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P. Annakili Ammal and anr. Vs. H.C. HussaIn and Hassan and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ340
AppellantP. Annakili Ammal and anr.
RespondentH.C. HussaIn and Hassan and anr.
Cases ReferredMattulal v. Radhe Lal
Excerpt:
- .....the act).2. the first respondent admitted his tenancy under the first petitioner in respect of one shop in premises no. 389, t. h. road, madras-21, on a monthly rental of rs. 75, the tenancy being according to english calendar month. the unauthorised sub-lease of the tea shop to the second respondent was denied and first respondent stated that the second respondent was only his servant looking after the shop and he was being paid a salary. the requirement of the petitioners by way of additional accommodation was disputed by the first respondent on the ground that such requirement is neither true nor bona fide and that, in any event, the hardship that may be caused to the first respondent will outweigh the advantage to the petitioners as the tea shop was the only source of livelihood for.....
Judgment:
ORDER

V. Ratnam, J.

1. The petitioners are the owners of the premises bearing door No. 389 (old No. 524), T.H. Road, Washermanpet, Madras, 21. In 1965, this building was purchased from one Nagappan by Subbiah Nadar and Thangaraj Nadar, brothers of Paul Pandia Nadar, the husband of the first petitioner and the father of the second petitioner herein. Even prior to the purchase of the property, the first respondent was in occupation as a tenant of a portion of the building and was running a tea shop paying a rent of Rs. 65 per month. Subsequent to the purchase the first respondent attorned the tenancy to the purchase and was paying a rent of Rs. 75 per month. The petitioners stated that the first respondent had unauthorisedly sublet the premises where he was running a tea shop to the second respondent without the consent in writing of the petitioners. Further, the petitioners stated that they were running a flour mill known as Raja Flour mills in another portion of the building next adjacent at the back of the building in which the first respondent was running a tea shop, that the flour mill so run by the petitioners did not have direct access from the main road and also that the petitioners required more accommodation for their mill as they proposed] to expand and enlarge their business. Alleging that the existing accommodation is insufficient and that the portion in the occupation of the first respondent is required by the petitioners for their business needs as and by way of additional accommodation, the petitioners filed H.R.C. No. 157 of 1980, against the respondents herein under Section 10(2) (ii) (a) and Section 10(3) (c) 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).

2. The first respondent admitted his tenancy under the first petitioner in respect of one Shop in premises No. 389, T. H. Road, Madras-21, on a monthly rental of Rs. 75, the tenancy being according to English calendar month. The unauthorised sub-lease of the tea shop to the second respondent was denied and first respondent stated that the second respondent was only his servant looking after the shop and he was being paid a salary. The requirement of the petitioners by way of additional accommodation was disputed by the first respondent on the ground that such requirement is neither true nor bona fide and that, in any event, the hardship that may be caused to the first respondent will outweigh the advantage to the petitioners as the tea shop was the only source of livelihood for the first respondent. The running of the flour mill by the petitioners was also disputed by the first respondent. On the aforesaid grounds, the first respondent prayed for dismissal of the application for eviction. The second respondent adopted the counter of the first respondent.

3. Before the Rent Controller (10th Judge, Court of Small Causes, Madras, on behalf of the petitioners, the second petitioner was examined as P.W. 1 and another tenant was examined as P.W. 2 and Exhibits P-1 to P. 4 were marked, while, on behalf of the respondents, first respondent alone was examined as R.W. 1 and Exhibit R-1 was relied upon. On a consideration of oral as well as the documentary evidence, the Rent Controller found that it had not been established that there was a sub-lease of the tea shop by the first respondent in favour of the second respondent and that the requirement of the petitioners of the premises in the occupation of the first respondent as and by way of additional accommodation for purposes of the business of the petitioners, was not bona fide. On these conclusions, the application for eviction was dismissed. Aggrieved by this, the petitioners preferred H.R.A. No. 1423 of 1980 to the Appellate Authority (6th Judge, Court of Small Causes), Madras. On a reconsideration of the evidence, the Appellate Authority also concurred with the conclusions of the Rent Controller and dismissed the appeal. It is the correctness of this that is challenged by the petitioners in this civil revision petition.

4. The first contention of the learned Counsel for the petitioners is that the first respondent had unauthorisedly sublet the premises in his occupation where he had been running a tea shop to the second respondent without the consent in writing of the petitioners and this would amount to subletting of the premises justifying the passing of an order of eviction against the first respondent under Section 10(2) (ii) (a) of the Act. On the other hand, the learned Counsel for the first respondent submitted that there is absolutely no material whatever to establish the subletting attributed to the first respondent and therefore, the petitioners are not entitled to an order for eviction on this ground. It is the evidence of P.W. 1 that the first respondent has sub-let the tea shop to the second respondent and that he became aware of it when he was taking tea in that shop when the second respondent was running it and by making enquiries of him. He would also further state that when the first respondent was running the tea shop, there were no pictures of deities but that when the second respondent started running the shop, the pictures of Hindu deities were placed there. P.W. 2 is one of! the tenants and his evidence is to. the effect that when the first respondent was running the tea shop, there was no picture, but when the second respondent started running the tea shop, pictures of Hindu deities were found there. P.W. 2 would also depose to his early morning habit of going to the tea shop to take a cup of tea and he stated that previously one Muslim gentleman was running the tea shop and subsequently it was run by the second respondent and when he made enquiries of the second respondent, he was told that the tea shop had been taken by him on sub-lease. The evidence of P.W. 1 and P.W. 2 does not mention anything about the rent stated to have been collected by the first respondent for the alleged sub-lease in favour of the second respondent. It is significant to note that P.W. 2 was unable to speak anything about the relationship between the first and the second respondents. Exhibit P-4 was produced by P.W. 2 to show that he was consuming tea on credit in the shop run by the second respondent, but Exhibit P-4 does not contain the signature of the second respondent. P.W. 2 candidly admitted that as he was a tenant under the petitioners, he came to Court to depose in favour of the petitioners. Therefore, on the basis of the evidence of P.W. 1 and P.W. 2, and Exhibit P-4 it cannot be stated that the sub-lease by the first respondent in favour of the second respondent has been established. On the contrary, the evidence of R.W. 1 is to the effect that the second respondent is only his servant and not a sub-tenant. The further evidence of R.W. 1 is to the effect that the second respondent was working under him only for two months and thereafter, he left his services. Exhibit R-1 would show that the licence for the tea shop continued to stand in the name of only the first respondent. It is no doubt true that the first respondent could have produced other documents in the shape of registers maintained in accordance with the Tamil Nadu Shops and Establishments Act, etc., to show that the second respondent was employed by him only as a servant; but their non-production is immaterial, as the evidence on behalf of the petitioners in this case does not establish the sub-lease of the premises by the first respondent in favour of the second respondent on payment of a rent as a result of which the possession of the premises had been completely and totally parted with by the first respondent in favour of the second respondent. Therefore, subletting as a ground for securing an order for eviction against the respondents has not been established. The authorities below had rejected the oral testimony of P.W. 1 and P.W. 2 and the documents relied on by the petitioners and concluded that the case of the petitioners regarding subletting is not acceptable. That conclusion of the authorities below is correct and cannot be in any manner assailed,

5. The next contention of the learned Counsel for the petitioner is that the petitioners require the premises in the occupation of the first respondent as and by way of additional accommodation for purposes of their own flour mill business. In the application for eviction, the petitioners have stated that the flour mill does not have access directly from the main road. It is seen from the evidence that the petitioners are running a flour mil behind the tea shop let out to the first respondent. The petitioners claimed that they require the premises in the occupation of the first respondent to accommodate their expanding and enlarging business as well. In the evidence, it is seen that the petitioners have also stated that if the first respondent vacates the premises in his occupation, that would enable them to have direct access to their mill from the main road. Admittedly, the flour mill premises is now having the access from a lane by name Inspector Subbarayalu Mudali Street. Under Section 10(3) (c) of the Act, the requirement as and by way of additional accommodation for non-residential purposes as in this case should be for purposes of a business. The expression .... accommodation.... for purposes of a business' occurring in Section 10(3) (c) of the Act would indicate the need for occupation by the landlord of the premises in the occupation of the tenant for purposes of a business which the landlord is carrying on. Plainly, this contemplates only cases where the requirement of the landlord is a business requirement and not a requirement for purposes of securing better access as in this case. The petitioners cannot, therefore, be heard to ask for additional accommodation under Section 10(3) (c) of the Act in order to enable them to have better access to their flour mill from the main road by ordering the eviction of the first respondent herein.

6. Regarding the bona fides of the requirement of additional accommodation for flour mill purposes, there was absolutely no material placed by the petitioners before the authorities below to show that there was any expansion or increase in the business which necessitated further or additional accommodation for purposes of the increasing or enlarging business. Reliance was placed by the learned Counsel for the petitioners upon the observations of the Supreme Court in Mattulal v. Radhe Lal : [1975]1SCR127 , to contend that the authorities below misdirected themselves in stating that no preparation for expansion had been made by the petitioners and therefore, the requirement of the petitioners cannot be bona fide. The decision relied on by the learned Counsel for the petitioners related to a case where the requirement of the landlord was stated to be for the purpose of starting his own business as a dealer in iron and steel materials within Section 12(1) (f) of the Madhya Pradesh Accommodation Control Act, 1961, and it was not a case analogous to the requirement under Section 10(3) (c) of the Act. It was in that context, the Supreme Court pointed out that it was difficult to imagine the making if preparations for starting a new business unless there was a reasonable prospect of the landlord being able to obtain possession of the premises in the near future and that it will be too much to expect that a landlord should make preparations for starting a new business even before securing possession of the premises and indeed, from a commercial and practical point of view, it would be foolish on the part of the landlord to make arranagements for investment of capital, obtaining of permits and receipt of stocks, etc., when he could not know whether he would at all be able to get possession. Those observations were made by the Supreme Court in the context of considering an application for eviction for the purpose of starting a new business and that too under Section 12(1) (f) of the Madhya Pradesh Accommodation Control Act, 1961, which is not in pan materia with Section 10(3) (c) of the Act. Under those circumstances, the petitioners cannot be heard to contend that no increase or expansion in business need be established by them to show that they require the premises by way of additional accommodation. As pointed out earlier, the petitioners have not proved that their business has been on the increase. Apart from this, no details have been given by P.W. 1, with reference to the volume of business and how the existing accommodation with reference to the increasing business is inadequate. A mere assertion on the part of the landlords that they entertain a desire to expand the business and therefore the premises in the occupation of the first respondent is required by way of additional accommodation is not sufficient at all. Further, in Exhibit P-1, dated 6th November, 1979, the petitioners have not mentioned anything at all about their need of the premises in the occupation of the first respondent for purposes of their expanding business by way of additional accommodation. Indeed, Exhibit P-1 proceeds only on the ground that the first respondent had unauthorisedly sublet the premises to the second respondent. The application for eviction had been filed on 17th December, 1979, and Exhibit P-1 shows that at least till 6th November, 1979, the petitioners have not thought of their requirement under Section 10(3) (c) of the Act, as a ground for demanding possession of the premises in the occupation of the first respondent. This would also clearly establish that the requirement of the petitioners is not bona fide.

7. The application for eviction filed by the petitioners is silent regarding the relative hardship; but, in the counter the first respondent in paragraph 9 had clearly stated that the hardship that would be caused to the first respondent by an order of eviction being passed against him will outweigh the advantage to the petitioners, as the tea shop is the only source of livelihood for the first respondent. Though the proviso directing the rejection of an application under Section 10(3) (e) of the Act is in the nature of an instruction addressed to the Rent Controller to do so if the Rent Controller comes to the conclusion that the hardship that may be caused to the tenant by an order of eviction will outweigh the advantage to the landlord, yet, in order to enable the Rent Controller to give effect to this proviso, it would be necessary for the parties to plead that and place necessary materials in support thereof, as otherwise, the question of relative hardship cannot be satisfactorily decided. In this case, though in the application for eviction the petitioners have not whispered anything about the relative hardship, yet, the first respondent in his counter has specifically adverted to this aspect and has also spoken in the course of his evidence about the difficulty in securing similar accommodation in the locality in the event of his : being obliged to vacate the premises now in his occupation. From this evidence, it is obvious that if the first respondent who is eking out his livelihood by running the tea shop in the premises in his occupation is evicted, he will be left without any ostensible means of livelihood and it will not be possible for him to secure similar accommodation in the vicinity enjoying the same convenience and also on payment of the rent that is now paid to the petitioners. Therefore, even assuming that the petitioners have established a case for additional accommodation under Section 10(3) (c) of the Act, on a consideration of the question of relative hard-ship, it has to be held that the hardship likely to be suffered by the first respondent will out- weigh the advantage that may enure to the landlords by passing the order of eviction. On this ground alone, the petitioners have to be refused the relief of eviction of the first respondent from the premises in his occupation. On a careful consideration of all the aspects, it has to be held that the conclusion of the authorities below that the petitioners have not made out a case for the eviction of the first respondent from the premises in his occupation is perfectly correct and is based on evidence and does not merit any interference in the exercise of the revisional jurisdiction under Section 25 of the Act, as pointed out by the Supreme Court in Messrs. Sri Raja Lakshmi Dyeing Works and others v. Rangaswami Chettiar : AIR1980SC1253 . Consequently, the civil revision petition fails and is dismissed; but there will be no order as to costs.


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