P. R. Gokulakrishnan, J.
1. This revision petition is filed by the respondents in R. C. O. P. No. 96 of 1978 on the file of the Rent Controller (District Munsif, Madurai taluk) against the order passed in C. M. A. No. 237 of 1978 on the file of the Subordinate Judge of Madurai. The respondent herein, who is the petitioner in the Rent Control Original Petition filed an eviction petition alleging that one S. M. S. Mohideen Batcha came as a tenant in respect of door Nos. 8 and 9, Jarikaikar a Street, Ward No. 12, near police lines, Madurai town, on a monthly rent of Rs. 33, that the said rent was subsequently raised to Rs. 50 per month from January, 1970 onwards, that subsequently S. M. S. Mohideen Batcha agreed to pay rent at the rate of Rs. 60 per month, that there were arrears in the payment of rent by S. M. S. Mohideen Batcha beginning from 1st May, 1974, onwards that Mohideen Batcha died four months prior to the filing of the eviction petition, leaving behind him the petitioners 1 to 3 herein as legal heirs to the estate of the said S. M. S. Mohideen Batcha and that the petitioners 1 to 3 are liable to pay the rent to respondent herein. It has been further alleged that there are arrears to the tune of Rs. 1,980 which cover 33 months and that in spite of notice, the petitioners herein have not paid the same. It is further stated that the petitioners never even replied to the notice Exhibit A-3, seat by the respondent herein. The petitioners herein, in their counter, have inter alia stated that S. M. S. Mohideen Batcha was regular in paying the rent till his lifetime, that no notice of demand was issued by the respondent herein when S.M.S. Mohideen Batcha was alive, that S. M. S. Mohideen Batcha and his younger brother S.M.S. Nawabjan were doing business in the suit premises, that after the death of Mohideen Batcha during 1976, his brother Nawabjan is running the business in his own name by paying rent to the suit property to the respondent herein and that the petitioners herein did not choose to reply to the notice sent to them since they have no interest in the suit property after the demise of Mohideen Batcha. It has been also specifically averred in the counter statement that the petition is barred for non-joinder of proper parties, that this eviction petition has been filed fraudulently against the petitioners herein, even though the respondent herein is receiving rent from the said S.M.S. Nawabjan, who is actually running the business in the suit property. The Courts below, after finding that there are arrears of rent, ordered eviction. Aggrieved by the order of eviction, the petitioners have preferred the above revision petition.
2. Mr. Govindarajan, learned Counsel appearing for the petitioners, has stated that originally Mohideen Batcha and his brother Nawabjan were carrying on the business, that subsequent to the death of Mohideen Batcha, Nawabjan is continuing the business that the petitioners have no connection either to the premises or to the business that is being run there, that the petitioners have absolutely no interest in the business or in the tenancy and that they are not the tenants, as defined under Section 2(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
3. Mr. Arab Shah, learned Counsel appearing for the respondent, submitted that the very fact that the petitioners have not replied to Exhibit A-3 shows that they are running the business and are liable to pay the rents, that the case set up by the petitioners as if they are not the tenants is just to wriggle out of the liability to pay the rents and that, as a matter of fact, they are in possession and are running the business.
4. There is a specific averment in the counter-statement filed by the petitioners herein that the petitioners have no interest in the suit property, after the demise of Mohideen Batcha. No doubt, the respondent herein has let in evidence to show that the petitioners are running the business and they are the tenants under the respondent. Unfortunately, there is no finding by the Courts below as to whether the petitioners are the tenants under the respondent herein. The petition itself is maintainable only if the petitioners are construed to be the tenants under the respondent herein. In this context, the definition of 'tenant' under Section 2(8) may be looked into. Section 2(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads as follows:
'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 who:
(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant, and
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant up to the death of the tenant and continues to carry on such business thereafter, and
(iii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or all rents for shops has been farmed out or leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madurai.
It is clear from the facts of the case that the building in question is a non-residential building, If that be so, to clothe the legal representatives with the right as a statutory tenant, they must be, in the case of a non-residential building, continuously associated with the original statutory tenant for the purpose of carrying on the business of the original tenant upto the death of the tenant and should have continued to carry on such business thereafter. Unless a finding is given one way or the other, in my opinion, the authorities constituted under the Act cannot proceed further to pass orders under any one of the sections mentioned in the Act. This finding is lacking in the orders passed by the two Courts below. Hence, the orders passed by the Courts below are set aside and the case is remanded to the file of the Rent Controller for the purpose of the same afresh bearing in mind the observations I have made above. There will be no order as to casts.