IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2010 CORAM: THE HON'BLE MR.JUSTICE M.M. SUNDRESH C.R.P (NPD) No.948 of 2003 and CMP No. of 9871 of 2003 1.South Eastern Bookings (Regd.) Rep. by its Partner K.Venkataraman 2.K.Venkataraman 3.Gopal 4.V.Natarajan .. Petitioners/Respondents/Tenant Vs. Haji V.K.M.Kuthubudeen Rep.by Power of Attorney Agent, Mr.C.Ganapathy, 214, Thambu Chetty Street, Chennai – 600 001 .. Respondent/Petitioner/Landlord PRAYER: The Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Control Act), Act 18 of 1960 as amended by Act 23 of 1973 against the judgment and decree passed in RCA No.103 of 1998, dated 30.04.2003, on the file of the VII Court of Small Causes at Madras, reversing the dismissal order of eviction petition dated 09.12.1997 passed in RCOP No.598 of 1996 on the file of the X Court of Small Causes at Madras. For Petitioners : Mr.P.B.Balaji For Respondent : Mr.R.Natarajan O R D E R The revision petition has been filed by the petitioners, being the tenants, challenging the judgment and decree rendered in RCA No.103 of 1998 wherein an order of eviction was passed by the lower appellate court on the ground of additional accommodation under Section 10(3)(c) of the Tamil Nadu Building (Lease and Control Act), Act 18 of 1960. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts of the case are as follows:- The respondent herein being the land lord executed the lease deed in favour of the petitioners on 16.01.1995 for a period of ten years. The respondent was residing in Singapore with his wife. The respondent was also doing business in the first floor of the petition mentioned premises in textile. There is an another business run by his wife doing export in textile. Machineries have been fixed in the first floor for doing the above said business. The petitioners themselves were dealing with the respondent in the said business by transporting the goods of the respondent. The petitioners were let out the ground portion for commercial purpose to do their business, whereas the respondent is having his business in the first floor. The Exhibits P1 to P3 are the power of attorney documents executed to maintain the petition mentioned premises and to file cases for the above said building. 3.A legal notice was issued in Ex.B.19 on 27.11.1995 by the respondent to the petitioners stating that in view of the expanding business of the respondent and his wife, the building is required for additional accommodation and therefore, the petitioners will have to vacate the premises. A reply was given to the respondent in Ex.P20 stating that there was no business done on the first floor and that the legal notice is not bonafide act and it is only an attempt to collect enhanced rent. Thereafter, the respondent filed an application under Section 10(3)(c) and 10(3)(a) of the Act 18 of 1960 seeking eviction on the ground of additional accommodation. 4.The Trial Court had dismissed the petition by holding that being a power agent PW1 cannot conduct the case on behalf of the respondent. It was further observed that the power itself is for evicting the tenant and to induct the new tenant and hence the same is not bonafide and in any case the power agent cannot depose regarding the matters, which the land lord alone is aware of. Being aggrieved against the same, the respondent preferred an appeal and the appellate authority has allowed the appeal by holding that the numerous documents filed by the respondent in Ex.P4-P30 would clearly establish the fact that the building is required for additional accommodation due to the expanding business. The appellate authority also found that the reasons assigned by the trial Court regarding the power of attorney executed by the respondent are not correct since the said power of attorney was executed in the year 1990-1992, whereas the legal notice and the consequential eviction petition was filed in the year 1995. Therefore, the lower appellate court was pleased to hold that it cannot be stated that there is no bonafide in the petition filed for eviction. Moreover, the eviction petition has been filed after the expiry of the lease. Challenging the said order of the eviction granted by the lower appellate court, the https://hcservices.ecourts.gov.in/hcservices/ petitioners, being the tenants, preferred the revision petition. 5.The learned counsel for the petitioners submitted that the very eviction petition itself is not maintainable in law, since the provision contained in Section 10(3)(a) is not applicable inasmuch as the respondent was having his business in the very same premises. Secondly, the learned counsel submitted that the power agent cannot be allowed to file eviction petition and continue the case, since he cannot depose about the matters, which only the respondent is entitled to do. In so far as the merits of the case is concerned, the learned counsel submitted that it is the evidence of PW1 himself that the respondent and his wife were living in Singapore and it is the further evidence of PW1 that he is living in the petition mentioned premises. Therefore, the learned counsel submitted that there is no bonafide in the petition for eviction. The learned counsel further submitted that in any case, the question of relative hard ship as required under Section 10(3)(e) has not been gone into by the appellate authority and therefore, in the absence of the same, the revision will have to be allowed by setting aside the order of the appellate authority and to remand the case for fresh consideration warranting the finding about the relative hard ship that may be caused to the petitioners in granting an order for eviction. 6.Learned counsel for the respondent submitted that based upon the evidence available in the form of documents the appellate authority has come to the conclusion about the bonafide. It is further submitted that even in the reply notice given under Ex.B20 and in the evidence of RW1, it has been specifically admitted about the running of the business in the petition mentioned premises. Further, inasmuch as the petitioners themselves are doing business with the respondent, it is not open to them to contend that there was no business being run in the said place and in any case the building is not required for expansion. The learned counsel further submitted that the bonafide can be inferred and the respondent herein has made out a clear case of bonafide and also the relative hard ship. According to the learned counsel for the respondent, the petitioners/tenants have not established the relative hard ship and even a perusal of the evidence would clearly shown that the petitioners/tenants have not given any evidence about the same. Therefore the learned counsel respondent sought for the dismissal of the revision petition. 7.It is a well settled principle of law that a non quoting of the correct provision of law will not result in the setting aside of the order passed on merits by competent court of law. In the present case on hand, the parties have understood each other case and advanced arguments based upon the same. Further, there is no dispute on facts. Therefore, this Court is of the opinion that mere non https://hcservices.ecourts.gov.in/hcservices/ quoting of the provision of law will not result the setting aside of the order passed by the appellate court. In so far as the initiation of the case based on Ex.PW1 to PW3 is concerned, the lower appellate court has given specific findings that Ex.P1 and P3 are executed much earlier to the legal notice under the eviction petition. Therefore, no malafides can be attributed against Ex.P1 to P3. It is also seen that the tenancy ended only on 15.01.1995 and therefore, the legal notice was given under Ex.19 followed by filing of the eviction petition. Hence, it cannot be considered that the execution of Ex.P1 to P3 were only meant for evicting the petitioner. It is a settled proportion of law that the document will have to be considered as a whole in order to understand the intention behind the execution. Hence, the contention of the learned counsel for the petitioner Mr.P.B.Balaji on the question of maintainability of the petition for eviction cannot be countenanced. 8.Coming to the merits of the case the lower appellate court has relied upon Ex.P4 to P30 for coming to the conclusion that the respondent doing business and his wife was also doing business in textiles. The above said documents would show that the respondent was doing a flourishing and expanding business in the field of textile. Apart from the same, sewing machines have also been fixed for complying with the export obligation. The purchase orders, booking bills, payment receipts and account bills, bank transactions and income tax receipts have been furnished by the respondent to substantiate his case about the on going business. Therefore, based upon the same a finding of fact has been rendered by the Court below about the bonafide necessity for expanding the business. Apart from the same, there was no serious dispute raised by the petitioners in their reply notice about the nature of business conducted by the respondent. Further, even in their evidence the petitioners have accepted the business of the respondent and in fact, it was specifically admitted that they were also dealing with the respondent by transporting the goods of the respondent. Therefore, the Court below has correctly came to the conclusion about the bonafide of the respondent. The said finding being the finding of fact arrived based upon the consideration of the entire evidence, this court is of the opinion that the same cannot be found fault with. Similarly, the Court below has decided the bonafide based upon the documents and not upon the oral evidence of PW1 and therefore, the contention of the learned counsel for the petitioners that PW1 cannot act as land lord and depose, cannot be countenanced. 9.In so far as the other contention raised by the learned counsel for the petitioners that the provision under Section 10(3)(e) has not been complied with is concerned, the said contention also cannot be countenanced. It is the specific case of the petitioners that the petition mentioned premises is required for expansion and https://hcservices.ecourts.gov.in/hcservices/ his bonafied needs will over-whelm, the relative hard ship that might be caused to the petitioners. The petitioners in their reply notice have not made any mention about the need of the respondent for additional accommodation. When a specific pleading is raised about the relative hard ship by the land lord, a duty is equally caused upon the tenant to substantiate his case regarding the relative hard ship. 10.In the present case on hand the evidence of PW1 would clearly show that the petition mentioned premises is only one of the branches of the petitioners. The main office is situated in some other place and there are other branches as well. The documentary evidence produced by the respondent about the necessity to have the petition mentioned premises for expanding the business would clearly show that the provision contended under Section 10(3)(e) has been duly complied with. 11.Learned counsel for the petitioners has relied upon the judgement of Apex Court reported in AIR 1999 Supreme Court 3041 (J.Jermons Vs. Aliammal and others), 2000 (2) MLJ 196 (Ameena Beebi @ Jamurthu Begum Vs. P.M.Khaja Mohideen and 2006 (3) MLJ 360 (Chellammal Vs. Krishnaveni Ammal) in support of his contention that a duty has been cast upon the Rent Controller to decide the relative hard ship between the parties. It is no doubt true that the Court will have to decide the relative hard ship when an application is filed by the land lord seeking a portion of the building in which he is doing business and the tenant is also doing his own business. However, in the present case on hand, the evidence produced by the parties would clearly show that the bonafide nead of the respondent will over-whelm the hard ship that will be caused to the petitioner. In the judgment reported in 2007 (3) LW 61 (M/s.Rasi Silks and another Vs. T.A.Venkatachalam & 0thers) this Court has held that when the land lord has given evidence and proved the bonafide, it is for the tenant to substantiate his case regarding relative hard ship. Therefore, on consideration of the above said legal decision, this Court is of the opinion that the available documentary evidence, read with the evidence of RW1 himself, would clearly establish the fact that the bonafide needs pf the respondent will over-whelm the hard ship of the petitioner while ordering eviction. Hence, on consideration of the above said facts, this Court is of the consider view that there is no ground made out to interfere with the order passed in RCA .103 of 1998 on the file of the VII Small Caused Court, Chennai. 12.Learned counsel for the petitioners sought for time for handing over the possession. The learned counsel for the respondent submitted that a period of six months may be given. Considering the https://hcservices.ecourts.gov.in/hcservices/ above said submissions, the petitioner is given six months time from the date of receipt of the copy of the order to hand over the vacant possession subject to the condition the petitioner shall pay the admitted rent regularly and also filing an affidavit stating that he would undertake to vacate the premises within the period of six months from the date of the receipt of a copy of the order and continue to pay the rent regularly to the respondent/landlord, before this Court within a period of 15 days from the date of receipt of a copy of this order. 13.With the above observations, this revision petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ssp To 1. The VII Small Causes Court, Chennai. 2. The X Small Causes Court, Chennai. 3. The Section Officer, V.R.Section, High Court, Madras. + 2 CC to Mr.R.Natarajan,Advocate,SR.12253 + 1 CC to Mr.P.B.Ramanujam,Advocate,SR.12437 C.R.P (NPD) No.948 of 2003 and CMP No. of 9871 of 2003 KSK(CO) EM/30.4.10 https://hcservices.ecourts.gov.in/hcservices/