The Revision Petition is filed by the tenant in R.C.O.P No. 14 of 1989, on the file of Rent Controller, Tiruvannamalai.
2. The main ground on which eviction is sought by the landlady is that her son requires the schedule building for his occupation. It is her case that her son who has studied M.B.B.S is in dire need of non-residential building for running a clinic, and either she or her son does not own any other non-residential building, for the said purpose. It is said that various demands were made to the petitioner/tenant to vacate the premises, and at last a notice was issued on 27.2.1989, for which a reply was sent on 17.3.1989, refusing to hand over possession, and at the same, time, taking untenable contentions. On the above grounds, eviction petition was filed by the landlady.
3. In the counter-statement filed by the tenant, bona fide requirement for the son is denied. It is said that even before and after notice, other buildings became vacant, and if the Landlady had any intention to occupy any building for her son, she could have occupied one such building. He further said that landlady's son is only studying for M.B.B.S and he is not doing any profession. He prayed for dismissal of the petition.
4. The Rent Controller after examining the entire evidence, came to the conclusion that the claim of the landlady is bona fide. He further found that the son has no other building of his own, and that at the time when the landlady was adducing evidence, the son had to complete six months' education, for finishing M.B.B.S course, and that will not stand in the way of the landlady getting possession of the building. Rent Controller further held that the completion of M.B.B.S course itself is a step to ‘carry on business’ and, therefore, there is no disqualification on the part of the landlady to get possession of a non-residential premises. The claim was also found to be bona fide.
5. The aggrieved tenant, took up the matter in appeal. The Appellate Authority also did not find any reason to differ from the finding of the Rent Controller, and consequently dismissed the Appeal.
6. It is against the concurrent findings of the Authorities below, this Revision is filed.
7. All the contentions that were raised before the Authorities below were urged before this Court also. How far those contentions could be sustained is a matter to be decided in this Revision. Further, when both the Authorities below have entered a definite finding that the claim of the landlady is bona fide, it is for the tenant to substantiate his case that the findings of the Authorities below are in any way improper, irregular or illegal. At the same time, this Court is not entitled to reconsider the evidence as a Second Court of First Appeal. For the purpose of arriving at a different finding, the evidence should not be re-appreciated, and, for that reason, the decisions of the Authorities below should not be upset. With these limitations in the power of this Court, I have to consider whether, the findings of the Authorities below are in any way wrong.
8. Learned counsel for the petitioner first submitted that the rights of parties will have to be decided as on the date of petition.
9. It is said that on the date of petition, petitioner's (landlady's) son was only a student and, therefore, a claim of present need cannot be found. Learned counsel also submitted that the words used in the Section are regarding present requirement, giving emphasis to the words ‘carrying on business’. If importance is to be given to those words, according to learned counsel, a future prospect of completing M.B.B.S and thereafter running a clinic is not a matter to be considered.
10. I do not agree with the said submission of the learned counsel for the petitioner. It is true, under ordinary circumstances, decision will have to be arrived at as on the date of institution of the proceedings. But that does not prohibit the landlady from taking into consideration the requirements which she is likely to face in the near future.
11. In this connection learned counsel on both sides did not bring to my notice any decision of this Court on this point. Therefore, I have to rely on two decisions of the Kerala High Court. They are: (1) 1970 (2) ILR Kerala 101 (Madhavan v. Ramachandran) and (2) 1984 Kerala Law Times 290 (Secretary, Thevara Coop. Consumer Stores Ltd., v. Jose).
12. In the first decision by V.R Krishna Iyer, J., as he then was, eviction petition was filed on the ground that the landlord is likely to be transferred from one place to another and, therefore, expecting a transfer, he sought eviction. In fact, in the course of proceeding, he was also transferred. An argument was taken before Court that the future need should not have been taken into consideration. The relevant portion of the decision reads thus:—
“……respondent's counsel has argued that, since on the date of the institution of the petition the landlord was a teacher in Perinthalmanna and not at Pathirippala, he had set up only a future and not a present need in his eviction petition and this was fatal. I must point out that the concept of need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. The petitioner has really been transferred to Pathirippala, even as he had alleged in his petition. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide need, if courts insist on landlords proving a present need as against a prospective but certain need. Else, when the need confronts him, the building will be years away from him. Proceedings in Court should not become tantalising tricks. ………………….” Emphasis Supplied.
13. In the second decision, namely 1984 KLT 290 (supra), it was held thus:—
“No person, even when he is a landlord could be found fault with for ordaining his affairs in a proper or planned manner. Planning is, in a sense, a part of regulated modern life. It is, therefore, unjust to suggest that the landlord could seek eviction of a building, for him to live with his spouse, only after undergoing the marriage nuptials. He is justifiably entitled to foresee things and plan his life. The Tribunals or Court would not sit in judgment over his honest or bona fide decision in that regard. Additional accommodation arising out of a marriage connection should therefore receive due “recognition. It is not reasonable to insist that such a landlord should undergo the marriage ceremony and thereafter fight a litigation for eviction of the building for over a decade.,……”
(Emphasis Supplied.)
14. In this case, at the time when the Eviction Petition was filed, the landlady's son had to complete only six months more to finish his MBBS course. Immediately thereafter he becomes a qualified Medical Practitioner. To insist that the landlady should file the petition only after her son becomes a Doctor, would mean to say that till the building is obtained delivery of after the long legal process, the landlady's son should not start a clinic and serve the humanity., The landlady wanted her son to be provided with a shelter so that his life would be secure. It is her bona fide intention that her dependent son should be provided with the building in question. The need has already arisen, and the tenant cannot insist that the landlady should wait till her son finishes the M.B.B.S Course, and thereafter file a petition for eviction and prove bona fide. If that be the case, by the time the building is obtained, the need will cease to exist. Even under our Statute, the words used are, ‘carrying on business’. Originally there was a doubt whether medical profession is a business. But that doubt no longer subsists in view of a very recent decision of the Supreme Court reported in 1995 Supp. (3) SCC 190 (Dr. Dr. Jess Raphael v. K.L Regina Joseph (Mrs).). In that judgment, their Lordships overruled and reversed a decision of the Kerala High Court, and held that running a nursing home is not a business, but a profession and service to the humanity. While reversing the judgment of the Kerala High Court, their Lordships took note of the earlier decision of the same Court reported in (1979) 2 SCC 616 = (1980) 93 L.W 18 S. Mohan Lal v. R. Kondiah.). It was held in that case that the profession of an advocate is a business. Their Lordships have also extracted the definition of the term “business” as given in Black's Law Dictionary, 6th Edition, at p. 198, which is as follows:—
“Business — Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood. Union League Club v. Johnson. Enterprise in which person engaged shows willingness to invest time and capital on future outcome. Doggett v. Burnet. That which habitually busies or occupies or engages the time, attention, Labour and effort of persons as a principal serious concern or interest or for livelihood or profit.
See also Association; Company; Corporation; Doing business; Joint Enterprise; Partnership; Place of business; Trade”.
15. Learned counsel for the petitioner stressed on the word's “carrying on business” as stated in our Statute. Learned counsel argued that if medical profession also comes within the meaning of ‘business’, then the requirement must be a present need. On the date of petition, the landlady's son was only a student and, therefore, it cannot be said that he is ‘carrying on business’. According to him, emphasis should be given on the present need. True, there are words “carrying on business” in our statute. But the said words have been interpreted judicially.
16. Regarding the words ‘carrying on business’ I had occasion to consider the entire case-law on the point in the decision reported in 1995 (2) MLJ 282, (Arumugha Chettiar v. Jayaraman). In that case, I have extracted the earlier view and how far the later judicial interpretation has given a liberal view. I have also referred to the various decisions of this Court wherein their Lordships have said that the words' carrying on business are to be understood in a more practical way than by giving a literal interpretation. The literal interpretation which was the earlier view has been given a go by in the later decision. The present trend seems to be that the word “carrying on business” may consist of series of acts, and if one step is taken, that will be sufficient to come within the meaning of ‘carrying on business’.
17. I have followed the decision reported in Azimuddin Sahib v. Rangaswami Pillai (1958) 2 MLJ 389) wherein the words are interpreted thus:
“Though the wording of the subsection is not quite happy the expression “for the purpose of the business which he is carrying on” has to be interpreted, from the context, haying regard to the nature of the business and the transaction incidental to it. If bona fide preparation for a business is afoot the business may be regarded as being carried on in many cases.”
Another decision which I referred to is, Saraswathi alias Sasikala v. Syed Ibrahim reported in 1993-I-MLJ 321. In that case, the only step that was taken was, the landlady was having funds and she wanted to start a hotel business. It was held that saving of necessary funds amounts to one step to start a business and, therefore, it will amount to ‘Carrying on business’. In T. Anandan v. Noorjahan (1994 I-MLJ 657) (it was held that ‘carrying on business’ does not mean ‘actually carrying on business’, but only taking some steps for the purpose of carrying on business.
18. From the above legal position, it is clear that if one step is taken with intent to do actual business in future that will mean carrying on business and that will be sufficient compliance of this Section. In view of the interpretation given to these words, it is clear that a future need is also contemplated. The only requirement is that step must have been taken in contemplation of the future need. That will amount to ‘carrying on business’.
19. In this case, the landlady's son who is a medical practitioner, wants to start a clinic. In all the cases referred to, it was a trade. The interpretation given for ‘carrying on business’ depends upon the nature of business to be started. Being a medical profession, obtaining necessary qualification which is pre-requisite to start a clinic is one step for the said purpose. Once he gets qualified, he is entitled to start a clinic. That itself enables him to start a business. Undergoing studies in a medical college and thereafter getting qualified, will satisfy the statutory requirements.
20. It was argued by learned counsel that the person for whose requirement the building is needed, is not examined, and that shows the lack of good faith. I don't think that such an argument can be accepted, for, it is settled law that in Rent Control Petition, it is only the bona fide that has to be proved. The factum of bona fides can be proved in any manner known to law The person for whose occupation the building is required, is not a necessary witness to prove the claim. It is the desire of the landlady to provide for her dependent son, the building in question for starting a clinic. It is a mother's wish that her son must be settled in life. The tenant has no case that the landlady's son is not going to occupy the building. If the landlady herself has come to Court and deposed that her son will occupy the building, I think that is sufficient compliance of the statutory requirement.
A similar contention was taken in a decision reported in (1993) 2 SCC 68 (Gulraj Singh Grewal v. Dr. Harbans Singh and another) as stated in paragraph 8 (at page 72 of the Reports), namely, that the person for whose requirement the tenant was sought to be evicted, was not examined. Their Lordships repelled the said contention. The argument was that the building is required for the personal need of the son and that personal need can be proved only by that son. In the decision of the Supreme Court referred to above, it was held thus:—
“…..the non-examination of respondent 2 also, when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding, of fact cannot be reopened….. …… …… …..”
In this case, we are concerned about the bona fides of the landlady, and the bona fides are proved by her evidence. She comes forward and says that she bona fide requires the building for her son's occupation. Both the Authorities below have accepted the evidence of the landlady and held that she has proved the bona fides. It is a finding of fact purely based on appreciation of evidence. No circumstance has been made out challenging the said finding as perverse.
21. Learned counsel further contended that the adjoining shop room is also available for occupation and, therefore, the present claim cannot stand. The said contention is made without understanding the pleadings. According to the landlady, the entire building is to be made use of for clinic. The adjoining room is also required for the same purpose. The requirement will not be satisfied until the entire structure is made available for the occupation of the son. It is in evidence that in between the two rooms there is only a wall which could be dismantled at any time. It is further contended that there are other buildings in the possession of the landlady, which could have been made use of. For the said purpose, no evidence has been let in on the side of the tenant. An assertion is made in the petition that the landlady and her son are not in possession of any non-residential building of their own, nor are they in possession of any building of that nature. But I think even that argument cannot hold good, in view of a recent judgment of the Supreme Court reported in (1996) 5 SCC 344 (Meenal Elknath Kashirsagar v. Traders & Agencies). Of course, that was a case of residential building. In respect of residential and non-residential buildings, the Statute is the same. In the judgment of the Supreme Court, it was held thus:—
“It is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises”.
Same is the case reported in (1996) 5 SCC 353 (Prativa Devi (Smt) v. T.V Krishnan) wherein it was held thus:—
“The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. ….”
It was further held thus:—
“…There is no law which deprives the landlord of the beneficial enjoyment of his property. ….”
22. Regarding other alternate accommodation, apart from lack, of evidence, the said contention also cannot legally stand since no building is shown in their physical possession suitable to run the clinic.
23. For the above reasons, I do not find any ground to interfere with the concurrent findings of the Authorities below.
24. In the result, the Revision is dismissed with costs.
KA/RR/VCS