1. This civil revision petition has been preferred by the tenant against the order of eviction dated 28.3.1988 in R.C.O.P No. 23 of 1984 confirmed by the Subordinate Judge, Mayiladuthurai, Thanjavur District in R.C.A No. 16 of 1989 dated 22.11.1990
2. The respondent herein filed the petition for eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. The case of the landlord is that he requires the building for the business of his son. The building in question is situated in Mayiladuthurai town, Pattamangala Street, Mayiladuthurai and is occupied by the petitioner herein on a monthly rent of Rs. 400. The son of the respondent herein is a partner in M/s. N.A Ali Traders, carrying on iron and steel business. The building is required for the business of his son. The respondent's son is not owning any building of his own at Mayiladuthurai. Notice was sent on 14.11.1983 and a reply containing false and baseless allegations was received.
3. The contention of the petitioner/tenant herein in the counter is that the eviction petition deserves to be dismissed, since it is the second one under Section 10(3)(a)(iii) of the Act, in view of Section 19 of the said Act, the petition has been filed only for the purpose of extracting higher rent. The rent was originally at Rs. 100 and subsequently raised to Rs. 400. R.C.O.P No. 7 of 1977 was filed under Section 10(3)(a)(iii) of the Act and it was dismissed. There is no bona fide in the claim of the respondent herein that his son requires the building for his business. He also contended that the previous tenancy expired on 30.9.1983 The respondent herein demanded Rs. 1,000 as rent and Rs. 10,000 as advance. Since the petitioner herein did not accept the same, the petition has been filed to evict him. The petitioner has been running the business for the past 30 years.
4. The rent controller considered the issue as to whether the claim of the respondent herein is bona fide. After considering Exs.P1 to P21 and R1 to R9 and the oral evidence of P.Ws.1 and 2 and R.W.1, he came to the conclusion that the claim of the respondent herein that the building was required for his son's occupation is bona fide and ordered eviction. On appeal by the petitioner herein, the appellate authority found that in view of the change in circumstances, namely, that the previous petition R.C.O.P No. 7 of 1977 was filed on the ground that the building was required for the landlord's business, and now for the requirement of his son, and therefore the petition for eviction was not hit by Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960. He also found that the requirement is bona fide and the petition is not for an oblique purpose, namely, for extracting higher rent. Since both the courts have concurred in ordering eviction of the tenant, the tenant/petitioner herein has preferred the above civil revision petition in this Court.
5. The learned counsel for the petitioner Mr. M.N Padmanabhan contended that the business carried on by the son of the respondent herein is not in Mayiladuthurai, but 3 K.M away from the respondent's residence. It is also contended that the petition is barred by Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act. He further contended that there was no bona fide. The courts below did not go into that vital question. He also contended that the respondent has not proved that his son is not owning other buildings in the town. On the other hand Mr. A.J Abdul Razak, learned counsel for the respondent contended that the claim for respondent's son's occupation is bona fide and the courts below have rejected the case of the petitioner herein that the R.C.O.P has been filed for extracting higher rent and that therefore there is no bona fide.
6. Now we shall consider the contentions of the counsel on both sides. As regards the contention that the business of the respondent's son is 3 K.M away from Mayiladuthurai, and he cannot claim a building situate at Mayiladuthurai for his business, he relied upon a decision reported in Madras Gillan Arbuthnot & Co. Ltd. v. Mrs. V.R Badrunnissa, 95 L.W 144. In the said case, the landlady's husband wanted to open an office at Madras. But he admitted that himself and his father were doing export and import business at Singapore from 1963 onwards and that they have not chosen to set up any office at Madras till then. Further, in that said case it was not proved that the landlady's husband was carrying on any business or made any arrangement to support the business at Madras. Only in the abovesaid circumstances, the landlady failed in the eviction petition. But in the present case, the landlord's son is carrying on business at Nidur. Further, in the petition we find that the petitioner's son Asarathali is carrying on business in paints, hardware etc. under the name and style of N.A Ali Traders at Nidur in a rented building. He was also a working partner in M/s. Abdul Latheef & Co., Iron, hardware and paint dealers at No. 2 Road, Mayiladuthurai. In the evidence of R.W.1, he has admitted that he has seen the business of the petitioner's son in person. His son was carrying on business at Nidur Panchayat under the name and style of N.A.M Traders. Further, the petitioner's son has given evidence as P.W.2 He has stated that he was carrying on business under the name and style of N.A Ali Traders during the past 5 years in Nidur. Since the said business is not profitable, he wanted to shift the business to Mayiladuthurai.
7. Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 is as follows:—
“In case it is any other non-residential building, if the landlord or any member of his family is not occupying for purpose of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.”
A reading of the said section shows that if the petitioner or his son is not occupying for the purpose of the business a non-residential building in the city, town or village concerned, a petition can be maintained for vacating a tenant from a non-residential building which is owned by the landlord. There is no restriction that the building required also must be situate in the same city, town or village. But the restriction is that the petitioner or his son should not be occupying the non-residential building for the purpose of the business which is his own. Hence the first contention is unsustainable.
8. As regards the argument based on Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, the said Section is not applicable to the present case, because, requirement in the present case is of the son. But in the earlier case, R.C.O.P No. 7 of 1977, the requirement was of the father. Secondly, the landlord was found to be owning a number of building and now the circumstances changed, and as per the family arrangement the petitioner was allotted only one building in Mayiladuthurai town. In Natarajan v. V.M Sundaram, 1990 (2) L. W 595 it has been held as follows:—
“The provisions contained in S. 19 of the act is clearly intended to bar frivolous application which may be made on the same grounds by the landlord for eviction against the tenant. In order to apply the provisions of S. 19 two important requisites must be present. One is that there must be identity of issues in the two proceedings and the other is that the former proceeding must have been decided on the very same issue which arises in the later proceedings”.
In Salam Sahib v. Lakshmi Ammal, 1976 T.L.N.J 478, Justice Ramanujam has held that in the earlier petition, the landlady required the premises for running her own business and for arrears of rent. But the subsequent petition was on a different ground. Hence Section 19 will not be a bar for maintaining the subsequent petition.
In A. Amirtharaj v. Dr. K. Inayath Ali, 1979 (2) M.L.J 324, Justice Ramaprasada Rao as he then was has held that the second application for eviction by the lady-doctor for the running of a clinic by her son was maintainable, even though the earlier petition filed by her for establishing her clinic was rejected. Following the decision in Salam Sahib v. Lakshmi Ammal, 1976 T.L.N.J 478, his Lordship has held that if the subsequent application is for a purpose different from that on which earlier petition was based, then, notwithstanding the dismissal of the earlier application, the second application is maintainable, even though Section 19 might apparently present an interdict in such case.
9. The next contention that the rent controller as well as the appellate authority did not consider the question of bona fide at all is also untenable. The rent controller has considered the case of the petitioner that the petition was filed only for an oblique motive, namely, extracting higher rent of Rs. 1,000. Even though the rent controller has stated that under Section 10(3)(a)(iii) of the Act, the landlord need not prove the bona fide, yet he considered the alleged oblique motive of the petitioner herein, namely, the demand for higher rent. The petitioner has admitted that though he was ready to pay Rs. 600 instead of Rs. 400 as rent the respondent refused to accept it. Further, he has also admitted that before filing the petition the landlord refused to receive the enhanced rent of Rs. 600 instead of Rs. 400 and considering that the rent controller found that even though higher rent was offered, the landlord did not accept it, since he required the building for his son's business. He has also held that the case of the petitioner that the petition was filed for extracting higher rent was not acceptable.
10. Similarly, the appellate authority also in para 12 of the order has categorically found that the requirement of the landlord is bona fide.
11. Mr. M.N Padmanabhan, learned counsel for the petitioner cited a number of authorities to show that apart from proving the ingredients mentioned under Section 10(3)(a)(iii) of the Act, the bona fide also must be proved. He cited a decision reported in Hameedia Hardware Stores v. Mohanlal Sowcar, A.I.R 1988 S C 1060, and contended that the landlord should establish that he bona fide requires the premises, in addition to prove the other ingredients referred to under Section 10(3)(a)(iii) of the Act. In the said case, the Supreme Court has held that the requirement must be bona fide, i.e, the need must be genuine. Here, in this case as already stated, the respondent's son is carrying on business at Nidur individually and at Mayiladuthurai in partnership with another. The respondent's son as P.W.2 has stated in his evidence that he started his business in 1983. This is also admitted by the petitioner herein, who was examined as R.W.1 The evidence of R.W.1, on this aspect is as follows:—
P.W.2 has also stated as follows:—
In the cross-examination the abovesaid statements are not challenged. Therefore, the need or requirement has also been proved in this case, as laid down by the Supreme Court, in the abovesaid decision. Another unreported decision of the Supreme Court cited by Mr. Padmanabhan, S.L.P(c)No. 19657 of 1994 dt. 24.2.95 is also not helpful to him because what is stated in the said case is that an application for eviction should not be allowed unless it was held that the premises was needed bona fide by the landlord.
12. Another contention raised by the learned counsel for the respondent is that the respondent has not established that his son was not owning any other non-residential building in Mayiladuthurai town. But the petitioner herein, as R.W.1 has admitted in the cross-examination that in Mayavaram there is no building in the name of the petitioner's son.
Therefore, there is no substance in the said contention also. The learned counsel for the petitioner Mr. Padmanabhan then contended that on the date of the petition, the son of the respondent herein was not carrying on business. He has stated that this fact has been admitted by P.W.1 He has referred to the statement of P.W.1 in the cross-examination. But I do not find any admission in the cross-examination of P.W.1 On the other hand he has stated that the business is from 1984. Further, he also contended that Exs.A12 to A17 are of the year 1987, i.e, after the filing of the petition, and therefore they could not be relied upon to find out whether the business was carried on by the son of the respondent herein. Similarly, Exs.A20 and A21 are also communications in 1987. Therefore they cannot be taken into account, since the courts below have relied upon these documents, and arrived at a finding, the finding deserves to be set aside. This is also unacceptable. These documents show that the business was carried on in 1987 also. The respondent himself as R.W.1 has admitted that the petitioner's son is carrying on business during the past 4 years. This admission is made by him in the cross-examination on 3.3.1988 When the respondent himself as R.W.1 has admitted the existence of the business from 1984, the aforesaid documents can be relied upon to show that the business is continued.
13. Even though the revisional powers of this Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 is not similar to Section 100 of the Civil Procedure Code, yet the revisional powers of the High Court are not wide enough to go into the question of fact in detail and assess the evidence. Unless the evidence proved to be false or incorrect this Court will not interfere with the finding of facts rendered concurrently by the rent controller as well as the appellate authority. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy, A.I.R 1980 S C 1253, the Supreme Court of India has laid down the principle in the following words with reference to Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960:—
“Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Sec. 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J, in Dattonpant Gopalvarao v. Vithalrao Marutirao, (1975) 2 SCC 246: AIR 1975 SC 1111 “it is not wide enough to make the High Court a second Court of first appeal”.
Therefore, I am not in a position to accept the contention of the learned counsel for the petitioner that the findings of the rent controller as confirmed by the appellate authority deserve any interference.
14. On a consideration of all the facts, circumstances, and the decisions cited by the counsel on both sides, I am of the view that the order of eviction should be upheld. Hence the civil revision petition is dismissed. However, there will be no order as to costs.
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