Hotel De-Broadway, R... v. M/S. Snow White Indu...

1. The landlord who succeeded before the Rent Controller and failed before the Appellate Authority, is the petitioner. The petitioner is a registered firm and is a lessee of the building bearing Door No. 196, Broadway, Madras-1, from one K.T.M.S Ahmed. The said building consists of ground floor, first and second floors. The petitioner was running a lodging and boarding in the entire first and second floors with a restaurant on the ground floor. Due to some labour problems, the petitioner discontinued the running of the restaurant. Thereafter the first respondent took the southern portion of the ground floor of the premises on lease on a monthly rent of Rs. 725. It is the case of the petitioner that at the relevant time of leasing out the said portion, the petitioner was running a restaurant. The restaurant was closed due to labour problem. It is the case of the petitioner-landlord that there was a need to restart a restaurant in the premises to cater to the needs of the inmates of the lodging house and due to non-availability of the restaurant, the volume of business in the lodging house had decreased. To reopen the restaurant, the petitioner applied on 15.11.1982 to the Commissioner of Police to grant no objection certificate. But the Inspector of Police, Muthialpet, seems to have directed the petitioner to take action to vacate the tenants in occupation of the premises, to grant permission to start restaurant. So, on that basis it is stated that the petitioner is in dire need of the premises in the occupation of the tenant to start a restaurant. The petitioner/landlord sent a notice on 17.2.1983 to the tenant/first respondent requesting to vacate the premises. But the first respondent sent a reply rejecting the said request. Regarding the hardship, it is the case of the petitioner that the hardship to the tenant will not outweigh the advantage of the landlord, as the respondent/tenant is using the premises only for storing the goods, and the respondent can easily find out alternate and suitable premises elsewhere for storing the goods. It is stated that the respondent is having another godown at No. 2 Appu Maistry Street. On the basis of the abovesaid pleadings, the petitioner/landlord filed the petition in R.C.O.P No. 3857 of 1983 on the file of Small Causes Court, Madras under Sec. 10 (3) (c) of Act 18 of 1960 as amended by Act 23 of 1973.

2. The first respondent firm/tenant contested the petition by filing a counter affidavit. The other respondents who are partners, filed separate counter statements. According to the respondent Nos. 2 to 11 and 13 to 15, respondent Nos. 5, 6, 7 and 12 are not partners of the first respondent firm. The case of the respondents is that the landlord is in occupation of a large portion of the building and they can use a portion of it for the purpose of restaurant, if their claim is genuine. The respondents denied the averment regarding the need of the restaurant as stated by the petitioner/landlord. Regarding the hardship, the respondents have come forward with a case that the premises in question is the only place which is accessible to lorry traffic which the respondents have to use for transporting goods. It is the further case of the respondents that the petition under Sec. 10 (3) (c) is not maintainable as the petitioner/landlord is not in occupation of any portion in the ground floor which is a separate building.

3. The Rent Controller after appreciating the oral and documentary evidence found that the need of the landlord is only on the basis of bona fide intention, and regarding the hardship, the Rent Controller found that the hardship to the tenant will not out weigh the advantage of the landlord. On the basis of the said findings, the Rent Controller allowed the petition. Aggrieved against the same, the respondents filed appeal in R.C.A No. 392 of 1987 on the file of the Appellate Authority (City Civil Court, Madras). The Appellate Authority also after elaborately considering the issue in question found that the requirement of the landlord is a bona fide one .. But regarding the finding of the Rent Controller towards hardship, the Appellate Authority has found that the hardship to the tenant will outweigh the advantage of the landlord, and on that ground the Appellate Authority allowed the appeal. Aggrieved by the order of the Appellate Authority, the landlord has filed the above revision petition before this Court.

4. The learned counsel for the petitioner submitted that having concurred with the finding of the Rent Controller regarding the bona fide intention the Appellate Authority ought not to have set aside the order of eviction, while taking into consideration of the alleged inconvenience of the tenant. The learned counsel for the petitioner has brought to my notice that the petitioner was running a restaurant in the premises and he is compelled to start the restaurant again in the premises due to the circumstances stated in the petition and in the evidence, and unless the tenant is vacated and vacant possession is obtained, the petitioner cannot get no objection certificate and licence from the concerned authorities. It is not the case of the respondents that they cannot get alternative accommodation to store the goods, and the appellate authority has erroneously gave importance to that the said fact, though there is no such pleading in the counter, and therefore, according to the counsel for the petitioner, the finding of the Appellate Authority, merely on the basis of the convenience of the tenant to carry on their business, cannot be sustained in law.

5. The learned counsel for the respondents/tenants submitted that the finding regarding the bona fide intention of the landlord cannot be sustained in view of the inconsistency in the pleadings. In support of that contention, he relied on the averments contained in para 7 of the petition which is as follows:-

“Correspondingly, the volume of the business in the lodging house increased and the inmates are in dire need of a restaurant.”

But, in para 13 of the petition it is stated as follows:-

“Due to non-availability of the restaurant in the premises, the customers in the lodging house are getting reduced in the normal course.”

The learned counsel for the respondents further submitted that the landlord is having only an idea to start the restaurant, but has not taken any steps on that score and the idea of starting a restaurant cannot be a ground to test the bona fide intention of the landlord. The learned counsel for the respondents relied on Ex.P-8 series to contend that the said document cannot be relied on to prove the genuine requirement of the landlord. Regarding the hardship the learned counsel for the respondents has submitted that the landlord has not proved that the hardship of the tenant will not outweigh the advantage of the landlord. Mere intention to earn profit cannot be a ground to compare with the hardship of the tenant.

6. The point to be decided in this case is whether the intention of the landlord to start the restaurant in the premises in question is a bona fide one and whether the hardship which may be caused to the tenants by granting order of eviction will outweigh the advantage of the landlord.

7. The above R.C.O.P No. 3857 of 1983 has been filed by the landlord under Sec. 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is useful to refer Sec. 10 (3) (c) of the Act states as follows:-

“(c) A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.

(d) Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period.

(e) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application:

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.

Provided further that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate”

It is clear from the abovesaid provision of the Act that the Court has to consider (1) the bona fides of the claim of the landlord, and (2) it should be satisfied before rejecting an application that the hardship which may be caused to the tenant will outweigh the advantage of the landlord.

8. The petitioner/landlord filed two documents Exs.P-8 and P-10 and examined two witnesses to prove his bona fide intention. Ex.P-8 is a book in which the inmates of the lodge have written their suggestion to have the restaurant in the building itself. Ex.P-10 is a letter to the Police Department requesting' no objection' certificate to run the restaurant. For Ex.P-12, a reply from the Police Department was sent stating that only after getting vacant possession of the building in question, they would consider about the issue of ‘no objection’ certificate. In para 9 of the petition, it is stated that the petitioner is in dire need of the premises. It is the specific case of the petitioner that due to want of restaurant, the inmates of the lodge are not in a position to have their needs, and the petitioner is incurring loss in the lodging house. It is not denied that the petitioner-landlord was running the restaurant in the ground floor earlier and due to labour problem it was closed in 1967. The learned counsel for the respondent-tenant submitted that the finding of the authorities below regarding the bona fide intention of the landlord cannot be sustained in view of the inconsistent pleading in the petition itself. According to the respondent-tenant, in para 7 of the petition, it is stated that the volume of the business in the lodging house increased and the inmates are in dire need of a restaurant. But, on the contrary, the petitioner has stated in para 13 of the petition that for want of restaurant, the customers in the lodging house are getting reduced in the normal course. I am not in a position to accept this contention of the learned counsel for the respondent. We have to read the entire affidavit to understand the case of the petitioner, and not sentence by sentence. Even otherwise, I do not find any inconsistency in the contentions mentioned in para 7 and 13 of the petition filed by the petitioner/landlord. It is the case of the petitioner in para 7 of the petition that if the restaurant is started, the volume of the business will be increased. The same thing has been stated in para 13. To say that there is a lack of bona fide on the part of the landlord, the learned counsel for the respondents-tenants reiterated the arguments raised before the authorities below to the effect that, earlier a portion of the building was fell vacant, but the landlord did not take any steps to start the business. Both the authorities below have categorically found that to prove the abovesaid contention of the respondents/tenants, there is no evidence available on record. The next contention raised by the learned counsel for the respondents/tenants is that the petitioner/landlord has not come out with a specific case that the building is wanted due to the necessity of starting restaurant, and the landlord is asking the building only with an idea of starting the restaurant. The averments contained in paragraphs 7 and 9 of the petition filed by the landlord would clearly disprove such contention. Both the authorities after carefully considering the oral and documentary evidence elaborately, have come to a correct conclusion that the landlord requires the accommodation of the premises in question only on the basis of bona fide intention. I do not find any reason to interfere with the concurrent findings of both the authorities below, and so I sustain the findings of the authorities below that the requirement of the landlord of the premises in question is only with a bona fide intention.

9. With respect to the hardship, the trial court accepting the case of the landlord has found that the hardships which may be caused to the tenants will not outweigh the advantage to the landlord. But the Appellate Authority reversing that finding has held that the hardship which may be caused to the respondents, tenants will outweigh the advantage to landlord, and on that basis allowed the appeal. The learned counsel for the petitioner submitted that it is the case of the respondents-tenants that it will cause inconvenience to them, if the order of eviction is passed. It is the admitted fact that the respondents-tenants are having the industry in Thiruvotriyur High Road, and office in N.S.C Bose Road. But, the respondents-tenants are using the premises in question only as godown. They are also having another godown in Appu Maistry Street. To prove their hardship, it is the case of the respondents-tenants that lorries cannot have any access to the godown in Appu Maistry Street and therefore they cannot supply goods to their clients immediately. But, D.W 1 has deposed that lorries can have access to the godown situated in Appu Mainstry Street. According to D.W 1, it will create some trouble, to have access to the said godown. Mere inconvenience of the tenant cannot deprive the landlord of his bona fide right to have additional accommodation in the premises. In similar circumstances, this Court in the decision reported in P. Srinivasulu v. M/s. Shanthi Traders, A.I.R 1982 Mad. 126 held as follows:-

“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 order of the Rent Controller ordering eviction of the tenant has to be upheld”

10. The Appellate Authority had proceeded on the basis that it is very difficult to find out alternative accommodation to the tenants in that area. But the Appellate Authority has failed to appreciate that there was no such plea in the counter. Moreover, the problem of getting alternative accommodation cannot be taken as a relevant ground for rejecting the claim of the landlord. Once the landlords requirement regarding the portion of the premises in question in the occupation of the tenant for his additional accommodation, is bona fide the fact that the tenant cannot get an alternative accommodation alone, cannot be the basis to reject the landlord's claim.

11. The learned counsel for the respondents-tenants further submitted that the landlord wants to occupy the additional accommodation only to earn profit, and so the hardship of the tenants will outweigh the advantage of the landlord, as the respondents-tenants find it difficult to get alternative accommodation to carry on their business. As found earlier, such difficulty cannot be a ground to reject the bona fide requirement of the landlord. The respondents-tenants are having another godown in Appu Maistry Street. As deposed by D.W 1, lorries can have access to the godown situated in Appu Maistry Street, but with some difficulty. Therefore, the respondents-tenants can get another accommodation or can use the godown situated in Appu Maistry Street to continue their business. Since the respondents-tenants are having godown in Appu Maistry Street, it cannot be said that they have to close the business or it is very difficult for them to continue the business. The landlord has proved through evidence regarding the advantage of re-starting the restaurant and dire need of starting the same.

12. Moreover, it is not the object of the provisions of Sec. 10 (3) of the Act, to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales giving the benefit of a slight tilt in favour of the tenant. In a proper case where the hardship caused to the tenant would be considerable and advantage accruing to the landlord would be little or small, the application can be rejected.

13. From the evidence available on record, it cannot be said that the claim of the landlord is only to serve an oblique purpose. On the other hand, I have found that the intention is a bona fide one, accepting the concurrent findings of the authorities below.

14. The further submission of the learned counsel for the respondents-tenants is that the concurrent finding regarding the hardship cannot be interfered with under Sec. 25 of the Act. In support of his contention, the learned counsel for the respondents cited a decision reported in Murugesan v. Raj Mohammed, 1995 (1) M.L.J 84. Even in the said judgment, it is held that it is for the Court to consider whether it can interfere with the concurrent findings of the authorities in a given case. In the case on hand, the Appellate Authority has reversed the finding of the Rent Controller on the basis of the facts which are not mentioned in the pleadings, and also contrary to law. The findings of the Appellate Authority regarding hardship cannot be sustained for the above mentioned reasons.

15. In view of the above discussions, I find that the order of the Appellate Authority, dismissing the eviction petition, cannot be sustained, and it is liable to be set aside, and accordingly it is set aside.

16. In the result, this civil revision petition is allowed. There will be no order as to costs.

ALS\RV