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R.M. Solai Nadar Vs. A.T.A.V. Guruswami Nadar and Co. Represented by A.V. Guruswami Nadar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1969)1MLJ629
AppellantR.M. Solai Nadar
RespondentA.T.A.V. Guruswami Nadar and Co. Represented by A.V. Guruswami Nadar
Cases Referred and Anandhayee Ammal v. S. M. Khaja
Excerpt:
- .....case is not a mere wish but was reflection of a genuine desire to occupy, for his business, the madurai premises for which he was prepared, as far as he could.10. even considering the business carried on by the sons at dindigul, it can reasonably be concluded that for that business at least the premises was required-regarding the question of bona fides it is now made clear in n. sampathu chetty v. s.v. bapulal (1967) 1 m.l.j. 289, and anandhayee ammal v. s. m. khaja & co i.l.r. (1968) mad. 284 : (1967) 1 m.l.j. 368, that bona fide means:.in cases under section 10 (3) (a), the landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose;11. bona fides is alien for consideration unless it is proved that there is.....
Judgment:

T. Ramaprasada Rao, J.

1. The petitioner-landlord is for a second time in this Court in the same proceedings wherein he sought the eviction of the respondent-tenant, under old Section 7 (3) (a) (iii) as amended by Madras Act VIII of 1951 and new Section 10 (3) (a) (iii) of Act XVIII of 1960, from a non-residential building of his in the town of Madurai. Though the proceedings was initiated under the earlier Act as amended by Act VIII of 1951, yet it is not disputed that it is governed by the provisions of Act XVIII of 1960. The petitioner was unsuccessful throughout and when he came to this Court in C.R.P. No. 2154 of 1963, Alagiriswami, J. set aside the order of the District Judge on the ground that he did not apply his mind to the crucial question involved in the petition, whether the requirement of the non-residential premises by the petitioner was bona fide or not. The matter was remanded to his file and once again the learned District Judge has disposed of the matter laconically and without adverting to the law applicable to the case and without appreciating the correct facts. It has therefore become necessary for me to peruse the records from the beginning and hear arguments of Counsel in full.

2. The relevant facts are as follows. The petitioner who is a scrap-iron dealer for the past several years, is licensed to do the same business at Tirumangalam, not within the precincts of Madurai Town where the suit premises is situate. The petitioner has 8 sons of whom 3 are in business dealings in trunk boxes at Dindigul near Madurai. This is obviously allied to iron trade. The petitioner in the witness box, though not in the pleadings, stated that the premises is required for the business of his sons also. It may be noted that the petition was filed under the Act of 1949 as amended by Act VIII of 1951, which provided for an application, in case it is a 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 etc. There was no provision then for a similar application for possession in case the premises was needed by his son. The petition was filed in June 1960. Act XVIII of 1960 came into force from September, 1960 and under Section 10 (3) (a) (iii), a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of the building, in case it is a 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 which is his own. Section 35 of Act XVIII of 1960 enabled the petitioner to take advantage of the changed law and apparently he gave evidence before the Controller that the premises was required by his sons also. The Rent Controller noticed this fact. He categrically found that the documents filed as well as the petition indicated that the petitioner was doing business in scrap iron and that he required the building in the occupation of the respondent for the same. He did not fully advert to the requirement of the premises by the sons of the petitioner, though it was specifically referred to in the evidence. He however held that the petitioner did not obtain any quota for such scrap iron for doing business in Madurai and surmised that the trade of the petitioner was random, precarious and not appreciable. He entertained a doubt whether the petitioner had any capital to expand or start a business at Madurai. Hence he was of the view that it was doubtful if the petitioner bona fide thought of starting a business at Madurai and he dismissed the application.

3. The appellate authority found that there cannot be much of doubt about the petitioner's business at Tirumangalam. Having found this, he dismissed the appeal on the ground that no application has been made to secure the quota of iron for Madurai. He also hesitantly found that the requirement pleaded for the sons' business is an after-thought, since it was not pleaded. The learned District Judge in the first instance laconically held that the requirement, even if true, was not bona fide. He however held that there was considerable force in the argument of the Counsel for the landlord that it was not possible for the landlord to apply for the quota of iron at Madurai, as by then there was no business place available to the petitioner, at Madurai. This Court in revision in C.R.P. No. 2154 of 1963 set aside the order of the learned District Judge as it appeared ex facie that he did not apply his mind and come to a conclusion that the requirement was not bona fide. On remit, the learned District Judge for a second time purported to consider the merits and came to a conclusion that the documents do not positively establish that the petitioner wanted to expand the business because the petitioner did not obtain the quota for iron for Madurai. According to him, there was no evidence of any arrangement having been made at Madurai by the petitioner to start the business and he abruptly came to the conclusion that the petitioner has not proved his version that he required the premises for his own use. He again dismissed the petition. Against this the present Civil Revision Petition is filed.

4. Even the impugned order is not speaking enough. As to why the learned District Judge in revision differed from the finding of the Rent Controller that the petitioner needed the premises for his business, is not clear. There is no discussion. It is equally unexplained as to why the earlier view of the learned District Judge that it was not possible to apply for a quota of iron for trade at Madurai without a business place for the purpose, was not referred to. He completely failed to consider the case of the petitioner that the premises was required for the sons ' business I shall advert to the merits of the case later.

5. The preliminary objection of the learned Counsel for the respondent is that in revision , this Court ought not to interfere on finding of facts of the learned District Judge The scope of the proceedings under Section 25 of Act XVIII of 1960 has been repeatedly held to be wider than that available to this Court in revision under Section 115, Civil Procedure Code. Whereas under Section 115, Civil Procedure Code, interference is possible only on matters of exercise of jurisdiction, under Section 25 of Act XVIII of 1960 (The Madras Buildings (Lease and Rent Control) Act, 1960), the legality, regularity and propriety of the order impugned can be canvassed in the High Court If therefore the High Court can probe and find whether an order of the lower Court is regular or proper, then it follows that the High Court : can, in suitable cases, interfere with findings of fact as well, if they are prima facie unsustainable, irregular and improper, and disgorge such factual finding apparent on the face of the order. The Supreme Court in Moti Ram v Suraj Bhan : [1960]2SCR896 expressly opined that the propriety or legality of the finding as to the requirement of a landlord for reconstructing the demised premises etc , can be canvassed in the High Court under a provision similar to that of Section 25 of the Act. The test has been correctly reiterated by Ramamurti, J., in Khivraj v. Maniklal I.L.R. : AIR1966Mad67 , thus:

While interfering with findings of fact the test to be adopted is that if an order is found to be improper on the evidence on record the High Court will be doing the right thing in setting aside the order of the lower Court; if the improbabilities, which induced the lower Court to reject the positive evidence were to be eschewed or excluded from consideration and there is no further ground exigible from the expressed reasoning of the lower Court or from the rest of the record to justify the order passed by it, the High Court will interfere in revision.

6. In the view that I hold that the learned District Judge failed to advert to the evidence as let in the case and as his improbable conclusions have to be eschewed and the Rent Controller's finding that the petitioner required the building has to be upheld, I am unable to accept the preliminary objection.

7. Before referring to the abundant case law available on the subject under consideration, it is convenient to notice the salient ingredients of Section 10 (3) (a) (iii) of the Act. They are : (1) the landlord requires the premises; (2) that such requirement is for purposes of a business which the landlord or his son is carrying on; (3) that such a requirement is bona fide; and (4) he is not occupying another building of his own in the same city, town or village in which the suit premises is situate. The word' requirement' is not equatable to a mere wish, convenience or whim of the landlord. An element of ' must have ' is inhered in it. A mere unbridled or arbitrary liking on the part of the landlord is not sufficient. The test appears to be that if an outside agency is called upon to express an opinion whether the landlord needs or requires the premises, it should return, a verdict that having regard to the circumstances of a given case and bearing certain objective standards in view, the need is genuine, honest and not prompted by a collateral purpose. It should however be borne in mind that the landlord is the sole arbiter of his requirements. Ultimately the opinion of a well-instructed Judge on the subject has to rest on the sincerity of the desire, the genuineness of the wish and the reality of the situation as established in evidence. Closely allied with the element of ' genuine requirement ' is proof of bona fides on the part of the landlord. Bona fides of an individual is reflected in his conduct and his request and invariably if the requirement is found to be genuine, honest and not tainted with an oblique purpose, then bona fides normally spring from it. The other element constituting Section 10 (3) (a) (iii) is that the premises is required for a business which the landlord or his son is 'carrying on'. There is no measure to reckon the activities covered by the expression 'carrying on business'. The very term comprehends an act or mercantile pursuit. The Legislature having not indicated' the range of such pursuit or the nature of such acts, it is for the Courts to judge from the facts of each case : (a) whether they could be fairly and normally characterised as a present intendment on the part of the landlord to carry on a trading pursu it after having made bona fides preparations for the same, though it is not necessary to establish that he has enough capital to enter into the business; (b) that he has started in right earnest a trade, and (c) that his intentions are not obscure and motivated. If the landlord or his son is already carrying on a business, then the problem becomes easier, for in such a case, the question is whether the need is genuine.

8. Having thus analysed the section, I shall notice the precedents cited at the Bar in support of their respective contentions. The following propositions are deducible from them:

(a) There is no yardstick by which we can measure the range of activities necessary to constitute the carrying on of business. Viswanatha Sastri, J., in Venkataswami & Sons v. Virabhadraswami (1955) An.W.R. 695

(b) Carrying on business need not necessarily mean that there is an active and vigorous trade. It is enough if all the preparations have been made. Panchapakesa Ayyar, J., in Nataraja Achari v. Balasubramaniam : (1957)2MLJ492 .

(c) If bona fide preparations for a business is afoot, the business may be regarded as being carried on in many cases. Balakrishna Ayyar, J., in Azimudeen Sahib v. Rangaswami Pillai : (1958)2MLJ389

(d) Merely because a person had done certain business in the past and intends to do similar business in future, he cannot be said to be 'carrying on a business'. Subramanyam, J., in Krishna Iyer v. Karur Vysya Bank : (1959)2MLJ215 :

(e) It is irrelevant to consider whether he has invested a sufficient sum or that he should have invested more. It is equally irrelevant to consider whether the turnover of the business is small or large. Venkatadri, J., in Arumugha Nattar v. Hussain Moideen Khan : (1964)1MLJ386 .

(f) It is not necessary for the purpose of carrying on a business' within the meaning of Section 10 (3) (a) (iii) of the Madras Buildings (Lease and Rent Control Act, 1960, that the entire activity of a business should exist. Section 10 (3) (a) (iii) of the Act would cover the case where the authorities come to the conclusion that the demand for occupation is a bona fide one and that the landlord has already commenced some activity in connection with the starting of the business.

There is no reason why a landlord having the capital ready and the intention as well to do business cannot be said to have commenced his business, though the activity relating to it has to await the securing of accommodation. Ramachandra Iyer, C.J., in Ramaswamy Pillai v. Karmega Thevar (1964) 2 M.L.J. 89 : I.L.R. (1964) Mad. 712

(g) 'Carrying on business' is essentially a question of fact or a mixed question of fact and law and each case has to be decided on its own facts and no general proposition of law can be evolved. Even construing the term most liberally in favour of the landlord it cannot be said that the mere fact that a licence has been. obtained from the municipality to run a flour mill can by itself satisfy the pre-requisite conditions to evict a tenant under Section 7 (3) (iii) of the Madras Buildings (Lease and Rent Control) Act, 1949. When there is no evidence that the landlord has purchased the requisite machinery or plant for erecting a flour mill or has done any other business activity necessary to start a new venture the mere obtaining of a licence will not entitle the landlord to come within the requirements of law to evict the tenant. Jagadisan, J., in Govinda Chettiar v. Pachayappa Pandithar : (1960)2MLJ382 .

(h) The business which the landlord's family is carrying on, cannot be regarded as a business which he is carrying on, and if he has to be regarded in his individual capacity, he is certainly not carrying on any business. Srinivasan, J., in Subramania Naidu V. Mohammed Zyauddin (1968) 81 L.W. 34. '

9. Thus the case-law is abundant and at once varying. The general principle noticeable in the majority of cases appears to be that bona fide preparation to do business at the place where the tenant is trading coupled with an honest and a genuine need for the same would entitle a landlord for an order under the section. In the instant case the finding is that the petitioner was carrying on business on the date of the application and his requirement of the premises in question at Madurai is real. This finding was not converted to by the appellate authority or the revision authority. Further, the, petitioner has said that his sons, who were admittedly trading in trunk boxes, required the premises. Hence the petitioner has proved that he required the premises for a business carried on by him or by his sons. The one main limb of the section is satisfied. The Courts below have also noticed that in the peculiar circumstances, no application for quota could be made at Madurai without a business premises. The landlord's intention to get the premises cannot be lightly characterised as non-genuine or for an oblique purpose. The vague suggestion that there is enmity between the petitioner and a partner of the respondent firm stands only as a bare suggestion. Applying the tests laid down by Panchapakesa Ayyar, J. Balakrishna Ayyar, J., and Ramachandra Iyer, C.J., I hold that the desire of the landlord in the instant case is not a mere wish but was reflection of a genuine desire to occupy, for his business, the Madurai premises for which he was prepared, as far as he could.

10. Even considering the business carried on by the sons at Dindigul, it can reasonably be concluded that for that business at least the premises was required-Regarding the question of bona fides it is now made clear in N. Sampathu Chetty v. S.V. Bapulal (1967) 1 M.L.J. 289, and Anandhayee Ammal v. S. M. Khaja & Co I.L.R. (1968) Mad. 284 : (1967) 1 M.L.J. 368, that bona fide means:.in cases under Section 10 (3) (a), the landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose;

11. Bona fides is alien for consideration unless it is proved that there is a device in 'the proceeding other than honest.

Where there is a foundation or reasonable material for a Judge to come to the conclusion that there is a business either by the landlord or landlady or his or her son, as the case may be, and it is for that business that the premises is required, there is no reason why the Tribunal should not apply strictly Section 10 (3) (a) (iii) which makes it clear that the landlord would as a matter of course be entitled to it once that requirement is established. It is not necessary that the son should carry on a business in the city, town or village in which the property is situate to enable the father or mother to apply under Section 10(3) (a) (iii).

12. In the instant case no question of mala fides arises.

13. One other factor also has to be incidentally referred to. The Legislature in its wisdom has provided against improper evictions by unscrupulous landlords by providing a safety valve in Section 10 (5) (a) of the Act, which enables the tenant to ask for restitution in case the landlord fails to occupy the premises. Section 10 (5) (a) is similar to Section 16 (1) of the Act. The latter provides a right to the tenant to occupy if the building is not demolished as represented; the former provides a similar right to the tenant if the building is not occupied within one month of the date of obtaining possession or having occupied it vacates the same without reasonable cause within six months from that date. With this safeguard duly provided in the Act and in the conspectus of the facts in the instant case and having regard to the real need of the petitioner and/or his sons, I am of the opinion that the order of the learned District Judge is irregular. It is therefore set aside and this Civil Revision petition is allowed. The respondent is given time till 31st December, 1969, to vacate the same. There will be no order as to costs.


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