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2017 Supreme(Mad) 2721
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, J.
Milan Readymade Shop, Through its Partner, Lalji Vora S/o G.K.Vora – Petitioner
Versus
S.P.S.Selvaraj – Respondent
C.R.P(MD) No.2128 of 2015
Decided On : 12-07-2017
For the Petitioner: Mr. J.Barathan
For the Respondent: Mr. T.C.S.Thillainayagam
Headnote:
Constitution of India ,1950 - Article 141 – Civil Procedure Code ,1908 - Order 30, Rule (1) -Tamil Nadu Buildings (Lease and Rent Control)Act, 1960 - Section 10(3)(a)(iii) - Revision Petitioner is Tenant and Respondent is Landlord - Revision Petition is directed against concurrent finding of Tribunal and Rent Control Appellate Authority in allowing the petition filed by Landlord for eviction on ground of owners occupation under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control)Act, 1960 - Petitioner/Landlord is that the ground floor portion of the property, was let out for lease to one to run a Readymade Shop in name and style of “ Readymade Shop” - Petitioner/landlord and his sons are carrying on business under - Since they require premises for owners occupation, respondent-Tenant is liable to vacate and hand over vacant possession - Case of tenant/respondent as defence to eviction proceedings is that, plea of requirement for own use and occupation is false - Petition for owners occupation is filed with motive to get more rent for building and paid as rent regularly - Just to enhance rent, petition is filed - Landlord owns several properties - Therefore, there is no bona fide in filing petition. Further, tenant is a partnership firm – Held, Learned counsel for revision petitioner vehemently argued that Division Bench Judgment of the High Court is not binding on the Courts in Tamil Nadu - Law of precedent as envisaged under Article 141 of the Constitution of India is flouted by Courts below by interpreting law declared by Honbel Supreme Court Division Bench of High Court that this cannot by itself result in the dismissal of the application - It would be merely a case of misdescription of respondents to application and this misdescription can be corrected at any stage of proceedings - There can be no doubt that partners of the firm are before the Court this Court finds error or irregularity of the finding of the tribunal and the appellant authority - Further, the Courts have rightly considered dicta laid by Apex Court and found facts of case does not warrants application of the said dicta - Person, who is at default, cannot be allowed to take advantage of his own fault - When inscriptive of the tenant is not born out of malafide intention and interested parties have participated through their agent effectively, no prejudice is caused misdescription even if any - Hence, this Civil Revision Petition is dismissed - Considering commercial activity of Revision Petitioner-tenant, three months time from today is granted for vacating and handing over the vacant possession of the demise premises to the landlord.
1. The Revision Petitioner is the Tenant and the Respondent is the Landlord.
2. This Revision Petition is directed against the concurrent finding of the Tribunal and the Rent Control Appellate Authority in allowing the petition in R.C.O.P.No.38 of 2010 filed by the Landlord for eviction on the ground of owners occupation under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control)Act, 1960.
3. The case of the petitioner/Landlord is that the ground floor portion of the property, bearing Door No.12 and 13, Amman Sannathi Street, Madurai Town, was let out for lease to one R.R. Rathod to run a Readymade Shop in the name and style of “Milan Readymade Shop”. The petitioner/landlord and his sons are carrying on business under the name and title of “Gopal Tooth Power, Gopal Toothpaste, Raja Enterprises in a rented building. Since they reqire the premises for owners occupation, the respondent-Tenant is liable to vacate and hand over the vacant possession.
4. Whereas, the case of the tenant/respondent as defence to the eviction proceedings is that, the plea of requirement for own use and occupation is false. The petition for owners occupation is filed with motive to get more rent for the building Rs.12,000/- and paid as rent regularly. Just to enhance the rent, the petition is filed. The landlord owns several properties in and around Madurai. Therefore, there is no bona fide in filing the petition. Further, the tenant is a partnership firm. Without impleading all the partners, the petition for eviction under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is not maintainable and in view of the Hon'ble Supreme Court judgment in M/s Chhotelal Pyarelal, The Partnership Firm and others vs. Shikharchand reported in AIR 1984 Supreme Court 1570.
5. The trial Court allowed the petition and ordered eviction. On appeal, the same was considered and confirmed. Aggrieved by the concurrent finding, the tenant/revision petitioner has preferred this revision petition on the ground that, the Courts below failed to consider the legal issue regarding maintainability of the eviction proceedings, without impleading all the parties of the firm and failed to consider the evidence revealing the ownership of several buildings within the town available for the landlord to occupy including the first floor portion in the same building.
6. The learned counsel for the revision petitioner herein forcibly submitted that in AIR 1984 SC 1570 (M/s Chhotelal Pyarelal, The Partnership Firm and others v. V.Shikharchand), the Hon'ble Apex Court has held that Civil Procedure Code is not applicable to the proceedings under the Buildings (Lease and Rent) Control Act, 1960, which is composite Act, both substantial as well as procedural law in build. Order 30 of Code of Civil Procedure is not applicable to the cases under Rent Control Act, 1960. Therefore, without impleading all the partners of the partnership firm, the eviction petition is not maintainable. Overlooking the dictum of Hon'ble Supreme Court is against the law of precedent enshrined in Article 141 of the Indian Constitution. The landlord though is in possession of first floor of the same building, he has admittedly kept vacant. This only reveals, the landlord's requirment is not bona fide.
7. The requirment of the property for own use and occupation being a question of fact, the Court is inclined not to interfere with the concurrent findings of the Courts below. Except to reiterate that, when the landlord-petitioner and his sons have been manufaturing and trading of various consumerable products and carrying on the same in the rental premises, their bonafide in seeking the possession of the building let out to the tenant does not warrants doubt. The possession of first floor portion is admitted by the landlord. He has kept files in the said portion and in his discretion. He has chosen the portion in the ground as place suitable for his business. It is not th
