IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19.6.2006 Coram: The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(NPD) No.581 of 2006 H.Vasanthakumar .. Petitioner/Appellant/ Respondent (Tenant) vs. S.Subash .. Respondent/Respondent/ Petitioner (Landlord) Revision Petition filed against the judgment dated 1.2.2006 made in R.C.A.No.754/2001, on the file of the VIII Small Causes Court, Chennai, confirming the order dated 9.10.2001 made in R.C.O.P.No.517/1999, on the file of the XII Small Causes Court, Chennai. For Petitioner : Mr.T.V.Ramanujam, Senior Counsel, for Mr.Sivasuyambu. For Respondent : Mr.AR.L.Sundaresan, Senior Counsel, for Mr.N.V.R.Suresh. ORDER: The unsuccessful tenant before both the authorities below is the revision petitioner herein. The respondent/landlord filed RCOP No.517/1999 under Sec.10(3)(c) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 (hereinafter called as 'the Act') for an order of eviction directing the revision petitioner to vacate and deliver vacant possession to the respondent herein of the shop portion in premises bearing Door No.20, Arcot Road, Kodambakkam, Chennai.24. 2. The respondent/landlord stated in the RCOP that the shop on the eastern side adjacent to the shop occupied by the revision petitioner is in the landlord's possession where he was originally having his medical shop. In November 1997, the son of the respondent started a departmental stores in a portion of the https://hcservices.ecourts.gov.in/hcservices/ medical shop and as such both the business, namely, the medical shop and the departmental stores are carried on in the same portion. In due course of time, the departmental stores business developed considerably and more stock of different varieties were to be kept in the shop and due to lack of space, the goods are stored on the floor resulting in hampering the movement of the sales people as well as the customers. As the shop in the occupation of the revision petitioner and the respondent are being separated only by a wall, the respondent/landlord could add the same to his shop by removing the wall. Therefore, the landlord filed the RCOP for eviction as he bonafidely required the shop in the occupation of the tenant for additional accommodation. 3. The revision petitioner as tenant resisted the RCOP by filing a counter wherein it was stated that the landlord's requirement is not bona fide and the revision petitioner would be put to hardship as he invested crores of rupees for the development of the portion in the petition premises. The Rent Controller by order dated 9.10.2001 ordered eviction and the Appellate Authority by order dated 1.2.2006 confirmed the same. Hence the tenant has filed the above revision petition against the concurrent findings of the authorities below. 4. Heard the learned Senior Counsel appearing for the revision petitioner and the learned Senior Counsel appearing for the respondent. I have also perused the documents filed in support of their submissions and the judgments referred to by them. 5. Learned Senior Counsel appearing for the revision petitioner contended that the proviso coming under clause 10(3)(e) of the Act is a mandatory one, according to which, if an application for eviction filed under Sec.10(3)(C) is received, the Rent Controller shall reject the same, if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. According to the learned Senior Counsel appearing for the revision petitioner, this mandatory provision was not at all adhered to by the Rent Controller and in such circumstances the matter is to be remitted for fresh disposal. 6. In support of his submissions, the learned Senior Counsel appearing for the revision petitioner relied on the following judgments:- (1) AIR 1998 S.C. 3235 (B.Kandasamy Reddiar v. O.Gomathi Ammal); (2) 1998(I) CTC 679; (3) AIR 2000 Mad. 15 (S.Mohammed Iqubal v. M.padmanabhan) and (4) (2003)2 SCC 320 (Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada. https://hcservices.ecourts.gov.in/hcservices/ 7. Per contra, the learned Senior Counsel appearing for the respondent submitted that the proviso with regard to relative hardship was very well followed by the Rent Controller and only after considering the same, eviction was ordered by the Rent Controller which was upheld by the Rent Control Appellate Authority also. The learned Senior counsel submitted that when both the authorities have concurrently rendered a finding against the revision petitioner, that too, after following the mandatory provisions, the same need not be interfered with by this court under Sec.25 of the Act. 8. The learned Senior Counsel for the respondent/landlord relied on the following judgments in support of his contentions:- (1) 1965-II-M.L.J. 236 (Nambudiri v. Edwin Israel); (2) AIR 1982 Mad. 126 (P.Srinivasulu v. M/s.Shanthi Traders); (3) 100 L.W. 258 (Ruth Margaret Gonsalves v. K.T.H.Presses by its Proprietor, Kumar; (4) 1997-1-L.W. 421 (Hotel De-Broadway, etc., v. M/s.Snow White Industrial Corporation,etc.; (5) 1997-II-M.L.J. 496 (Kuthalingam v Jahir Hussain); (6) 1998-2-L.W.341 (Sundaram, P.A. v. Mrs.S.Amaravathy); (7) 1999(I) CTC 221 (Easwara Rao, T. v. N.W.Ansari); (8) 1999-1-L.W.650 (M.P.M.Hameed Ibrahim and another v. V.S.Bagirathan and 3 others); (9) 1999(II) CTC 215 (Sivanraj v. Essakkimuthu); 1999 M.L.J. 233 (Mookkan v. Abdul Rasheeth); (10) (2000)II M.L.J. 196 (Ameena Beebi alias Jamurthu Begum v. Khaja Mohideen); (11)(2000)II M.L.J. 72 (Dakshinamoorthy v. Alphonsea Celestine Kamala Benjamine)and (12) 2005(5) CTC 549 (Vairam v. M.S.R.Nageswaran. 9. First let me consider the judgments cited on behalf of the parties. 10. In AIR 1998 SC 3235 cited supra, the Hon'ble Supreme Court held as follows:– "5.Having heard the learned counsel for the appellants and the respondent we are of the view that the factual aspects of the case need not be gone into as these appeals must be allowed for the simple reason that in disposing of the revision petitions the High Court did not at all take into consideration the following proviso, which finds place under clause(e) of Section 10(3) and reads as under:- "Provided that, in the case of an application under clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the https://hcservices.ecourts.gov.in/hcservices/ tenant by granting it will outweigh the advantage to the landlord." Apart from the fact that while dealing with the question of eviction of a tenant on the ground of requirement of additional accommodation under S.10(3) (c) the consideration of the above proviso is mandatory, in the instant case it is all the more necessary in view of the admitted facts that the respondent has now taken possession of door No.143, earlier occupied by Co-optex, and that she has also initiated execution proceeding for eviction of the tenant of door NO.147-A. As the mandatory requirement of the above quoted proviso has not at all been adverted to by the High Court in the light of the materials already on record and the above subsequent events we set aside the impugned judgment so far as it relates to the three appellants and remand the matter to it for fresh disposal of the three connected revision petitions in accordance with law and in the light of the observations made herein before. Since the matter is long pending the High Court is requested to dispose of the above petitions as expeditiously as possible preferably within a period of six months from the date of communication of this order. There shall be no order as to costs." 11. In the above judgment, the proviso which finds place under clause (e) of Sec.10(3) of the Tamil Nadu Act 18 of 1960 was considered by the Hon'ble Supreme Court and it was held that this provision is mandatory. 12. In 1998(I) CTC 679 cited supra, this court held as follows:- "15.If it is a case of additional accommodation, naturally, there must be a finding as to whether the hardship of the tenant will outweigh the advantage of the landlord. In regard to the same, the Rent Controller has not entered a finding. But the Appellate Authority has entered a finding, but not taking into account the relevant provisions of law. The evidence in that respect has also not been considered. The Appellate Authority has taken into consideration irrelevant https://hcservices.ecourts.gov.in/hcservices/ factors. It also should not have entered a finding when there was no finding by the Rent Controller. Under the above circumstances, I am constrained to set aside the judgment of the Appellate Authority and remand the matter to the Rent Controller to enter a finding whether the hardship of the tenant will outweigh the advantage of the landlord. For this limited purpose alone, the matter is remanded. Parties are permitted to adduce evidence on this aspect alone. I hold that the eviction petition is maintainable, and the claim of the landlady is bona fide. The remand is only for the purpose stated above. Rent Controller is directed to pass final orders on that point, after giving reasonable opportunity to both parties to adduce evidence on the limited point. Rent Controller is directed to dispose of the matter before the Court closes for Summer Recess. The revision petition is allowed as indicated above, however, without any order as to costs." 13. In the above case, this court has held that if it is a case of additional accommodation, there must be a finding as to whether the hardship of the tenant will outweigh the advantage of the landlord. 14. AIR 2000 Mad.15 cited supra, this court held as follows:– "23. All the judgments cited by the learned counsel for the respondent/tenant are pointed to the proviso to Section 10(3)(c) which reads: "Provided that in the case of an application under Clause (C), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord." Unless the requirement of the said proviso to be Section are satisfied with proper and adequate evidence in a convicting manner, a petition filed under the relevant section for eviction of the tenant cannot succeed. https://hcservices.ecourts.gov.in/hcservices/ 24.It is not in controversy that the tenant is running a photo studio in the premises and it is his case that he is eking out his livelihood from out of the said business. Needless to point out the hardships that the tenant will have to undergo in setting up his business in a different place wherein his interests would suffer in a great deal. Besides failing to lead rebuttal evidence in this regard, the landlord in the case in hand has also failed to prove on his part as to what are the advantages that he is going to have much less in proof of how it would outweigh the hardships of the tenant. It is an open case that absolutely no material evidence either by way of documentary evidence or even by strong oral evidence has been placed by the landlord in proof of his case and it would not be unfitting to say that the landlord, at this end has proved to be a miserable failure. There is no wonder that the Rent Control Appellate Authority has rejected the claim of the landlord requiring the premises for his additional accommodation under Section 10(3)(c) of the Act. There is no patent error or perversity in approach seen in the conclusions arrived at by the Rent Control Appellate Authority and I see no valid or tangible reason to interfere with the well considered and well merited judgment and decree passed by the Rent Control Appellate Authority." 15. In the above case also, this court has reiterated that unless the requirements of the proviso to Sec.10(3)(c) are satisfied with proper and adequate evidence in a convincing manner, a petition filed under Sec.10(3)(c) cannot succeed. 16. In (2003)2 SCC 320, the Hon'ble Supreme Court held as follows:– "14. The learned counsel for the appellant submitted that the statutory obligation cast on the Court to weigh and assess the comparative hardship has not been properly discharged and that has caused prejudice to the appellant. It was pointed out that the burden which lay on the tenant has been wrongly cast on the appellant as the High https://hcservices.ecourts.gov.in/hcservices/ Court has expressed during the course of its judgment that the appellant has adduced no evidence to show that shops were available in the locality where the tenant could shift on vacating the suit premises. It was also pointed out that the appellate court and the High Court have completely failed to examine whether at least a partial eviction from the tenancy premises could have been ordered. It has come in the evidence that some portions of the ground floor are being used by the respondent as godown and for storing waste material, the area whereof is approximately 300 sq feet as per the site plan available on record. In view of the case for eviction under Section 13(1) (g) having been made out by the landlord, if the tenant would have been directed to be evicted at least from the portions shown as "godown" and "waste material" in the plan which portion of the premises has not been in use for the business of the tenant, the tenant would not have suffered any prejudice or hardship or at least not much thereof. We find merit in the submission so made." 17. In the above case, the Hon'ble Supreme Court has dealt with Bombay Rent Control Act and held that burden of proving greater hardship lies on the tenant and a statutory obligation is cast on the court to weigh and assess the comparative hardship that is caused to the tenant and the landlord. 18. In 1965-II-M.L.J. 236 cited supra, this court held as follows:– "Mr.Subrmania Iyer, learned Counsel for the petitioner, urged before me that this case is governed by proviso to section 10(3) (c) of the Act, and that the tenant could be evicted only if, under the proviso, the authorities found that, on a consideration of the relative hardship and advantage, the hardship that would be suffered by the landlord would outweigh the inconvenience and hardship that the tenant might be put to. It is true that there is no specific reference to this proviso, but, on a reading of the order of the Rent Controller and District Judge, I am satisfied that the authorities below had undoubtedly in their mind https://hcservices.ecourts.gov.in/hcservices/ the proviso to Section 10(3) (c) and it was only after being satisfied that the hardship that would be caused to the landlord would outweigh the hardship of the tenant, that the claim of the landlord for eviction was upheld. In this connection, I may mention that this point based on the proviso to Section 10(3) (c) was not raised in the Courts below. In the course of the arguments, learned Counsel for the petitioner relying on a recent judgement of the Supreme Court in Mangailal v. Sugan Chand, A.I.R. 1965 S.C. 101, contended that as no notice under Section 106 of the Transfer of Property Act was given to him, the proceeding for eviction was misconceived and liable to be dismissed in limine. He also drew my attention to the order of Srininvasan, J., in W.P.No.1124 of 1963, in which the learned Judge has expressed an opinion that this point which was also raised therein is an important point of law requiring consideration by the Full Bench of this Court. But, as this point was not raised in the Courts below nor even in the grounds of revision, I am not inclined to allow learned Counsel to raise the same at this belated stage. It is a matter for consideration whether the decision of the Supreme Court would apply to a proceeding under the Rent control Act and not suit in ejectment and whether it would apply to a proceeding for eviction when it is not based upon default in the payment of arrears of rent but upon other grounds of eviction provided under the statute. The question as to how far the decision of the Supreme Court referred to earlier which turned upon the peculiar provisions of the Madhya Pradesh Rent Control Act would apply to a proceeding (not a suit) under the Rent control Act requires careful investigation, in the light of the view taken by the Supreme Court in R.M.Paranjype v. A.M.Mali, A.I.R. 1962 S.C. 753, and Gange Dutt Murarka v. Kartik Chandra Das, (1962) 2 S.C.J. 584: (1962 2 M.L.J. (S.C.) 161 : (1962) 2 An.W.R. (S.C.) 161. It is unnecessary to refer to this aspect of the matter in detail, as I am not allowing learned Counsel to raise that point in this revision petition. https://hcservices.ecourts.gov.in/hcservices/ The revision petition is dismissed. There shall be no order as to costs. The tenant shall have time to vacate till 10th October, 1965. If the tenant does not vacate and hand over possession to the landlord within the time mentioned, the landlord will be entitled to vacate the tenant by taking execution proceedings." 19. In the above judgment, this court held that even though there is no specific reference to the proviso to Sec.10(3)(c) of the Act, on a reading of the order of the Rent Controller, this court satisfied that the authorities below had the proviso in mind and only after being satisfied that the hardship that would be caused to the landlord would outweigh the hardship of the tenant, the claim of the landlord for eviction was upheld. 20. In AIR 1982 Mad. 126 cited supra, this court held as follows:– "5. There is the concurrent finding by the courts below that the landlord is in occupation of one of the shops and his requirement for additional accommodation for carrying on the iron and steel business is a bona fide requirement, and the hardship likely to be caused to the tenant will not outweigh the advantage which the landlord might obtain as a result of evicting the tenant. The concurrent finding, based on evidence that the landlord's requirement of the two shops for additional accommodation is a bona fide requirement is a finding which cannot be interfered with by this Court exercising jurisdiction under S.25 of the Tamil Nadu Buildings (Lease and Rent Control), Act 1960. As pointed by the Supreme Court in the decision reported in Sri Rajalakshmi Dyeing Works V. Rangaswami Chettiar, AIR 1980 SC 1253, despite the wide language employed in S.25 of the Act this court cannot interfere with the concurrent finding of fact that the requirement of the landlord for additional accommodation for carrying on his business, is a bona fide one. Accepting those concurrent findings, the claim of the landlord, the respondent in C.R.P.1993 of 1981 has to be upheld and the civil revision petition is liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel for the landlord, the petitioner in C.R.P. 785 of 1981, contended that the landlord is storing the goods in one of the shops already vacated by the tenant and as pointed out by this court in the decision reported in P.N.Raju Chettiar V. State of Tamil Nadu, 1970-1 Mad LJ 249:(AIR 1970 Mad. 306), carrying on a business consists of series of steps and even if one step is proved, the statutory requirement under S.10 (3) (a) (iii) is satisfied and as the evidence clearly establishes that the landlord is already storing articles in one of the shops in the ground floor vacated by the tenant, he is entitled to an order of eviction. In the instant case, the admitted facts are (1) the landlord is carrying on iron and steel business in a rented premises; (2) prior to the purchase by the petitioner, the first floor was used for the purpose of residence and the ground floor was used for the purpose of business and the petitioner putting the building to the same use, has already occupied the first floor for residential purposes and one of the shops in the ground floor for storing his articles. This Court in the decision reported in P.M.Kuppa Sah V. Rajaram Sah, (1979) 92 Mad LW 165 has pointed out that even if the landlord keeps his things in a portion of the premises and keeps it under his control, by locking it, it is legal possession satisfying the requirements of Sec.10 (3) of the Act. As the landlord is keeping his articles in one of the shops in the ground floor vacated by the tenant, he has already taken the first step for carrying on his business in the ground floor of the petition mentioned premises. As the landlord wants additional accommodation for the purpose of carrying on his iron and steel business and wants the tenants to be evicted from the remaining shops on the ground floor, the requirement of the landlord for additional accommodation is a bona fide one. The tenant may no doubt, be put to some inconvenience by being asked to vacate the premises in his occupation. That will not deprive the landlord of his bona fide right to require additional accommodation and viewed in this light, the https://hcservices.ecourts.gov.in/hcservices/ order of the Rent Controller ordering eviction of the tenant has to be upheld. The learned counsel for the respondent contended that the matter may be remanded back to the Rent Controller for finding out what is the extent of the rented premises in which the landlord is carrying on the iron and steel business and whether the requirement for additional accommodation by vacating the three tenants in occupation of the shops in the ground floor is a bona fide one. As the evidence on record has satisfactorily established that the requirement of the landlord for additional accommodation is a bona fide requirement, it is needless to remand the case to the Rent Controller for fresh consideration of the same issue. In the result C.R.P. 785 of 1981 filed by the landlord is allowed and C.R.P. 1993 of 1981 filed by the tenant stands dismissed. Parties to bear their own costs, Six months' time granted to the tenants to vacate the shops. 21. In the above judgment, this court held that High Court cannot interfere with the concurrent findings of fact that the requirement of the landlord for additional accommodation for carrying on his business is a bona fide one, despite the wide language employed in Sec.25 of the Act. This court further held that tenant's inconvenience will not deprive the landlord of his bona fide right to acquire additional accommodation. 22. In 100 L.W. 258 cited supra, this court held as follows:– "13. It is then contended that there is no evidence to show that the landlady was carrying on any business. On a review of the evidence, it appears that the appellate Authority had clearly misdirected himself when he allowed himself to be wholly influenced by the use of the word 'business'. It was never the claim of the landlady that she was carrying on any business on a large scale which would necessitate maintenance of any accounts or vouchers which could be produced in court. It is difficult to see what documentary evidence the Appellate Authority expected when facts showed that an old lady was carrying on some sort of activity of preparing pickles and condiments for selling to persons who are known to her-because that is her evidence. Though https://hcservices.ecourts.gov.in/hcservices/ strictly in economic terms, this might be called 'business' which is really an activity to raise some money and in a case where especially no employees are involved and where the so-called production is not of a large scale, it is difficult to see how the activity could be subjected to scrutiny on the basis of absence of vouchers or correspondence. It was not the case of the landlady that she was making bulk purchases of any raw material in respect of which any correspondence would be there. The finding recorded by the Appellate Authority is, in my view, clearly vitiated because of the erroneous approach to the question of the nature of the activity which the landlady was claiming to be carrying out. Her statement shows that she was doing business in home made curry powder, jam and pickles. she has also stated in cross- examination '...People known to me are purchasing from me. I am not issuing