IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).Nos.1095 to 1097 of 2004 N.Jagadeesan ... Petitioner in all CRPs Vs. K.Selvam ... Respondent in CRP.1095/2004 M.Srinivasan ... Respondent in CRP.1096/2004 S.Sivanesan ... Respondent in CRP.1097/2004 Prayers: Petitions filed under Section 25 of T.N Act 18/60 and amended by Act 23 of 1973 against the Decree and Judgment passed in R.C.A.Nos.189, 191 and 190 of 2003 dated 13.02.2004 on the file of VIII Judge Small Cause Court, Chennai confirming the Judgment and decree passed in R.C.O.P.Nos.1156, 1158 and 1157 of 2001 dated 22.11.2002 on the file of XVI Judge, Court of Small Causes, Chennai. For Petitioner : Mr.G.Kathirvelu For Respondents : Miss.R.T.Syamala ORDER The revision petitioner in C.R.P.Nos.1095 to 1097 of 2004 is the landlord who filed the petitions R.C.O.P.Nos.1156, 1158 and 1157 of 2001 on the file of XVI Judge, Court of Small Causes, Chennai against the respondents/tenants under Section 10(3)(a)(iii) and 10(3)(c) of TN Buildings (Lease and Rent Control) Act, 1960. 2.The learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai has passed orders in R.C.O.P.Nos.1156, 1158 and 1157 of 2001 on 22.11.2002 dismissing the petitions filed by the revision petitioner/landlord with costs. 3.The revision petitioner/landlord has filed R.C.A.Nos.189, 191 and 190 of 2003 before the learned Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai as against the orders passed in R.C.O.P.Nos.1156, 1158 and 1157 of 2001 by the learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai and the learned Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai has https://hcservices.ecourts.gov.in/hcservices/ dismissed the aforesaid three R.C.As without costs, confirming the orders passed by the learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai. 4.Aggrieved against the orders passed by the learned Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai in R.C.A.Nos.189, 191, 190 of 2003 dated 13.02.2004, the landlord/petitioner has filed these three revisions viz., C.R.P.Nos.1095 to 1097 of 2004 before this Court. C.R.P.No.1095 of 2004:- 5.According to the learned counsel for the revision petitioner/landlord/petitioner, both the learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai and the Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai ought to have seen that the RCOP petition has been filed for the eviction of the contiguous shops No.3 to 6 in ground floor of the premises No.20, Gajapathylala Street, Triplicane, Chennai occupied by the respondent and other tenants for the purpose of carrying on business by the second son of the revision petitioner/landlord and that the revision petitioner/landlord's son is working temporarily as Khalasi in Railways and that his son does not wish to continue in the job, which has no prospects and that he has experience in dealing with the electrical goods because of his employment in Electrical Department and that his son will resign the job on the respondent vacating the portion and carry on the business and this fact was not taken note of by both the authorities and that the revision petitioner/landlord who worked in the Electrical Department as Shop Superintendent will be assisting his son in carrying on the business and thus the revision petitioner requires the petition premises bonafide. It is the further stand of the revision petitioner/landlord/petitioner is that the authorities below have ignored the P.W.1's evidence in regard to the preparation for doing a business and very fact that the revision petitioner/landlord's son is ready to resign his temporary job and commence business itself, is a first step taken in the right direction to carry on the business. 6.Advancing arguments, the learned counsel for the revision petitioner submits that the authorities below ought to have seen that the shops No.1, 2 and 7 are not vacant in the real sense and that the said shops are very small one compared to other shops and that they are not contiguous and further that the respondent/tenant cannot dictate terms to the landlord and it is for the revision petitioner/landlord / petitioner to select which portion will be convenient for his occupation. 7.The revision petitioner/landlord/petitioner in the petition R.C.O.P.No.1156 of 2001 has inter alia specifically averred that he has two sons J.Hariharan and J.Kirupakaran, both of them married and living with him and that his second son, Kriupakaran got married in the year https://hcservices.ecourts.gov.in/hcservices/ 2000 and presently working as semiskilled in the Electrical Department of the Southern Railway Perambur Works and that his salary is very meagre and on marriage he is desirous of starting an electrical business for chalking out a better career and in pursuance of which he expressed his wish that the ground floor shops No.3 to 6 could be secured for doing his own business etc. 8.The revision petitioner/landlord in his RCOP petition No.1156 of 2001 in para 6 has categorically stated that his second son would relinquish the Government employment when he sets up his own business and that even on the ground of additional accommodation for establishing of a business for his second son Kirupakaran, no hardship will be caused to the respondent and that the balance of convenience is in favour of the revision petitioner. In short, the civil revision petitioner has prayed for an order of eviction against the respondent/tenant on the ground of revision petitioner's bonafide requirement for the purpose of establishing the business of the second son Kirupakaran under Section 10 (3)(a)(iii) of the TN Buildings (Lease and Rent Control) Act, 1960 or in the alternative as additional accommodation under Section 10(3)(c) of the Act in respect of shop No.4 and 5 of the petition premises. 9.The learned counsel for the revision petitioner contends that the very fact that the revision petitioner has stated that his second son is ready to resign his temporary job and start the business, which is a first step in the right direction to carry on the business and the second step is that the undertaking given by the revision petitioner that his second son is willing to resign his Khalasi temporary job, which will go to show the bonafide requirement to carry on the business and in support of this proposition he relied on the decision 1997-2- L.W.607 Thirunavukkarasu V. Vasantha Ammal, wherein it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Ss. 10(3)(iii)(b) and 25 – Requirement by landlady for her son to set up a clinic after his completing in six months time, the Medical Course – Need has already arisen and tenant cannot plead and insist that she should wait till her son finishes the course and then only file a petition. "Carrying on business", measuring of – If a step is taken with intent to do actual business in future, that will mean "carrying on business" and will be sufficient compliance of the Section – If such step is taken in contemplation of future need, it will tantamount to "carrying on business". Factum of bonafide need can be proved in any manner known to law – Not necessary that son alone should come and give evidence – Landlady's deposition is sufficient. https://hcservices.ecourts.gov.in/hcservices/ Rights of parties having to be decided as on date of petition will not prohibit landlady from taking into consideration the requirement which she is likely to face in the near future". 10.He relied on the decision 2001-2-L.W.-532 Subbiah Pandian V. C.Balasundaram, wherein it is observed as follows: "Tamil Nadu Buildings (Lease and Rent) Control Act (18 of 1960), S.10(3)(iii) – bonafide requirement for the landlord's brother who is unemployed for starting a betel nut shop, petty business which does not require elaborate arrangement being made – Finding of two authorities directing eviction not to be interfered in revision'. 11.The contention of the respondent/tenant is that the petition premises comprises of seven shops in the ground floor of which only shop No. 4 and 5 are in occupation of the respondent/tenant and shop No.6 was rent out to Srinivasan for running a Cycle Shop, and shop No.3 is let out to Sivanesan for Gas Welding and Painting and the Shop No.1, 2 and 7 are kept vacant and it is now under lock and key of the revision petitioner and if really the revision petitioner is in requirement of the shops for establishing the business of his second son, he can very well utilise these three shops even without vacating the tenant and if the respondent/tenant is asked to vacate, he will be put to severe hardship and his coconut business running for the last 25 years will be affected, since he has customers in and around the area and distributing tender coconuts in Triplicane, Mylapore and Royapettah areas. 12.It is also the plea of the respondent/tenant that the petition filed under Section 10(3)(a)(iii) of the Act as well as under Section 10 (3)(c) cannot be clubbed together in law, since the same is not maintainable and on this technicality the petition deserves to be dismissed. 13.The learned counsel for the respondent/tenant cited the decision 2004 (1) CTC 94 Bata India Limited V. M.R.Manickam, whereunder it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(3)(a)(iii) – Owners occupation – Ingredients of – Ingredient necessary to maintain petition for eviction on ground of owners occupation are (a) building should be non- residential in character (b)landlord should be carrying on business on date of application for eviction (c)landlord should not be occupying any building belonging to him and (d) claim should be bonafide and not found to be indirect or false attempt to evict tenant to obtain more rent or to harass tenant.(para 7) https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Buildings (Lease and Rent Control), Act 1960, Section 10(3)(a)(iii) – Landlord found to be in occupation of his own building in same town carried on business – Landlord found to be partner in firm which carried on business in aforesaid premises – Landlord shall be deemed to be in possession of his own premises for non-residential purposes – Petition for eviction cannot be sustained. (Para 17) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(3)(a)(iii) – bonafide requirement – Landlord carrying on business in partnership occupying non-residential building in same town – Landlord admitted such fact in evidence but omitted to state so in his petition for eviction – Requirement of landlord is not bonafide". 14.Yet another decision 2002 (1) CTC 631 Irene V. V.S.Venkataraman and another, is relied on the side of respondent/tenant whereby it is laid down as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(2)(ii)(a) and (b) and 10(3)(c) – Eviction sought by Trust on ground of unauthorised sub-letting, change of user and requirement of landlord for additional accommodation – First floor of premises is in occupation of landlord – Ground floor is in occupation of tenant who is a foreigner – While tenant goes out of country, tenanted premises is under the care of representative of tenant, a care-taker, driver and watchman who occupy premises during absence of tenant from the country – Rent Controller and Appellate Authority held that premises in occupation of employees tenant to look after tenancy premises when tenant is away in foreign country do not amount to sub-letting – Authorities also negative the plea of landlord regarding change of user since premises was used only for residential purposes – Requirement on ground of additional accommodation was held against landlord as premises in occupation of landlord was not proved or be inadequate insufficient for requirement of landlord – Concurrent findings of Rent Controller and Appellate Authority were set aside by High Court in revision and order of eviction was passed against tenant – On appeal held that High Court was wrong in holding that occupation of tenanted premises by servants of tenant when tenant was away in foreign country amounted to sub-letting – Such occupation does not amount to sub-letting – High Court was wrong in shifting the burden of proof regarding change of user on to tenant – High Court without adverting to requirement of landlord for additional accommodation recorded a finding of comparative hardship in favour of landlord – Approach of High Court was causal and cursory – High Court re- appreciated evidence in revision – Approach adopted by High https://hcservices.ecourts.gov.in/hcservices/ Court is perverse as no such findings could be arrived at in reversal of concurrent findings of authorities – Power of High Court in revision under Rent Control Act is not as wide as power of appellate court". 15.The learned counsel for the respondent/tenant pressed into service the decision 2004 (1) CTC 668 Kathan V. Scaw Manak Chand Shohaji, wherein it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Section 10(3)(a)(iii) – Eviction on the ground of owner's occupation – Requirement of landlord for his own occupation – Mere desire is not equivalent to requirement – Requirement implies greater urgency and need – Landlord has to prove that he has no other premises in his occupation in same city, town or village – Landlord had not even pleaded that he is not in occupation of residential building of his own – Basic requirement of section not satisfied – Dismissal of Eviction Petition confirmed in revision". 16.Ex.P.1 is the letter of the respondent/tenant addressed to the revision petitioner/landlord/petitioner wherein he has mentioned that his father P.Kalidas expired on 04.07.2001 and that his father was running tender coconut business in the two shops occupied by him on rent in premises No.20 Gajapathilala Street and after his death, he is managing the said shops and that he will hand over the two said shops during March 2002 to the landlord. 17.In 1998-2-L.W. Page 89 at 90 Mohammod Alias Bawa Sahib and another V. B.Vimalchand, it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control), Act (18 of 1960), S.10(3)(iii)(a)-Major share of the property belonging to the joint family – Application for eviction on the ground of requirement for owner's occupation – Mere desire on the part of the landlord is not enough – Landlord has to prove more than desire". 18.In 1994-2-L.W.152 A.Sankaran and another V. S.K.Balasundaram and another, it is observed as follows: "Madras Buildings (Lease and Rent Control) Act (18 of 1960), S.10(2)(i), 10(3)(a)(iii) and (e) – Landlord manipulating circumstances in order to evict tenant – No urgent need – Mere desire to use or occupy premises not enough – bonafide need for own use and occupation should be proved – Need should be genuine". 19.In (2003) 1 M.L.J. Page 225 at 226 Kannika V. Krishnasamy, it is laid down as follows: "(D) Pondicherry Buildings (Lease and Rent Control) Act (V of 1969), Sec. 10(3)(a)(iii) – The landlord and his son are https://hcservices.ecourts.gov.in/hcservices/ already in occupation of a shop of their own – The landlord has no right to seek eviction on the ground of own and occupation". 20.In (2003) 2 M.L.J.627 at 628 T.Soundarapandian V. G.Rathinam, it is observed as follows: "(B)Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960 as amended by Act XXIII of 1973 and I of 1980), Sec. 10(3)(a)(iii) – Requirement for own use and occupation – Necessary ingredients – Landlord has admitted that other shops are also vacant – But has not occupied them – Landlord has not stated that the vacant shops are not suitable – Landlord lacks bonafide – Eviction cannot be ordered". 21.In 1998 (2) M.L.J. 50 at 51 A.Perumal and others V. P.Mohammed Sarbuddeen, it is observed as follows: "Tamil Nadu Buildings Lease and Rent Control Act (XVIII of 1960), Sec. 10(3)(a)(iii) – Landlord putting tenant on notice to vacate for the purpose of carrying on business – Failing to mention in notice as well as in eviction petition that he is already carrying on business and needs premises for that purpose – Landlord however stating in evidence that he is carrying on business and needs premises for that purpose – Proving by means of oral and documentary evidence that he is in business – Orders of court below evicting tenant confirmed". 22.In 2000 T.L.N.J. 347 K.V.C.Pandithurai V. Samrath Bibi (Died) and Others, it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended S.10(3)(a)(iii) – bonafide requirement – Landlord files petition after petition- Requirement for son- prior to and pending proceedings other buildings owned by landlord become vacant and let out to others – No explanation for not occupying them – Petition lacks bonafides - Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended S 25 – Decision based on the evidence – available evidence not taken note of – Power of Revisional court to set aside the order – made out - Tamil Nadu Buildings (Lease and Rent Control) Act 1960 as amended S.19 – Requirement for one son was sought – Petition dismissed – Requirement for another son – Not hit by S.19 – Every limb of controversy should have been raised in the earlier petition to attract Sec.19 bar under S. 19". 23.In (1974) 2 SCC at page 365 at 366 Mattulal V. Radhe Lal, it is observed as follows: "(iii)The mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his https://hcservices.ecourts.gov.in/hcservices/ own business is not decisive. It is for the court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bonafide. The word "required" signifies that mere desire on the part of the landlord is not enough but there should be an element of need, and the landlord must show – the burden being upon him – that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business". 24.P.W.1-Jagadeesan (landlord), in his evidence has deposed that the respondent/tenant occupying two shops in the petition mentioned premises and the monthly rent for the two shops is Rs.700/- in all and that the respondent's father was a tenant under him for 10 years and the monthly rent for the one shop is Rs.350/- and that respondent is doing business in tender coconuts and that his second son Kirupakaran is employed in Railways as Khalasi and the petition property is required for doing electrical business and since his second son is doing the temporary job, there are no chances for getting promotion and after the death of the respondent's father, the respondent came to him and asked for time to vacate the portion occupied by him and the said letter written by the respondent is Ex.P.1 and the rent receipt is Ex.P.2. 25.The specific case of the revision petitioner/ landlord/petitioner is that for starting an electrical business for his son the portion occupied by the respondent is required bonafide and that the petition property is also required for additional accommodation and if his son leaves the Khalasi job and start doing electrical business, then he will get good income. 26.It is the evidence of the P.W.1, the landlord that at the time of filing of the present petition three shops were vacant and that no attempts were made to do business in the said vacant shops and since those vacant shops were not in same row, no business was started. 27.R.W.1-Selvam (respondent/tenant), has deposed that he is doing wholesale business in tender coconuts and that this business is conducted from the days of his father for 25 years and that his father expired on 04.07.2001 and in the petition premises there are totally seven shops and three shops are vacant and two other shops are let out for rent. 28.R.W.1, the respondent/tenant in his cross examination has categorically stated that three shops are kept locked by the revision petitioner/landlord and one shop is kept locked for 5 years and another https://hcservices.ecourts.gov.in/hcservices/ two shops are kept locked for 3 years and in another place he has deposed that the locked shops are kept locked for 10, 15 years. 29.The revision petitioner/landlord/petitioner has filed the RCOP petition No.1156 of 2001 under Section 10(3)(a)(iii) and 10(3)(c) of the Act, 18 of 1960. However, the revision petitioner/landlord/petitioner in the prayer portion of the petition has mentioned Section 10(3)(a)(iii) of the Act or Section 10(3)(c). The respondent/tenant in the counter has taken a plea that the RCOP petition filed under Section 10(3)(a) (iii) of the Act as well as under Section 10(3)(c) is not at all maintainable in law and both the Sections cannot be clubbed together and order of eviction cannot be prayed for and on this technical aspect the petition is to be dismissed. 30.It is to be pointed out that Section 10(3)(a)(iii) concerns with the whole building in occupation of a tenant which is distinct and separate from the non-residential building in the occupation of the landlord. Whereas as per Section 10(3)(c) is concerned both the landlord and the tenant are in the same building and the landlord requires it for additional accommodation thereby seeking eviction. 31.It cannot be gainsaid that Section 10(3)(c) will not govern Section 10(3)(a)(iii). As a matter of fact, the landlord should be in occupation if he invokes Section 10(3)(c) for additional accommodation. In fact, the scope of Section 10(3)(a)(iii) is different from that of Section 10(3)(c). Each Section will come into operative play under different situations. 32.As long as the ingredients of Section 10(3)(c) are satisfied the landlord is entitled to evict the tenant whether he is occupying the premises for residential or non-residential premises. Moreover, the occupation of landlord and tenant in one structure is visualised as per Section 10(3)(c). It is not out of place to point out that Section 10(3) (c) will apply only in case where the landlord is occupying a building which is his own. As per Section 10(3)(c) an exception is carved out in a case where the landlord is occupying a portion of the building, which is also occupied by the tenant in another portion. 33.In 1991 L.W. Page 277 Bengal Trading Company V. G.M.Natarajan, it is observed that 'even if a room is occupied by the landlord, kept under lock and key it is deemed that the landlord is in occupation of a portion of the building'. 34.At this juncture, it is pertinent to point out that the expression 'not withstanding contained in clause (a)' indicates that a landlord can claim possession of a building which is in the occupation of a tenant, if he requires it for his own occupation either for his residential or non-residential purpose depending on the nature of the building. Under Section 10(3)(c) if it is a non-residential building, https://hcservices.ecourts.gov.in/hcservices/ the landlord can obtain additional accommodation only for the purpose of his business which he is carrying on as per decision 1980 TLNJ page 145 at 154 Tirupathi Nadar V. Kantha Rao. 35.In C.R.P.No.2436 of 1995 order dated 30.07.1999 S.Mohammed Iqubal V. M.Padmanabhan at para 8, it is inter alia observed that 'The argument of the learned senior counsel for the petitioners that the petition under Section 10(3)(a)(iii) of the Act is not maintainable and only a petition under Section 10(3)(c) of the Act is maintainable, as the landlord is in occupation of a portion of the very same premises' does not appear to be correct, in view of the judgment of the Hon'ble Supreme Court of India V. Radhakrishnan V. S.N. Loganatha Mudaliar, MANU/SC/0499/1998 referred to above. Even if this argument is correct, yet I am of the opinion that the order of the authorities below cannot be interfered with for more than one reason. Mere quoting a wrong provision of law cannot be a ground to deny the relief to the landlord, if the materials otherwise available