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Arumugha Nattar Vs. HussaIn Moideen Khan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1964)1MLJ386
AppellantArumugha Nattar
RespondentHussaIn Moideen Khan
Cases ReferredVenkataswami & Sons v. Virabhadraswami
Excerpt:
- .....bona fide. the rent controller accordingly allowed the petition for eviction.3. but on appeal, the learned subordinate judge of cuddalore took a different view. the reasons given by him for not accepting the case of the petitioner are the following. the documentary evidence such as account books varukku book, etc., relied on by the landlord are all faked ones and much reliance cannot be placed on them. the application for eviction was not bona fide, because considering the dimensions of the shop in question, it is highly doubtful whether it will be sufficient to locale a wholesale business in paddy and grains. the landlord has invested only a sum of rs. 5,000 and the turnover of the business is very small. the name board of the business is written in chalk. the landlord has only a.....
Judgment:
ORDER

T. Venkatadri, J.

1. The petitioner in this petition is the landlord who filed an application for eviction of the respondent on the ground that he required the suit shop for the purpose of carrying on a wholesale business in paddy and grains which he had started before the purchase of the premises. The allegations in his petition are following. He is a native of Cuddalore. He has two brothers one of whom is: residing in Cuddalore and the other in Chidambaram. He is having a flourishing, trade in Singapore. His wife is also a native of Cuddalore and he married her in 1954. His brother is doing business at No. 182. West Car Street, Chidambaram. In order to settle his family he has purchased a house at Chidambaram for Rs. 23,00a and the shop from which he seeks to evict the respondent for Rs. 9,100. It is his desire that he should carry on a business of his own in that shop at Chidambaram. He further alleged that there was wilful default on the part of the respondent in the payment of arrears of rent.

2. When the petition came on for hearing before the Rent Controller, he found that the building from which eviction is sought is a non-residential one, that there was enough documentary evidence to show that the petitioner was carrying on business on the date of the application, that the petitioner was not possessed of any Other non-residential building of his own and that his claim was bona fide. The Rent Controller accordingly allowed the petition for eviction.

3. But on appeal, the learned Subordinate Judge of Cuddalore took a different view. The reasons given by him for not accepting the case of the petitioner are the following. The documentary evidence such as account books varukku book, etc., relied on by the landlord are all faked ones and much reliance cannot be placed on them. The application for eviction was not bona fide, because considering the dimensions of the shop in question, it is highly doubtful whether it will be sufficient to locale a wholesale business in paddy and grains. The landlord has invested only a sum of Rs. 5,000 and the turnover of the business is very small. The name board of the business is written in chalk. The landlord has only a part-time clerk, for the business. The stock of paddy kept by him was also low. The account books and other books relied on by the landlord were produced only at a very late stage, long after the filing of the counter-statement of the tenant. For all these; reasons the learned Subordinate Judge reversed the findings of the Rent Controller r allowed the appeal and dismissed the petition for eviction.

4. When the matter came up in revision, the learned District Judge accepted the findings of the Subordinate Judge and observed that it is a matter for suspicion that the petitioner would have invested only a sum of Rs. 5,000 when admittedly he had purchased a house for over Rs. 23,000 and also the suit shop for about Rs. 9,100 and that the circumstances would indicate that the plea of the petitioner that he intended to do wholesale business was not quite true. He accordingly dismissed the revision petition and confirmed the order of the Subordinate Judge

5. It is the common case that the petitioner is a native of Cuddalore. He has got a brother who is residing and carrying on business at Chidambaram. The petitioner is anxious to settle in Chidambaram and do business there and with the view he had purchased a house at Chidambaram and a shop for Rs. 9,100 from Rohya Bivi in April, 1958. He informed the respondent about the purchase of the suit shop-by him and asked him to vacate and surrender possession of the shop. As the respondent was evading, the petitioner also gave a notice to the respondent on 12th, June, 1958 calling upon him to deliver possession of the shop to enable him to do business. He registered his name in the office of the Commercial Tax Officer as a person intending to do wholesale business in paddy and grains. He obtained a. licence in the month of August, 1958. For the time being he is carrying on business in a portion of his brother's house. In the course of his business he had maintained-bill books (Exhibits A-3and A-4), chitta (Exhibit A-5) and ledger (Exhibit A-7)-Exhibit A-8 is the receipt for payment of registration fee for the year 1958-59 in the office of the Assistant Commercial Tax Officer. Exhibits A-11 and A-12 are receipts for payment of sales tax by the petitioner. Exhibit A-21 is the cash bill for the purchase of paddy. Exhibit A-22 is the account book of the petitioner for purchases effected. These are the documents produced by the petitioner to show-that he is carrying on business in paddy from 14th April, 1958. The learned Subordinate Judge did not place any reliance on these documents, but agreed with the-contention of the tenant that they were got up for the purpose of this case to show that the petitioner was carrying on business on the date of the application for eviction.. He also did not believe the case of the petitioner that he was carrying on wholesale-business since the amount invested as capital in the business was only Rs. 5,000 and the turnover of the business was also small. The learned District Judge did. not consider in detail the documentary evidence in the case and confirmed the findings of the Subordinate Judge holding that there was no sufficient material for interfering with the order of the Subordinate Judge in revision. It is true the powers of the revision Court are limited. In an unreported decision in C.R.P. No. 1420 of 1954 Rajagopala Ayyangar, J., has enumerated certain conditions which would justify interference by the revisional authority with a finding on fact of the subordinate authority. The learned Judge pointed out that a revisional authority cannot normally interfere with a finding of fact unless (a) there are no other materials on which such a finding could be based or (b) the finding has been reached by a consideration of irrelevant or inadmissible matter, or (c) it is so perverse that no reasonable person could have reached that conclusion or (d) the finding has been reached by an erroneous understanding of the law applicable to the matter. This decision has been cited with approval by Rajamannar, G.J., in Sasivarpa Thevar v. Ponnu (1957) 1 M.L.J. 158. where the learned Chief Justice expressed the view that a Judge or a Tribunal exercising revisional jurisdiction under such an enactment as file Madras Buildings (Lease and Rent Control) Act is not ordinarily competent to interfere with the findings of fact arrived at by an inferior Tribunal. But, in considering a similar provision in a Punjab Act in Mod Ram v. Suraj Bhan : [1960]2SCR896 the Supreme Court has held that the High Court has jurisdiction to examine the legality or propriety of an order of an inferior Tribunal. In that case, the Supreme Court observed:

The revisional power conferred upon the High Court under Section 15(5)(of the Punjab Act) is wider than that conferred by Section 115 of the Code of Civil Procedure. Under Section 15(5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and the would clearly justify the examination of the propriety or the legality of the finding made by the authoties in the present case about the requirement of the land lord...

This decision has been followed by Anantanarayanan J., in an unreported decision in C.R.P. No. 2570 of 1960, where the learned Judge held that the interference in revision by the District Judge with the order of the Subordinate Judge was within the ambit of Section 12-B of the Act and not vitiated by any lack of jurisdiction.

6. In the present case, therefore, the learned District Judge was not justified in summarily disposing of the revision petition without referring to any document in the case on the ground that he could not interfere with the findings of facts arrived at by the Subordinate Judge. The reasons given by the Subordinate Judge for not accepting the case of the landlord are not convincing. The main requirements to be satisfied by the landlord under Section 7(3)(iii) of the Act are that he should be carrying on a business on the date of the application for eviction and his claim should be bona fide. It is irrelevant to consider whether he has invested Rs. 5,000 or Rs. 50,000. It is equally irrelevant to consider whether the turnover of the business is small or large. The petitioner has very recently started business. He has not settled in business. Naturally he would like to be very cautious in doing wholesale business and may not have invested a large amount initially, As pointed out by Panchapakesa Ayyar, J. in Nataraja Achari v. Baiasubrarnanian : (1957)2MLJ492 . carrying on a business need not necessarily mean that the landlord shall have begun the trade vigorously and it would be enough, if he had made all the preparations for the same. Similarly in Venkataswami & Sons v. Virabhadraswami (1955) An. W.R. 695. Viswanatha Sastri, J., held:

The phrase 'carrying on a business' in Section 7(3)(a)(iii) has no fixed connotation and its meaning and effect have to be ascertained from the context in which it is used, the nature of the business and the transaction incidental to it...There is no yardstick by which we can measure the range of activities necessary to constitute the carrying on of business. A business might take sometime for its being organised and set on foot as a trading venture.

There is ample evidence on record to show that the petitioner had come down to Chidambaram with a view to settle his family there and also to carry on a wholesale business in paddy and grains and that he has made all the necessary arrangements and preparations for carrying on the business and he is actually carrying on the business in a portion of his brother's house. It will be too much to assume that he would have manoeuvred to get a licence for starting the business in paddy and grains and would have printed bill pooks in his name and obtained the signatures from various customers for the goods supplied to them and maintained the various account books only for the purpose of pretending that he was carrying on a business of his own on the date of the application for eviction and complying with the requirements of the Act. We cannot also attach much significance to the fact that the account books and other books were produced only on 20th October, 1958. The petition was filed on 21st July, 1958 and the account books and connected records were produced on 20th October, 1958. The petition came up for hearing on 6th November, 1958, and evidence was actually recorded on that date. The fact therefore remains that long before the hearing of the petition, the petitioner had filed all the relevant records. I do not think that any adverse inference can be drawn by reason of the delay in producing the account books. Taking all the circumstances into consideration, I am satisfied that the application of the petitioner is bona fide one and the petitioner required the suit shop for carrying on his business. I am therefore inclined to agree with the findings of the Rent Controller and uphold the order of eviction passed by him.

7. The revision petition is therefore allowed and the order of the District Judge is set aside and that of the Rent Controller is restored.

8. It is represented that the respondent is carrying on business in the suit shop for the last 20 years. I think that it will no be proper to direct him to vacate the premises immediately and that sufficient time should be given to him to vacate the premises, so that he may secure alternative accommodation for continuing his business. I accordingly grant him time till 1st May, 1964 to vacate the premises. No order as to costs in this C.R.P.


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