The tenant further contended that as per the terms of the contract of lease he is entitled to a renewal of the lease for four years and that the application for eviction is premature. Lastly, it was contended that in any event the requirement was not bona fide. The Rent Controller rejected the contentions of the tenant and ordered eviction. On appeal, the Appellate Authority confirmed the order of eviction and the tenant has come on revision.

2. Three points were raised before this Court by the tenant and I shall consider them one by one. The foremost question is whether or not the petition for eviction, is maintainable under Section 10(3)(c) of the Act. Learned Counsel for the tenant pointed out that there are six shops in that building in a row, each of them bearing separate door numbers. The landlords are running their business in textiles in shops 1 and 2. The premises in dispute are door Nos. (shops) 5 and 6. The two shops in between, namely shops 3 and 4, belong to third parties. Originally, the entire building belonged to one person who sold the shops 1 and 2 to the landlords herein, and three years later, sold shops Nos. 5 and 6 to the same landlords. Admittedly, shops 3 and 4 were sold to third parties. The premises in dispute are not contiguous to door numbers 1 and 2 and therefore, it is argued that for all purposes, they constitute a separate building and that the landlords cannot ask for additional accommodation treating them as a portion of the same building. It is common ground that the assessment and the entries in the property -tax register of the Corporation for the premises in question are separate, though they are comprised in the same building. It is also common ground that the entire building does not belong to the respondents-landlords, since shops 3 and 4 were admittedly sold to third parties who are in occupation of the same. Both the Courts below found that since the shops in question are also situated in the same building, the landlords are entitled to file a petition under Section 10(3)(c) for additional accommodation. For this proposition, reliance was placed by the landlords on the decision reported in Veerappa Nctidu v. Gopalari (1961) 1 M.L.J. 223. Therefore, the mere fact that this shops are separately numbered by the Corporation for purposes of assessment is not a bar for the maintainability of the application of the landlords under Section 10(3)(c). It cannot be said that the shops 5 and 6, viz., the premises in question constitute a separate building disentitling the landlord to apply under Section 10(3)(c). I agree with the findings of the lower Courts on the question of 'maintainability.

3. T will now take up the other point, namely, that the tenant has exercised his option for renewal of lease as per the terms of the lease deed and therefore, the present petition for eviction is premature. It is common ground that the tenant entered into possession by virtue of a written lease deed executed in favour of the landlords' vendor on 26th January, 1970, for a period of five years ending with 31st January, 1975, with an option to renew the lease for a further period of four years. Before the expiry of the period of five years of lease, the tenant had exercised his option in writing to the vendor of the landlords on 20th August, 1974. The landlords purchased the premises only in February, 1975. Exhibit R-4 is the registered notice sent by the tenant to the original landlord Sankaran on 20th August, 1974, clearly expressing that the tenant wanted to continue the lease and renew the same for a further period of four years in accordance with Clause 14 of the contract of lease. The original landlord did not respond to this registered letter, but sold away the property to the landlord's herein sometime in February, 1975. The previous owner had promptly collected the rent upto February. 1975 and then, under Exhibit R-6 dated 19th March, 1975, directed the tenant to attorn the tenancy in favour of the purchasers, vis., the present landlords. Exhibit R-8 is an earlier letter dated 24th February, 1975, by the original landlord to the tenant to the same effect. After purchase, the present landlords sent a notice under Exhibit P-1 on 5th January, 1977, calling upon the tenant to vacate the premises on the 'round of reouirement for own occupation. It is important to note that in this lawyer's notice. Exhibit P-1. the present landlords have clearly admitted that there was an agreement for renewal of the lease for a further period of four years between the original owner and the tenant, but that the tenant had not expressed his desire to renew the lease for a further period. This was promptly repudiated by the tenant in his reply notice, Exhibit P-3, reiterating that he had already expressed his desire in writing to the original owner to renew the lease and that he had exercised his option even on 20th August, 1974. The tenant further stated that, by virtue of the clause for renewal in the contract of lease with the original owner, the lease had been renewed from 1st February, 1975 till 31st January, 1979, for a period of four years and therefore, the landlords cannot ask for eviction during that period. The landlords, however, ignored the same and filed this petition for eviction in July, 1977. These facts are not in dispute and they are gathered from the evidence on record.

4. Learned Counsel for the tenant strenuously contended that in view of the renewal clause in the lease agreement and in view of the fact that the tenant had exercised his option in writing before the period of expiry of the tenancy, the tenancy stands renewed and therefore, the present petition filed within the renewal period of four years is premature. Both the Courts below found that inasmuch as the renewed lease deed had not been executed or registered, the tenant is not entitled to protection. Learned Counsel for the landlords drew my attention to a ruling of this Court in R.M. MeHta v. Hindustan Photo Films Manufacturing Co. : AIR1976Mad194 , for the proposition that the renewal document of lease should not only be executed but also be registered. T have perused that decision and I am of opinion that the facts. of the case are not applicable to the case on hand. That was a case arising under the Transfer of Property Act. where the lessee was sought to be made liable for damages even after the lessee had vacated the premises. The question that arose for consideration in that rase was whether the renewed lease came within the scope of Section 107 of the Transfer of Property Act. and in that context it was considered that such a lease should be made only by a rep-istered instrument so as to make the lessee liable for damages. In the instant case, the tenant had exercised his option in writing and had written to the previous landlord railing upon him to renew the lease deed before the expiry of the lease period, and the landlord had acknowledged the same by his acknowledgment, Exhibit R-5, and there was no response. He seems to have waited till the expiry of the period of lease, namely 31st January, 1975, and thereafter sold the property to the present landlords. Now, the tenant has done his part of the contract and has exercised his option in time. If the absentee landlord, namely the previous owner residing at Bangalore, had sold away the property ignoring his own covenant, it will not destroy the right of renewal of lease created under a contract of lease. It is unreasonable to expect that an absentee landlord who wants to sell away the property would execute a renewal lease deed displeasing the purchasers and also destroying the prospects of sale. Similarly, the present landlords, who had purchased the property with notice of the contract of lease for renewal would not have cared to respond nor execute a renewal of lease agreement, let alone registering the same. Therefore, the fact that there is no written agreement for the renewal of the lease deed nor that there was I no registration of the same will not take away the right of the tenant to continue the lease, as per the original contract of tenancy. The present landlords themselves were fully aware of the contract between the original owner and the tenant for a further renewal of four years from 1st February, 1975, and they have purchased this property with knowledge of the same Therefore, the subsequent purchasers cannot ignore the previous agreement of their vendor and seek to evict the tenant when the latter had exercised his option in writing. Thus, this petition for eviction filed in Tuly. 1977. before the expiry of the period of four years is premature and is liable to be dismissed in limine. Both the Courts below have not seriously considered the claim and the rights of the tenant and. in this view, the orders of eviction are vitiated by material irregularity and impropriety. Consequently, it follows that the petition for eviction itself cannot stand.

5. The last point for consideration is whether the requirement of the landlords for additional accommodation under Section 10(3)(c) of the Act is bona fide. As already stated, the respondents (landlords) are brothers and are carrying on partnership business in textiles in shops 1 and 2 and they require the shops in question, viz., shops 5 and 6 in the occupation of the tenant for additional accommodation. According to the landlords, who are brothers, they want to expand their business and to have separate business for each one of them. The two Courts below found that the requirement is bona fide. The landlords have also produced some documents to show that their business has since expanded--Vide Exhibits P-4 to P-10, assessment orders of the Commercial Tax Department. This Court sitting in revision does not want to interfere with the findings regarding the bona fides, though it is strenuously contended on behalf of the tenant that the present two shops in the occupation of the landlords are quite sufficient and adequate for their business. But then, there is the more important point for consideration before ordering eviction and that is the relative hardship to the parties herein. The two Courts below have not considered this aspect seriously and they have disposed it of without any discussion worth-mentioning. The proviso to Section 10(3)(c) of the Act runs thus:.Provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.' This Court has repeatedly pointed out that even if the bona, fides of the landlords have been proved, the relative hardship of the parties in the event of eviction must also be considered before ordering eviction. Inspite of it, the lower Courts have not seriously adverted to it and have just made a passing reference and disposed it of very lightly.

6. Learned Counsel for the tenant strenuously contended that the tenant has established his business in the premises during these eleven years and that Exhibit R-9, assessment order of the Commercial Tax Department shows that the present turnover of the tenant in respect of his shop dealing in Children's wear is about 4 1/2, lakhs in the year 1977. It is argued that this turnover has since vastly expanded and that he has specialised in selling children's wear, as the name of the shop 'Children's Choice' itself indicates, It is submitted that if the tenant is thrown out of the premises, his business will be ruined and that the disadvantages that will be caused to the tenant in the event of eviction will far outweigh the marginal advantages that may accrue to the landlords by the proposed expansion of their business. Though detailed evidence was not let in on either side with respect to their relative advantages and disadvantages, the facts stated supra speak for themselves and the tenant has established his business in the premises from the year 1970 and the hardship that will be caused to the tenant in the event of eviction will be relatively greater. In this view of the matter also, the landlords have to fail.

7. The result is, the orders of eviction passed by the lower Courts are set aside, the civil revision petition is allowed and the petition for eviction, H.R.C. No. 2105 of 1977, will stand dismissed. No costs.


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