CRP NPD/1851/2003 of M.PALANICHAMY, Vs NATARAJAN NADAR, on 19 December 2003

:COMMON ORDER

C.R.P.No.1850 of 2003 has arisen from the judgment of the Rent ControlAppellate Authority, Dindigul, made in R.C.A.No.24 of 1999 setting aside theorder of the Rent Controller, wherein the petition filed by the landlord, thefirst respondent herein in R.C.O.P.No.11 of 1989 under Sections 1 0(2) and10(3)(a)(iii) of the Tamilnadu Buildings ( Lease and Rent Control) Act toevict the tenant was dismissed, while the second revision in C.R.P. No.1851of 2003 has arisen from the judgment of the Appellate Authority made inR.C.A.No.23 of 1999 reversing the order of the Rent Controller wherein thepetition filed by the tenant in R.C.O.P.No.85 of 1988 under Sec.8(5) of theAct to deposit the monthly rental in Court was allowed.2. The parties hereinafter will be referred to as petitioner andrespondents 1 and 2 as arrayed in R.C.O.P.No.11 of 1989.

3. One Manickam Chettiar, the second respondent alleging that he was a tenant under the petitioner landlord; that when lawful tenders were made ofthe rent directly and through money order, they were refused by the landlord,and hence, there arose a necessity to deposit the rental in Court, filedR.C.O.P.No.85 of 1988. The same was contested by the petitioner landlordstating that he was not a tenant under him; but, the property was leased outto one Ruthri Chettiar, the first respondent, under whom he was a subtenant.

4. Demanding eviction, the landlord filed R.C.O.P.No.11 of 19 89alleging that that the property fell to his share in the family partition,which took place in the year 1986; that in the year 1974, the first respondenttook the property on lease for conducting his nut stall; that subsequent tothe partition, the first respondent recognizing the ownership of the landlord,was paying the rental of Rs.150/- per month; that while so, he sublet theproperty to the second respondent; that the landlord is running his groceryshop in a rented premises, and thus, he is in need of the petition mentionedpremises; that he issued a legal notice on 16.7.88 to both the respondents;that the first respondent, despite service, has not issued any reply; and thatthe second respondent issued a reply notice containing false allegations, andhence, the petition has to be allowed. The first respondent contested theapplication stating that he originally took on lease the premises which wassubsequently divided into three parts; that they were assigned with doorNos.187, 188 and 189; that he was originally paying the monthly rental atRs.70/- and thereafter, the enhanced monthly rental of Rs.90/-, and now, he ispaying Rs.150/- per month; that he retained Door No.189 and deliveredpossession to the landlord in respect of Door Nos.187 and 188; that therefrom,he had no connection to the premises situated in Door Nos.187 and 188; thatthe landlord leased out the property to the second respondent, and there wasno sublease, and so, he was not a necessary party to the proceedings. The application was contested by the second respondent stating that he has deniedthe sub tenancy; that he has directly taken the property on lease; that he hasbeen paying the rental; that it is not correct to state that the landlordrequired the premises for his personal occupation; that it has been only forthe purpose of raising the rental; that in order to protect his right, aftersending the rental through money order, he has filed RCOP No.8 5/88 fordepositing the rental arrears, and hence, the petition was to be dismissed.

5. The learned Rent Controller, after enquiry, allowed R.C.O.P.No.85of 1988 while dismissed R.C.O.P.No.11 of 1989. Aggrieved petitioner landlordpreferred two appeals in R.C.A.Nos.23 and 24 of 1999. The learned RentControl Appellate Authority on enquiry allowed both the appeals and reversedthe finding recorded by the Rent Controller. Aggrieved revision petitionershave brought forth these revisions.

6. During the pendency of the proceedings in RCOP 11/89, both thefirst and second respondents died, and the respondents 3 to 9, the legalrepresentatives of the deceased first respondent and the respondents 10 to 15,the legal representatives of the deceased second respondent were added.

7. At the time of admission, the Court heard the learned Counsel forthe revision petitioners and the respondents also.

8. Admittedly, the non-residential premises in question, originallybelonged to one Subramanya Nadar, and pursuant to the partition that tookplace in the family, the same was allotted to the landlord. The case of thepetitioner landlord is that the first respondent has sublet the property tothe second respondent, which fact was denied by both the respondents.However, the second respondent has admitted the ownership of the landlord.But, the contention of the landlord that the second respondent has been atenant of the landlord is denied by him. It is the case of the landlord thatthe second respondent was inducted into the property on sublease. It ispertinent to point out that the second respondent has not satisfactorilyestablished that he was paying the rent directly to the landlord, at any pointof time. In the absence of any proof as to the payment of rental directly tothe landlord by the second respondent, it has to be stated that the subtenancystands proved. Needless to say that the sublease is always a matter forinference from the available evidence. Apart from the absence of anynecessary documentary evidence, the second respondent as R.W.1 has stated inhis evidence that he did not remember whether he paid the rental to thelandlord, and hence, it can be safely held that it was only a sublease.Therefore, without any hesitation it can be held that the first ground namelythe sublease stood proved.

9. The petitioner landlord sought for eviction on the ground ofpersonal occupation also. His case was that he was carrying on his groceryshop in the rented premises; that he was in need of his property namely thepremises in question, for running his business. It is an admitted positionthat the landlord was running a grocery shop in a rented premises. What wascontended by the second respondent before the authorities below and equally here also is that the claim of the landlord was without bona fide; but, it wasbased on oblique motive in order to obtain more rent; and that the landlordhas not proved that there were compelling necessity of his being evicted fromthe rented premises; that the landlord as P.W.1 has also categoricallyadmitted that his landlord has not issued any notice demanding eviction of thepremises, and hence, the same cannot be a ground to evict the secondrespondent from the premises. The Court is of the view that these contentionsdo not merit acceptance.

10. To obtain a non-residential building, a landlord should prove thefollowing:

(1) The building in question is non-residential in character;

(2) At the time of the filing of the eviction petition, thelandlord was actually carrying on business;

(3) The landlord should not occupy any other non-residential building, owned by him;

(4) The claim of the landlord should be bona fide and should not be onoblique motives, like trying to raise rental.

11. In the instant case, the premises in question is a nonresidential

one. The landlord was actually running a grocery shop in a rented premises onthe date of filing of the petition. He was not occupying any othernon-residential building of his own. The landlord in order to show the bonafide has to only establish the genuine present need for own occupation, and heneed not prove that he was in danger of being evicted from the rentedpremises. The landlord is carrying on his business in a rented premises, andhe has also deposed that his landlord has been demanding him to vacate thesame. It is true that the landlord of the petitioner has not issued anynotice calling for eviction. But, it did not mean that the dema nd foreviction was false. It is well settled position of law that in a case likethis, the landlord who is carrying on his business in a rented premises, neednot prove the danger of his being evicted from the said rented premises. Inthe instant case, the landlord has established the genuine present need forhis own occupation.

12. The contention of the learned Counsel for the revision petitioners that the landlord has two other premises which are also available,and hence, the landlord could occupy any one of those premises cannot becountenanced both factually and legally. It is not in dispute that those twopremises are actually occupied by two other tenants. Even assuming that otherpremises are available, then the choice is left to the landlord to decide asto which non-residential premises he should occupy, and the tenant cannot haveany say in the matter. If the landlord is able to show the bona fide, thenthe tenant cannot dictate terms to the landlord that he should occupy someother building and not one mentioned in the petition.

13. For the reasons stated above, the judgments of the lower appellate authority do not require any interference, and both the findingshave got to be necessarily sustained. Hence, both the civil revisionpetitions are liable to be dismissed. However, considering the fact that the revision petitioners are conducting his business in the said premises, theCourt is of the view that a reasonable time has got to be given for theireviction.

14. In the result, both the civil revision petitions are dismissed,confirming the judgments of the lower appellate authority. Six months' timeis given for eviction. The amounts deposited by the revision petitionersbefore the lower Court would represent the damages for the use and occupationof the said premises. Hence, the landlord is entitled to withdraw thoseamounts. The petitioners should continue to deposit the existing rent beforethe lower Court on the fifth of every succeeding month for the said period.If the petitioners fail to vacate and hand over possession within the saidstipulated period or if there is any default in making the deposit of therental in the above line, the landlord is at liberty to initiate executionproceedings. No costs. Consequently, connected C.M.P. is closed.

Index: YesInternet: Yes

To:1) The Rent Control Appellate Authority,Principal Subordinate Judge, Dindigul,2) The Rent ControllerPrincipal District Munsif, Dindigul.

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