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T.K. Krishna Iyer Vs. Karur Vysia Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1959)2MLJ215
AppellantT.K. Krishna Iyer
RespondentKarur Vysia Bank Ltd.
Cases ReferredSahib v. Rangaswami Pillai
Excerpt:
- .....the terms of the section, where the person seeking eviction is at the time of the application for eviction, carrying on a business in a building. those are' cases in which business is being carried on in a manner which he who runs may see. but the authorities hold that the expression 'carrying on a business' applies also to cases where the activities, which are held to constitute 'carrying on a business' are not so apparent to a passerby. one such case came up for consideration before ramaswami, j., in kesavan nair v. babu naidu (1954) 2 m.l.j. 149.. in that case, the person who was seeking eviction had constructed an automobile factory in thiruvottiyur high road at tondiarpet at a cost of six or seven lakhs of rupees. the machinery had been shifted to the building from kozhikode. there.....
Judgment:

Subrahmanyam, J.

1. This is an application to revise the order passed by the learned District Judge, Coimbatore, on 30th October, 1956, in C.R.P. No. 853 of 1955 on his file. The revision petition was filed before the District Judge under Section 12 of the Madras Buildings (Lease and Rent Control) Act, 1949.

2. The building to which these proceedings relate was purchased by the petitioner on 27th July, 1953. At that time, he was conducting a coffee-hotel under the name and style of 'Ranjitha Vilas ' in a rented building in Coimbatore. He said in his petition filed before the House Rent Controller, Coimbatore City, that he purchased the building ' for accommodating this business (of Ranjitha Vilas) '. Immediately after purchasing the building, he sent a notice to the respondent, who was in occupation of the building as a tenant, calling on him to surrender vacant possession. The respondent by reply declined to do so. The petitioner thereafter entered into a family settlement with his brother and son, under which the business known as 'Ranjitha Vilas ' was made over to them. The petitioner, according to him, ceased, on the making of the family settlement, to have any interest in the business known as 'Ranjitha Vilas'. He then gave a fresh notice calling on the respondent to surrender vacant possession of the building. The respondent declined a second time to surrender possession. The petitioner thereupon instituted in the Court of the House Rent Controller, Coimbatore City, R.C.P. No. 106 of 1954, for eviction of the respondent.

3. The House Rent Controller held that, if the petitioner were interested in the business known as 'Ranjitha Vilas', he would not be entitled to apply for eviction under Section 7(3)(a)(iii) of the Act, and that, on the other hand, if he was not interested in that business, he would not be a person who could be said to be carrying on a business and would, in that event also, not be a person entitled to apply under Section 7(3)(a)(iii) of the Act. That was the only provision of the Act under which eviction was sought. The Controller further held that, because a building which belonged to the petitioner had fallen vacant subsequent to his purchase of this building and because the petitioner leased the other building to some other tenant without attempting to do business in such other building, the petitioner's application could not be said to have been made in good faith. For those reasons, the learned Rent Controller dismissed the petitioner's application for eviction.

4. The petitioner appealed to the Subordinate Judge, Coimbatore. The learned Subordinate Judge differed from the Rent Controller on the question whether the petitioner was entitled to apply for eviction under Section 7(3)(a)(iii) of the Act. The Subordinate Judge held that the petitioner could apply. But he agreed with the Rent Controller that the application had not been made bona fide. On that ground, he dismissed the appeal.

5. The petitioner applied in revision to the District Judge, Coimbatore, under Section 12 of the Act. The District Judge held that he could not interfere with the finding of fact recorded by both the lower Courts on the question of good faith and, in that view, dismissed the petition.

6. Learned Counsel for the respondent contends that the District Judge was right in declining to interfere with the finding of fact recorded by the lower Courts on the question of good faith and that, indeed, on,the principles laid down in Sasivarna Thevar v. Pomu (1957) 1 M.L.J. 158, the District Judge would have exceeded his jurisdiction, if he had interfered with the findings of facts recorded by the Rent Controller and the Appellate Authority on the question of good faith.

7. It is unnecessary, in the view that I take on the maintainability of the petition that I express any opinion on the finding recorded by the Rent Controller and Appellate Authority on the question of good faith. I hold that, on the facts stated in the petition before the Rent Controller, the application was not maintainable.

8. The facts as stated in the petition are these. The petitioner purchased the building in order that he might conduct in that building the business, which he had till then been conducting under the name and style of 'Ranjitha Vilas' in a rented building. After he found that he could not acquire possession of this building for conducting the business known as 'Ranjitha Vilas', he entered into a family settlement with his brother and his (petitioner's) son, under which the business became the exclusive property of the brother and the son.

9. It is unnecessary to read any sinister purpose behind that settlement. We may assume that it was a settlement entered into in good faith for reasons properly pertaining to the family. But it is clear that, by reason of the settlement, the petitioner ceased to have any interest in the business, as effectively as if the business had been sold away in Court auction in execution of a decree which some creditor had obtained against the petitioner. After the petitioner ceased to have any interest in the business, he desired to start a business of his own as a coffee hotel proprietor. He had been a coffee hotel proprietor all his life and had the skill and experience needed for starting and conducting such business. He owned a building which he had purchased about six months earlier with a view to conduct in it the business known as 'Ranjitha Vilas'. Since that business had ceased to be his and since he desired to start a new business of the same kind, he decided that he would start the business in that building which belonged to him. On that decision being made, he asked the respondent to vacate and surrender vacant possession. The respondent declined. The question is whether, on these facts, the petitioner is entitled to maintain an application under Section 7(3)(a)(iii) of the Act.

10. Section 7(3)(a)(iii) entitles the owner of a non-residential building to apply for eviction of the tenant in occupation of the building.

If the owner is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled.

So far as the facts stated above are concerned, the question for decision revolves round the phrase ' in a business which he is carrying on '. Was the petitioner carrying on a business as the proprietor or Manager of a Coffee-hotel on the date on which he presented the application for eviction to the House Rent Controller ?

11. Section 7(3)(a)(iii) of the Act would obviously apply to a case where a person is conducting a business in a building, which is not his and which he is bound to vacate under an order or decree of a Civil Court or other authority. In such a case, if he is the owner of another building, he would be entitled to call on the tenant in occupation of such other building to vacate it in order that he (the landlord) may continue to conduct that business in such other building. The section would also apply to a case where a person who carries on a business in a building finds that building inadequate for the installation of additional equipment and machinery necessary for the business and, for that reason, seeks the eviction of a tenant who is in possession of the landlord's own building elsewhere. Please see Nagamanickam Chettiar v. Nallakanna Servai (1957) 1 M.L.J. 182. Those are cases plainly within the terms of the section, where the person seeking eviction is at the time of the application for eviction, carrying on a business in a building. Those are' cases in which business is being carried on in a manner which he who runs may see. But the authorities hold that the expression 'carrying on a business' applies also to cases where the activities, which are held to constitute 'carrying on a business' are not so apparent to a passerby. One such case came up for consideration before Ramaswami, J., in Kesavan Nair v. Babu Naidu (1954) 2 M.L.J. 149.. In that case, the person who was seeking eviction had constructed an automobile factory in Thiruvottiyur High Road at Tondiarpet at a cost of six or seven lakhs of rupees. The Machinery had been shifted to the building from Kozhikode. There was a small hutment in front of the building, which had to be removed before the Corporation of Madras would issue a licence for running the factory. The owner of the factory applied for eviction of the tenant in occupation of the hutment. The tenant pleaded that the landlord was not carrying on a business. The learned Judge held, in effect, that it was not necessary, in order that the owner of the factory may be said to be carrying on a business, that the factory should have gone into production. In the learned Judge's words

where, in pursuance of a business venture a person has been performing several acts' like erecting the building for the factory, shifting machinery from one place to another and applying for licence to the concerned authority, etc., the person is deemed to be carrying on the business and it cannot be said that he only intends to carry on business.

A case slightly different on the facts but calling for the application of the same principle was considered by Viswanatha Sastri, J., in Venkataswami & Sons v. Virabadraswami (1955) A.W.R. 695. In that case, a person who was doing wholesale business in cloth wished to add to it retail business. He had obtained the necessary licence and quota for carrying on a retail business and all that he had to do was to remove the cloth from his wholesale shop into the retail shop and begin to sell the cloth. The learned Judge held that he had started his business operations and that he could. be said to be carrying on a business within the meaning of the expression in Section 7(3)(a)(iii). That ruling has been followed by Balakrishna Ayyar, J., in Azimudeen-Sahib v. Rangaswami Pillai : (1958)2MLJ389 . That case, if I may say so with respect, marks the limit to which the principle of these decisions may be extended. In the case before Balakrishna Ayyar, J., the petitioner-landlord was the owner of premises which were in the possession of a tenant. The landlord sought to evict the tenant on the ground that he wanted them to carry on a business of his own. He wanted the premises in order that he might trade in mill cloth and stated that he had obtained a licence for the purpose from the appropriate authorities. The learned Judge held that the fact that the landlord had obtained a licence brought him within the ambit of the expression ' a person who was carrying on a business.'

12. In the case before us, there is no allegation, except. that the petitioner had purchased this building in 1957 for the purpose of what he describes as 'accommodating the business' which he was then carrying on under the name of 'Ranjitha Vilas' that he had done any act in the way of carrying on or preparing for carrying on a. business as hotel proprietor on the date on which he filed the application. He said expressly that he had to start a business of his own and that for that purpose he wanted the building. It is true that the avocation of hotel proprietor was with him an old avocation and that nothing was more natural than that he should want to become a hotel proprietor again. But that would not render him, on the date on which he made the application, a person who was carrying on a business as hotel proprietor. He was on that date a person who had done business in the past as a hotel proprietor and who was intending to do business in the future as a hotel proprietor. Such a person is not, in my opinion, a person who is carrying on a business. To hold otherwise would be to delete from Section 7(3)(a)(iii) the words 'which he is carrying on', a function which the Court is powerless to perform. It is true that the petitioner needed the building for the purpose of a business. But it is not correct to say that he needed it for the purpose of a business which he was carrying on. On the allegations made in the petition, the petitioner was not entitled to apply for relief under Section 7(3)(a)(iii) of the Act.

13. This petition is dismissed with costs.


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