@JUDGMENTTAG-ORDER
S.K. Krishnan, J.@mdashThe Civil Revision Petition is directed against the fair and decretal order passed in R.C.A. No. 35 of 1998 on the file of the Rent Control Appellate Authority, Subordinate Court, Kovilpatti, dated 24.10.2000, confirming the fair and decretal order in R.C.O.P. No. 16 of 1995 on the file of the Rent controller, District Munsif Court, Kovilpatti, dated 31.10.1996. The petitioners 2 to 7 are the legal representatives of the deceased first petitioner, who was the tenant, for rent Rs. 375/-, under the first respondent. The second respondent, who is carrying on a business of dry-fish, is the brother of the first respondent and he is occupying a non-residential building, as a tenant, belonging to Dhakahinamara Nadar Sangam for keeping stock of dry-fish. Since it is difficult to run the business by the second respondent from the rented building, the first respondent requires the building being occupied by the petitioners and the same was informed to the petitioners, i.e., the respondents require additional accommodation. Thereafter, the petitioners stopped the payment of rent to harass the first respondent which resulted in the arrears of rent. Anticipating a legal action by the first respondent, the petitioners, filed a petition in R.C.O.P. No. 1 of 1995 u/s 8(5) of the Tamil Nadu Act of 18 of 1996 on 3.1.1995. The petitioners never tendered the rent from the month of Vaikasi though the first respondent was ready to receive the rent. No notice was given by the petitioners, to name a bank for depositing the rent. The deposit of lumpsum amount towards rent would not absolve the petitioners from the act of wilful default. The proceedings in R.C.O.P. No. 1 of 1995 of this Court cannot be used as a shield against eviction for wilful default and the requirement of additional accommodation. Hence, the respondents filed a petition under Sections 10(3)(a) and 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, for eviction.
2. On the basis of the oral and documentary evidence, the Rent Controller, though came to the conclusion that the petitioners have not committed wilful default, ordered eviction since the requirement of additional accommodation by the respondents herein is a bonafide one. Against that order, the matter was carried to the appellate authority, who confirmed the judgment and decree of the Rent Controller. Aggrieved by the same, the petitioners have come forward with this revision.
3. Heard the learned counsel for the petitioners as well as the respondents.
4. The point for consideration is whether the order passed by the Rent Control Appellate Authority is correct and proper and legally sustainable ?
5. The learned counsel appearing for the revision petitioner vehemently contended that the Courts below failed to note that the respondents have got another building in door No. 145-A and some other buildings in Kovilpatti town, where the respondents can carry their dry fish business and also there is no evidence to show that door No. 145-A is not fit for carrying on dry fish business. Further, the Courts below failed to consider the difficulties and hardship of the petitioner if eviction is ordered and therefore, the judgment of the Rent Control Appellate Authority has to be set aside.
6. Emphasising the above stated valid grounds, the learned counsel appearing for the revision petitioner would vehemently contend that the requirement of additional accommodation sought for by the landlord is not genuine one and the burden lies on the landlord to prove his genuineness. Further, it is pointed out by the learned counsel for the petitioner that the various reasons stated by the landlord before the Rent Controller are not genuine and with an ulterior motive of evicting the tenant from the demised premises, he approached the Court for the relief of eviction against the tenant. In support of his contention the learned counsel for the petitioner relied on the following decisions for consideration.
7. In Hajee Noor Mohamad Vs. M. Arunachala Pandit (1992 T.L.N.J. 233), the learned Judge of this Court in the revision filed by the landlord against the order of the appellate authority, who reversed the order of the Rent Controller since he has not satisfied with the bonafide claim of additional accommodation, after elaborately discussed the Section 10(3)(a)(iii) of the Tamil Nadu Buildings (lease & Rent) Control Act 1960 observed as follows:
The test for the bonafide is clubbed with various circumstances and the conduct of the landlord. In this case except the assertion of the landlord that he wants to start the business in hardware and electric goods, there is no other piece of evidence to show that he has done something more to commence the business. The normal conduct would be to ascertain the probable profit in the business from the experienced dealers on similar goods and contact with the wholesale dealers from whom the goods could be attained for marketing. But the landlord does not seen to have taken any action in this direction. Therefore, I doubt whether he has taken up any steps for the purpose of carrying on the business.
8. In Arumugha Chettiar vs. Jayaraman (1995 M.L.J. 282), the learned Judge of this Court has elaborately discussed the genuineness of the landlord in the claim of additional accommodation on two grounds, namely, the building requires immediate demolition and reconstruction and to carry on the business.
9. With regard to the ground of demolition and reconstruction, the learned Judge observed in para 8 of the judgment as follows:
The statutory condition forgetting an order of eviction on the ground of demolition and reconstruction is that the landlord has to prove by positive evidence that the physical condition of the building is bad and that it requires immediate demolition and reconstruction. Even though the development of the area, the economic condition of the landlord, etc. Are relevant factors, the physical condition of the existing building has to be proved, since that is the primary requirement under the section. The landlord has not proved the physical condition of the building by taking out a commission before the rent controller. Even if the landlord has got the means, and even if he has taken the plan and licence for the purpose of construction, that is not sufficient. The finding of the appellate authority that in the absence of proof regarding the physical condition of the building, eviction cannot be ordered, is therefore sustained.
10. With regard to the ground of the requirement of the building for his own occupation, while discussing the legal principles in the ingredients of the relevant provision of law, the learned Judge observed as follows:
In a rent control proceeding, the landlord need not produce before court evidence regarding the entire money needed for starting business, to prove his bona fides. What has to be shown is the ability to raise the necessary funds............... Taking into consideration the entire evidence and also the admission of the tenant that the petitioner is a man of means, this Court can enter a finding that the petitioner has the capacity to invest necessary funds in case he starts a business. Hence the finding of the appellate authority that the petitioner is not entitled to an order of eviction since he is not carrying on business, cannot be supported. The finding of the appellate that the petitioner has not taken any steps for the said purpose is also against the evidence that has been let in this case. The petitioner has proved all the ingredients under the section.
11. In the above case, though the landlord sought for eviction on the said two grounds, the learned Judge allowed the revision in part holding that the petitioner is entitled to get eviction on the ground that he requires the building in question for his own occupation and the claim of the landlord that he requires the building in question for demolition and reconstruction is rejected.
12. In
From the aforesaid decisions, it is clear that mere desire of the landlord to live separately from his father cannot be attributed to his need for the premises occupied by the tenant. It is often seen that a desire often takes its origin from what one likes and dislikes and necessarily it is not depended upon his need. But we cannot lose sight of the fact that sometimes the desire may be outcome of one''s need. So when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bonafide. The need must be bona fide, genuine, honest and conceived in good faith. In the present case what we find is that, it was not pleaded by the landlord in his petition that he for certain compelling reasons desires to live separately from his father and for that reason he required the premises. We also do not find any evidence on record to show that the landlord required the premises and his need was bona fide. The only material on record for eviction of the tenants before the Rent Control Authority was mere desire of the landlords to live separately from his father. Such a desire is not substitute of the need for the premises which a landlord is required to plead and establish. Thus, we are of the view the landlord''s desire to live separately was not a valid ground for eviction of the tenants from the premises. We therefore, find no substance in the submission of learned counsel for the appellants.
13. In
It is also relevant to point out that the demised premises has been leased out for non residential purposes and the landlady has sought for eviction of the revision petitioner for residential purposes. The law is well settled that eviction can be sought against the tenant by the landlord of a nonresidential premises for nonresidential purposes alone and not for residential purposes, subject to Sectional of the Act.
14. In S. Loganathan vs. V.S. Rangasamy ( (2002) 1 M.L.J. 31 = 2002 2 L.W.559), the learned Judge of this Court, with regard to wilful default, held as follows:
It is further, seen that the tenant issued notice under Ex.P.4 directing the landlord to specify the bank for depositing the rent. The above notice is dated 1.7.1998 i.e., prior to the filing of R.C.O.P. The conduct of the tenant in sending two months rent by money order before the date of filing the R.C.O.P. and issuing notice to the landlord directing him to specify the name of the Bank to enable the tenant to deposit the rent, will only show that the tenant has not committed any wilful default in payment of rent. In any event, the above delay and conduct of the tenant will not amount to wilful default much less supine indifference.
15. Per Contra, the learned counsel appearing for respondents would contend that on the basis of the oral and documentary evidence with regard to the bonafide requirement of additional accommodation, the Courts below granted the relief sought for by the respondents and therefore, no interference is called for by this Court.
16. The learned counsel for the respondents, in support of his contention, relied on the following decisions:- In
17. In Nathella Sampathu Chetty vs. Sha Vajingjee Bapulal (1967 I MLJ 289 = 80 L.W. 73), the Division Bench of this Court held that though the fact that the landlord owned several other buildings, which were not mentioned in the petition is of no consequence, as it is entirely open to the landlord to choose which building he would require for his business.
18. In T. Rajyalakshmi vs. K.B. Anandhakrishnan and others (2000 1 MLJ 129), this Court held as follows:
When the landlady requires the premises bonafide to set up her own business, it should positively be considered irrespective of the fact that she has business interest whether within the City limit wherein the premises is located or outside in the mofussil and there should not be any classification that the business is at one place and the premises wherein the business is either sought to be shifted or expanded is at another place.
19. In M/s. Akthars, represented by its Proprietor, R. Syed Tajuddin vs. Hitesh V. Shah (2000 1 MLJ 413), the learned Judge of this Court held that the claim of the landlord is that the premises in the occupation of the tenant is alone suitable for him. Therefore, it will not be open to the tenant to dictate as to the requirement of the landlord. It is neither for the authorities concerned nor the tenant to dictate as to where the landlord shall carry on business.
20. In
The bonafide of the landlord has been clearly established. May be the landlord originally said through the notice that he required the business for the use of his son. But, it does not mean that he could not change his requirement as for his own occupation for non-residential purposes. The materials on record clearly show that the landlord has made out a case for own occupation.
21. Even though the landlord/respondent has filed a petition before the rent control authority for evicting the tenant from the premises on two grounds, namely, wilful default and additional accommodation, the learned Rent Controller as well as the Rent Control Appellate Authority have concurrently come to a conclusion that the revision petitioner/tenant was not committed wilful default in payment of rent to the landlord, but with regard to additional requirement, the claim of the landlord/respondent is a bonafide one.
22. It is an admitted fact that the respondent/landlord has got a godown bearing door No. 145-A. It is also an admitted fact that the respondents/landlords themselves running their business in a rented building since the rented building is not sufficient and convenient for the landlord to run the dry fish business, the landlord requires demised premises let out to the tenant for their own occupation.
23. It is contended by the learned counsel appearing for the revision petitioners that apart from the door No. 145-A the landlord has got other buildings in Kovilpatti Town. However to prove this fact the tenant/revision petitioner has not produced any relevant materials. While describing the building bearing door No. 145-A, the landlord has stated as follows:
24. In this connection the learned counsel appearing for the respondents/landlord has categorically contended that with regard to the building bearing door No. 145-A, the landlord has categorically adduced satisfactory evidence before the rent control authority that he has let out the premises to one prabakaran. Moreover, while describing the features of the building the landlord stated that the building let out to Prabakaran is a godown and which is not at all fit for running the dry fish business in the said building. In this connection the revision petitioners though they contended that the building bearing door No. 145-A can be utilised by the respondents/landlord for running the dry fish business, they have categorically admitted that the said building has been let out to the said Prabakaran for running rice business. In this connection, the deceased first revision petitioner has deposed as follows:
25. With regard to the difficulties and hardship, though the petitioners would contend that they would face irreparable loss and hardship if eviction is ordered against them, no evidence was adduced as to what sort of hardship and irreparable loss they would sustain if eviction is ordered before the Rent Control Authority.
26. In the absence of the satisfactory evidence adduced by the tenant for establishing this fact before the Rent Control Authority, they cannot contend that in spite of sufficient evidence adduced with regard to the sufferings would be faced by the tenant if eviction is ordered, the Rent Control Authority has decided the issue against them.
27. It is to be noted that since the rent control authority did not find any materials connected with the hardship and difficulties to be faced by the tenant in the event of eviction is ordered, the learned Rent Control authority has decided the matter on the basis of the oral and documentary evidence.
28. Considering the facts and circumstances of the case, the landlord has categorically adduced satisfactory evidence before the Rent Control Authority in respect of the plea of requirement of additional accommodation for running dry fish business.
29. As already discussed above, eventhough the tenant has contended that the premises bearing door No. 145-A belongs to the landlord, during the course of additional evidence adduced before the Rent Controller, the tenant has categorically admitted that the said building was let out to one Prabakaran for running rice business.
30. In this connection, the requirement of additional accommodation sought for by the landlord is clearly established by the landlord himself as a bonafide one. While establishing his case, the landlord proved his genuineness, whereas, the tenant has not come forward to putforth his hardships, in the event of ordering eviction against him. No such evidence was adduced by the tenant in this regard. In the absence of any satisfactory evidence adduced by the tenant, considering the facts and circumstances of the case, the Courts below, the Rent Controller as well as the Rent Control Appellate Authority, have taken a right decision against the tenant.
31. Further, following the principles laid down by the Supreme Court, in
