Back
1994 Supreme(Mad) 932
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE THANIKKACHALAM
N. Mohambaram
Versus
C.K.C.M. Kader Shah and Brothers, represented by its Partner Sri C.K.C.M. Khader Shah
C.R.P.No.2339 of 1986
Decided On : 11-11-1994
V.R. Gopalan, for Petitioner. P.k.p. unnikrishnan, for respondent.
To obtain possession under Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the landlord must show that he is carrying on his business in a rented premises on the date of filing the petition, that he is not in occupation of any other non-residential premises of his own in the city of Madras, and that he has a bona fide requirement of the petition premises.
Headnote:
EVICTION - OWNER'S OCCUPATION - BONA FIDE REQUIREMENT - [SEC. 10(3)(A)(III) OF THE TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960] - Landlord's petition for eviction under Sec. 10(3)(a)(iii) of the Act dismissed due to failure to establish bona fide requirement and carrying on of business on the date of filing the petition.
Fact of the Case:
Landlord filed a petition for eviction against the tenant under Sec. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, claiming owner's occupation. The landlord had previously surrendered possession of another rented premises where he conducted his cycle business due to an eviction order. The tenant contested the petition, arguing that the landlord was not carrying on any business on the date of filing the petition and that he was in occupation of a major portion of the petition premises.
Finding of the Court:
The court found that the landlord had failed to establish that he was carrying on his cycle business on the date of filing the petition. The court also noted that the landlord was in occupation of a major portion of the petition premises, which raised questions about his bona fide requirement under Sec. 10(3)(a)(iii) of the Act.
Issues: 1. Whether the landlord had established that he was carrying on his cycle business on the date of filing the petition for eviction? 2. Whether the landlord had established his bona fide requirement of the petition premises under Sec. 10(3)(a)(iii) of the Act?
Ratio Decidendi: 1. To obtain possession under Sec. 10(3)(a)(iii) of the Act, the landlord must show that he is carrying on his business in a rented premises on the date of filing the petition and that he is not in occupation of any other non-residential premises of his own in the city of Madras. The landlord must also prove the element of bona fide as contemplated under Sec. 10(3)(e) of the Act. 2. The court held that the landlord had failed to establish that he was carrying on his cycle business on the date of filing the petition. The court also found that the landlord was in occupation of a major portion of the petition premises, which raised questions about his bona fide requirement under Sec. 10(3)(a)(iii) of the Act.
Final Decision: The court dismissed the landlord's revision petition, upholding the order of the Rent Control Appellate Authority, which had dismissed the landlord's petition for eviction under Sec. 10(3)(a)(iii) of the Act.
The court made the following order: the landlord is the petitioner herein. the landlord filed the petition for eviction against the tenant on the ground of owner’s occupation under sec. 10(3)(a)(iii) of the tamil nadu buildings (lease and rent control) act, 1960, as amended by act 23 of 1973 and act 1 of 1980 (hereinafter called the act). the respondent is the tenant under the petitioner herein in respect of the petition premises facing kattur sadayappan street, periamet, madras-600 003, bearing door no.26, on a monthly rent of rs.375 apart from electricity charges. the landlord is also living in the same building having the same door no.26, but facing karpuramudali street, periamet, Madras-600 003. A partition wall is dividing the landlord’s portion and the tenant’s portion. There was an agreement between the landlord and the tenant dated 9. 1982 and according to the said agreement, the tenant agreed to help the landlord financially to construct the first floor so as to enable the landlord to occupy the first floor and let out the entire ground floor to the tenant. If such construction is made, the tenant agreed to pay the rent at the rate of Rs.1.001 per month. The tenant advanced a sum of Rs.5,000 in pursuance of the said agreement. On 18. 1982 another sum of Rs.6,000 was also advanced. Thus the tenant advanced a sum of Rs.11,000 to the landlord to put up the first floor. The tenant also assured the landlord to advance a further sum of Rs.44,000 for building the first floor. According to the landlord in spite of several requests made by him, the tenant did not advance the further sum of Rs.44,000. Therefore, he was unable to construct the first floor. The landlord was carrying on his cycle business at premises No.57, Thatha Muthiappan Street. Madras-600 001. The owner of the said premises filed a petition for eviction against the landlord herein in R.C.O.P. No.5705 of 1981 wherein eviction was ordered. The appeal filed by the landlord herein was also dismissed. Thereafter C.R.P. No.5571 of 1985 was filed before this Court and that was also dismissed. Thereafter the landlord herein handed over possession of the premises at door No.57, Thatha Muthiapppan Street, Madras-600 001 to his landlord. According to the landlord he is not having or in occupation of any other non-residential premises of his own in the City of Madras. For the purpose of conducting his cycle business he bona fide requires the petition premises under the occupation of the tenant herein. The tenant is now in occupation of the premises at No.14, Ekambara Kumaraguru Street, Periamet, Madras-3. Therefore, the petition premises was not used by him for the past one year. It is kept under lock and key. The landlord is always ready and willing to return back the sum of Rs.11,000 advanced by the tenant. The landlord sent a notice to the tenant on 16. 1984 calling upon the tenant to quit and deliver vacant possession of the petition premises. The tenant sent a reply on 17. 1984. Hence, the landlord filed the present petition for eviction under Sec.l0(3)(a)(iii)of the Act.
2. The tenant filed a counter stating as follows: The tenant is a partnership firm. The other partners of the firm were not impleaded as parties in the petition for eviction. After the landlord surrendered possession of the premises at No.57, Thatha Muthiappan Street, Madras-1, he is not carrying on any business as alleged by him. On the date of filing the petition for eviction the landlord is not carrying on any business. Though the landlord received a sum of Rs.11,000 for putting up construction he did not do so. The tenant agreed to pay a sum of Rs.44,000 for putting up the first floor. Since the landlord failed to start construction work, the money was not advanced by the tenant. The tenant is in occupation of only a small portion facing the street. The landlord is in occupation of the rest of the portion. The tenant temporarily suspended its business so as to enable the landlord to
