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Annamalai and Company, by Its Partner S.S. Sundaram Chettiar Vs. Sital Achi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1975)1MLJ337
AppellantAnnamalai and Company, by Its Partner S.S. Sundaram Chettiar
RespondentSital Achi
Cases ReferredDanmull Sowcar v. Syed All Mohamed
Excerpt:
- .....to provisions of clause (d) apply to the controller for an order directing the tenant to put the landlord in possession of the building:(i) in case it is a residential building, if the landlord requires it for his own occupation and if he is not occupying a residential building of his own in the city, town or village concerned.(ii)....(iii) in case it is any other non-residential building if the landlord is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village concerned of which he is owner to the possession of which he is entitled whether under this act or otherwise:provided further that where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this.....
Judgment:

V. Ramaswami, J.

1. The tenant who was unsuccessful in all the three Courts below is the petitioner in this revision petition. The respondent-landlady filed a petition under Section 10(3)(a)(i) and (iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, for eviction of the petitioner from her premises No. 29 , Vaduga Kaval Kooda Street, Madurai Town, which was purchased by her on 22nd December, 1967 on the ground that the same is required for the purpose of residence and business of her adult married son. The facts as found by the Courts below are these. The respondent-landlady was living in a rented house with her husband. Her son with his wife and children was living in a separate rented house in door No. 3, Mahal First Street, Madurai and was also carrying on money lending business in the said premises. Besides the house in question the respondent also owned another house in Goods Shed Street, Madurai which was also under tenancy to a third party. She filed an application for eviction of the tenant in the premises in Goods Shed Street on the ground that it was required for her own residence and also for the pawn-broker's business of her husband. The petition filed in respect of the Goods Shed Street house Was ordered and the tenant was directed to be evicted in order to provide the premises for the residence and also for purpose of her husband's business. The petition for eviction of the petitioner herein from the premises No. 29, Vaduga Kaval Kooda Street, Madurai Town was filed on 23rd December, 1968 subsequent to the order relating to the house in Goods Shed Street, Madurai Town, but before actual possession was taken by the husband of the respondent. Finding that the requirement of the respondent of the premises bearing No. 29, Vaduga Kaval Kooda Street, Madurai Town, for the purpose of residence and business of her son was bona fide the Rent Controller ordered the eviction of the petitioner herein. An appeal and a revision filed by the tenant against this order of eviction were also unsuccessful and the Courts below found that the requirement of the premises for the purpose of residence and business of the respondent's son was bona fide. It may be mentioned that at the time when the appeal before the learned Subordinate Judge of Madurai, was pending the tenant of the premises in Goods Shed Street, house was evicted and the respondent's husband was put in possession of the premises for carrying on his pawn broker's business. It was argued before the Courts below that since the respondent-landlady has already obtained an order of eviction and also subsequently got delivery of possession of the premises of the Goods Shed Street, Madurai Town, for the purpose of residence and her husband's business this application for eviction of the petitioner from premises No. 29, Vaduga Kaval Street, Madurai Town, on the ground that it is bona fide required for the purpose of residence and business of respondent's son is not maintainable. It was also contended before the Courts below that the money lending business carried on by the respondent's son was a partnership business and not his exclusive business and that therefore the provisions of Section 10(3)(a)(i) and (iii) were not applicable. Both these contentions were negatived by the Courts below.

2. In this revision petition it is not questioned and cannot be questioned that the premises in question is bona fide required for the purpose of residence and business of the respondent's son. But the learned Counsel for the petitioner again raised both the legal contentions which were rejected by the Courts below in this petition. Before we consider these contentions of the petitioner it is necessary for us to set out the relevant provisions of the Act. The relevant portion of Section 7(3) of the Madras Buildings (Lease and Rent Control) Act, 1949 corresponding to Section 10(3) of the Madras Buildings (Lease and Rent Control) Act 3960 reads as follows:

3(a) A landlord may, subject to provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the building:

(i) in case it is a residential building, if the landlord requires it for his own occupation and if he is not occupying a residential building of his own in the city, town or village concerned.

(ii)....

(iii) in case it is any other non-residential building if the landlord is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village concerned of which he is owner to the possession of which he is entitled whether under this Act or otherwise:

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

The relevant portion of Section 10(3) of Madras Buildings (Lease and Rent Control) Act, 1960 before it was amended by Tamil Nadu Act XIII of 1973 read as follows:

(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 building:

(i) in case it is a residential building if the landlord requires it for his own occupation or for the occupation of his son and if he or his son is not occupying a residential building of his own in this city, town or village concerned ;

(ii) in case it is any other non-residential building, if the landlord or his son is not occupying for purposes of a business which he or his son is carrying on, a non-residential building in the City, town or 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 under this clause:

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

By the amended Act XXIII of 1973 for the words 'his son' wherever they occurred In this section words 'any member of his family' were substituted with retrospective effect from the date of Madras Act XVIII of 1960. By the same amending Act the definition of the words ' member of his family' were inserted as Section 2(6-A) which reads as follows:

'member of his family' in relation to a landlord means his spouse, son, daughter, grand-child or dependent parent.

The first question that arises for consideration is as to whether Section 10(3)(i) and (m) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Tamil Nadu Act XXIII of 1973 could be invoked by the respondent in view of her prior application for eviction under the same provisions in respect of her premises in the Goods Shed Street, for the purpose of residence and business of her husband. The learned Counsel for the petitioner contended that both under the main part of Section 10(3)(a)(i) and (m) as well as the second proviso to that section the respondent is not entitled to file this application. According to the learned Counsel when the respondent obtained an order of eviction and got possession of a building, though for the purposes of residence and business of her husband she shall be deemed to be in occupation for purpose of her residence and business of the building which is her own and therefore she would not satisfy the conditions prescribed under Section (10)(3)(i) and (iii). Even if it can be considered that the prior order of eviction was for purpose of her husband's business the proviso bars entertainment of another application by the respondent. On a plain and grammatical reading of the language used in Clause 3 (a) (i) (iii) I am unable to accept this contention. In my opinion the owner of a residential premises could invoke the provisions of Section 10(3)(a)(i) if the building is required for his own occupation or for the occupation of any member of his family. The condition imposed under that section of 'not occupying residential building of his own' is to be understood with reference to the person for whose occupation the building is required. Therefore even if the owner of the house is occupying another residential building of his own he could apply for eviction of a tenant of another building if that building was required for the occupation of any member of his family. In Clause (3) of that sub-section the words used are 'if the landlord or any member of his family is not occupying for purposes of business which he or any member of his family is carrying on a non-residential building, which is the own.' Thus here also in the case of eviction of a tenant from a non-residential building the condition to be satisfied is that the person for whose business the building is required shall not be in occupation of a non-residential building of his own. In other words, the landlord though he may be in occupation of a non-residential building for purpose of his business, could apply for eviction of a tenant in respect of another non- residential building if required for the purpose of a business which any member of his family is carrying on provided the person for whose benefit the non-residential building was required by the landlord is not already in occupation of non-residential building of his own. Any other construction in my opinion would nullify the amendment of the section by introduction of the words ' any member of his family.' The second proviso to this sub-section could apply only to a case where the main part of Sub-clause (i) and (iii) is applicable for if the landlord-petitioner does not satisfy the requirement of Clauses (i) and (iii) on that ground itself the petition would be liable to be dismissed and there can be no occasion for invoking the provisions of the proviso. In my opinion, the proviso is put by way of a abundant caution and would be applicable only to a case where the landlord had obtained possession of a building under that clause and applies for possession of another building to himself. It would not apply to a case where the landlord had obtained possession of a building for his own purpose of residence or business of any member of his family.

3. Let us now consider some of the cases which have arisen under these provisions. The earliest of them is the one reported in Dr. Md. Ibrahim v. Syed Ahmed Khan : AIR1950Mad556 . That was a case arising under Section 7(3)(a) of the Madras Buildings (Lease and Rent Control) Act, 1946, corresponding to Section 7(3)(a) of Madras Buildings (Lease and Rent Control) Act, 1949- In that case a petition was filed by the landlord for eviction of the two tenants who were occupying the first and second floor of a building on the ground that the building was required for his own occupation. That petition was ultimately ordered and a writ petition was filed challenging the order of eviction. It was found that the petitioner's second wife was living in another building which was his own. He required the premises in question for the purpose of providing accommodation to his first wife. It was contended on behalf of the tenant that the landlord could not be said to be not occupying a residential building of his own' in view of the fact that his second wife is residing in his own house. It was held by a Division Bench of this Court that 'a person must be deemed to be occupying a residential building at the time of an application for eviction if any of the members of his family including dependants reside in the building with his permission and on his account, though physically he himself not be residing therein. The test is whether if he desires he cannot at any time go to reside in it.'

4. The Bench considered that the house in which the second wife was residing was certainly the house which he could go and reside in at any time he chooses and therefore he does not satisfy the condition that he was not occupying the residential building for his own in the city. On that ground the order of eviction was set aside. The provision in the 1946 Act, did not contain the words ' any member of his family' found in Section 10(3).

5. In Seshasayana Rao v. Venkatesa Rao : AIR1954Mad531 : the scope of the provisions of Section 7(3)(a)(i) of Madras Buildings (Lease and Rent Control) Act, 1949, was considered. The petition was filed for eviction of the tenant by one of the members of the joint Hindu family on the ground that the premises was required for his own occupation. It was contended on behalf of the tenant that the joint family of which the petitioner was a member was already in occupation of a residential house and that therefore the application was not maintainable. Venkatarama Aiyar, J. held:

though it may be possible to regard a Hindu joint family as a juristic person for some purposes, it cannot in my opinion, be held to be a landlord for purposes of Section 7(3)(a)(i) of the Act. That section enacts that the landlord may apply for possession of a residential building if he requires it for his own occupying provided he is not occupying a residential building of his own in the same place. Now a jurisdic person cannot, in the context, be aptly described as occupying a residential building; it is only in the case of a natural person that the question of residence can arise. A joint family regarded as a juristic entity can, therefore, have, as such, no residence. It is only its members that can reside in a building.

The learned Judge also held that:

the Act is concerned with actual and physical possession and not with notional and constructive possession ; and it will be foreign to the scheme of the Act to hold that occupation by one member should be construed as occupation by another when that other is not in fact in occupation.

In that view the learned Judge held that when a coparcener applies for possession under Section 7(3)(a)(i), he will be entitled to an order, if he established that he requires the house for his own occupation.

6. In Kolandaivelu Chettiar v. Koolayana Chettiar (1961) 1 M.L.J. 184, the Court considered the scope of Section 7(3)(a) of the Madras Buildings (Lease and Rent Control) Act, 1949 corresponding to Section 10(3)(a)(i) of the Madras Buildings (Lease and Rent Control) Act, 1960. This Court held that the expression 'for his own occupation' in Section 7(3) of the Act cannot be restricted only to the occupation of the landlord himself but should be interpreted to include the individual's family and dependants. Thus the landlord would be entitled to apply under the Act for eviction of the tenant on the ground that he requires the building for establishing a separate residence for his son though the son was residing with the landlord as a member of the joint family. A similar view was expressed by Ramaprasada Rao, J., in Saraswathi v. Vadivelu Chettiar : (1967)2MLJ81 , in construing the words 'landlord or his son' and held that those words do not in any way exclude the requirements of dependants or relatives and on a beneficial construction of the word 'landlord' the section would include other dependants and near relatives. In that view the application for possession of the premises on the ground that the same was required for the business carried on by the husband of the landlady was ordered.

7. These decisions clearly go to show that even in a case where a landlady petitioner is in possession of either residential or non-residential building she could apply for possession of another building if she satisfied the Court that that building was required either for the purpose of residence or for purpose of business of any member of her family and such member is not in occupation of any residential or non- residential building of his or her own. These decisions were rendered even before the Section 10(3) was amended by Act XXIII of 1973 as stemming from a beneficial construction to be placed on the section. As legislative recognition of these conclusions expressed by this Court, the Act has also been amended by Tamil Nadu Act XXIII of 1973 by including the words ''any member of his family ' in the place of the word 'his son' under Section 10(3).

8. I am therefore of opinion that the petition by the respondent for eviction under Section 10(3)(a)(i) and (iii) for purpose of residence and business of her son was maintainable.

9. The next contention of the learned Counsel for the petitioner is that the son of the respondent was only a partner in the money lending business and as such it cannot be said that the respondent required the premises for the purpose of the business of her son. In this connection', the learned Counsel for the petitioner relied on a decision of this Court in V. R. Jayaraman v. N. S. Ramalingam C.R.P. No. 2343 of 1971 and a decision of the Supreme Court reported in D. N. Sanghavi v. A. T. Das : [1974]3SCR55 .

10. In V.R. Jayaraman v. N. S. Ramalingam C.R.P. No. 2343 of 1971 the landlord filed an application for eviction under Section 10(3)(a)(iii) on the ground that the premises was required for the purpose of a business carried on by his wife, his brother's wife and his son-in-law in partnership. It was found that he was in possession of a non- residential building in which he was carrying on a jewellery business and the business carried on by his wife in partnership with others was a drug shop. Two contentions were raised before the learned Judges. The first contention was that since he was already in possession of a building in which he was carrying on, business he was not entitled to file that application. This contention was rejected holding that that was not a ground on which the petition could be rejected but all the same the learned Judges considered that the building was required for the purpose of a business which was run in partnership and the need of the partnership cannot be taken to be the need of the individual partner and as such the eviction could not be ordered. Though prima facie this judgment supports-the contention of the learned Counsel for the petitioner I am of the view that the learned Judges were not expressing any definite opinion on the question whether the landlord could ask for possession of a non-residential building for purpose of a business in which either he or any member of his family was only a partner. In fact in the earlier portion of the judgment the learned Judges have specifically stated that the need of any member of his family could form a ground for an application under that section. On the facts, in that case they considered that the need was not that of the petitioner's wife individually but it was of the partnership that was, projected as a ground for eviction and that therefore the petition could not be ordered. In fact the decision of the Supreme Court in D.N. Sanghavi v. A.T. Das : [1974]3SCR55 , relied on by the learned Counsel had ruled that merely on the ground that the premises is required for a partnership of which the landlord or any member of his family was a partner it cannot be rejected but it will have to be considered on the facts and circumstances of each case. In the view of their Lordships of the Supreme Court if a member of the family of the landlord is actively participating or is entitled to manage the business either solely or with other partners or if the members of the family are the sole managing partners the provision for eviction could be invoked by the landlord though the business was a partnership business. The learned Counsel for the petitioner sought to rely on this judgment in support of his argument that Clause (iii) of Sub-section 3 of Section 10 could not be invoked by the landlord in a case where the business for the purpose of carrying on which the premises is required is not of the landlord but either it belongs to any other member of his family or any such member in partnership with others. I am unable to accept this contention of the learned Counsel. In fact the decision of the Supreme Court goes against such a contention. That decision was concerned with the interpretation of Section 2(1)(e) and (f) of the Madhya Pradesh Accommodation Control Act XLI of 1961. Section 12(i)(e) of the Act related to landlord's application for possession of a residential building for occupation as residence for himself or for any member of his family. Clause (f) of that section related to non-residential building and provided that the landlord could seek possession for purpose of continuing or starting his business or that of any member of his major sons or unmarried daughters. After setting out the other relevant provisions in the Madhya Pradesh Accommodation Control Act their Lordships considered that there is a material difference in the provisions of the Act in treatment of a residential and non residential buildings and the provisions of the Act were more rigorous in the case of non-residential buildings. Having regard to the scheme of the Madhya Pradesh Accommodation Control Act their Lordships held that while Section 12(1)(e) enable the landlord to obtain residential accommodation for his or any member of his family, Section 12(1)(f) only enables the landlord to obtain possession only for purposes of 'his business'. The distinction made in the Madhya Pradesh Accommodation Control Act between residential and non-residential building in the matter of requirement of owner's occupation is not kept up in the Tamil Nadu. Buildings (Lease and Rent Control) Act, 1960. The wording in Section 10(3)(a)(i) and (iii) is identical and the conditions precedent for the operation of these clauses are also identical. In my View, therefore this decision of the Supreme Court does not help the contention of the learned Counsel for the petitioner. On the other hand the Division Bench of this Court in Danmull Sowcar v. Syed All Mohamed : AIR1969Mad214 , has held that a landlord-is entitled to ask for possession of a non-residential building for purposes of carrying on business in which he is only a partner. Though that was a case where the landlord-petitioner himself was a partner of a business and he asked for possession of a non-residential building for purposes carrying on his business in partnership the ratio of that judgment will equally apply to a case where the landlord asks for the premises for the purpose. of business of any member of his family. It may also be pointed out that in this case the evidence showed that the son of the respondent was carrying on the money- lending business in a premises where he was also living thereby showing that he was substantially interested in the business and he was managing the same. The respondent had not stated in the . counter or in the evidence that the son of the respondent was either a sleeping partner or he was not in management of the money-lending business. On these facts therefore the petitioner cannot contend that the application is not maintainable.

11. The result is both the submissions of the learned Counsel for the petitioner are untenable and the orders of eviction made by the Courts below are not liable to be interfered with. This petition is accordingly dismissed. Time for giving vacant possession four months. There will be no order as to costs.


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