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P.K. Prakashan & Another v/s P.K. Soman & Another

    C.R.P.(NPD).No. 2833 & 2834 of 2013 & M.P.Nos. 1 of 2013 & 1 of 2014 (in each cases)

    Decided On, 13 January 2015

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. KALYANASUNDARAM

    For the Petitioners: P.V.S. Giridhar, M/s. P.V.S. Giridhar and Sai, Advocates. For the Respondents: V. Raghupathi, Advocate.



Judgment Text

(Common Prayer: Civil Revision Petitions are filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the judgment and decreetal orders dated 30.10.2012 in RCA Nos.23 & 24 of 2011 passed by the II Additional District Judge at Puducherry confirming the judgment and decreetal orders dated 17.12.2010 passed by the learned Rent Controller, Mahe in HRCOP Nos.6 & 7 of 2010.)

Common Order:

1. These revisions arises out of the orders passed by the Rent Control Appellate Authority (II Additional District Judge, Puducherry), Mahe Camp in RCA Nos.23 & 24 of 2011 confirming the eviction orders passed by the Rent Controller in HRCOP Nos.6 & 7 of 2010.

2. The petitioners in these revisions are unsuccessful tenants before the Rent Control Authorities. The respondents as landlords initiated eviction proceeding against the petitioners in HRCOP Nos.6 & 7 of 2010 under Section 10 (3) (e) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, seeking eviction on the ground of own use and occupation. It is averred by the landlords that the tenants have been inducted in the petition premises on monthly rent of Rs.1200/- and the premises are used for non-residential purpose. The landlords issued notice on 25.03.2008 requesting the tenants to surrender vacant possession of the petition premises for their own use and occupation but the tenants sent a reply on 03.05.2008 with false allegations.

3. The respondents have stated in the petition that the first son of the second respondent herein was a B.Tech. Student and he has completed his course and is now unemployed; that her second son is also studying computer course and for commencing a computer centre and internet cafe, the tenanted premises is required for their occupation. It is further stated that both the tenants are occupying adjacent shops which would be convenient for their business purpose. The eviction petitions were resisted by the tenants stating that the requirement of the landlords are not bonafide and the petitions were filed with ultimate motive to vacate the tenants.

4. Before the Rent Controller, the landlords examined two witness and marked Exs.P1 to P13. On the side of the tenants neither witnesses were examined nor documents were marked. The Rent Controller, held that the requirement of the landlords is bonafide and ordered eviction. The Appellate Authority confirmed the finding of the Rent Controller and dismissed the appeals filed by the tenants. Questioning the orders, the present revision petitions have been filed.

5. Mr.P.V.S.Giridhar, learned counsel for the petitioners submitted that the onus is on the landlords to prove that the requirement is bonafide and it must be averred that they are not occupying any building of their own before seeking eviction under Section 10 (3) (e) of the Act. The learned counsel further submitted that there is no pleading by the landlords in this case that they do not own any other building in the town, but the authorities have allowed the eviction petitions placing burden of proof wrongly on the tenants. It is further contended that to seek eviction for commencement of the business, the landlords have to specify that their requirements are bonafide; that the landlords have taken some preparatory steps to commence the business and their financial capacity.

6. It is the further contention of the learned counsel that there should be specific pleading with regard to comparative hardship and finding by the authorities. The learned counsel has placed reliance upon the a judgment of the Hon'ble Apex Court in Mattulal v. Radhe Lal reported in AIR 1974 C 1596 wherein it is observed as follows -

'12. The question would still remain whether there were proper grounds on which this finding of fact could be interfered with by the High Court. It is now well settled by several decisions of this Court including the decision in Sarvate T.B.'s case (2) and Smt. Kamla Soni's case(1) that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for. the court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would (1) C. A. No. 2150 of 1966, decided on 26th September [reported in AIR 1969 (2) NSC 186 that mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that, purpose and that his requirement is bona fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be 'an element of need and the landlord must show the burden being upon him that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business. The Additional District Judge did not misdirect himself in regard to these matters, as for example, by misconstruing the word 'required' or by erroneously placing the burden of proof on the appellant and no error of law was committed by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact.'

7. In Deena Nath v. Pooran Lal reported in 2001 (5) SCC 705, the Hon'ble Supreme Court has held as follows -

'15. From the discussions in the foregoing paragraphs, the question that arises for determination is whether in the facts and circumstances of the case, the High Court was justified in interfering with the concurrent judgments of the courts below in holding that the plaintiff required the premises bonafide for use of his son? Section 12(1)(f) of the Act under which the eviction of the tenant was sought and granted by the lower Courts, reads as follows:

"Sec.12. Restriction on eviction of tenants.-(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely:-

(a) – (e)

(f) that the accommodation let for non- residential purposes is required bona-fide by the landlord for the purpose of continuing or starting his business or that any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;"

The section, on a plain reading, is clear and specific. The criteria to be fulfilled for an order of eviction under the provision are :

'i) that the non-residential accommodation is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons; and

ii) that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. (emphasis supplied)'

8. The High Court of Orissa, in Artatrana Mohanty v. Sibendranath Sinha reported in MANU/OR/0373/1989 has held that mere assertion on the part of landlord that he requires house in occupation of tenant for his own purposes was not decisive and it was for court to determine truth of assertion and also whether it was bonafide. In Sabvate T.B. v. Nemichand reported in MANU/SC/0410/1965, the Hon'ble Supreme Court has held thus -

'6. We agree with the High Court of Madhya Pradesh that the word 'genuinely' used in Section4(h) which "speaks of the state of mind," means honestly or in good faith:" see Damodar v. Nandram MANU/MP/0162/1960: 1960 MPLJ 925 : AIR 1960 MP 345 : 1960 JLJ 473. The District Court considered the evidence for the purpose of ascertaining whether the Respondent honestly or in good faith required the premises and held that the Respondent failed to establish the case pleaded by him. This finding of the District Court was based on appreciation of evidence and was binding upon the High Court, and the High Court had no power to reverse that finding. The criticism made by the High Court that the District Court's finding was vitiated "due to very imperfect understanding of the meaning of the expression 'genuinely requires' occurring in Clauses (g) and (h) of Section4of the Act," and that the District Court had "arrived at a finding which is totally unrelated to the legal connotation of the phrase 'genuinely requires' and almost borders on perversity", does not appear to be merited. In our judgment, the District Court committed no error in the examination of the evidence in the light of the Full Bench judgment in Damodar's case MANU/MP/0162/1960: 1960 MFLJ 925 : AIR 1960 MP 345 : 1960 JLJ 473. The opinion expressed by the High Court that under Section 4(h) of the Act genuineness of the alleged requirements of the landlord must be determined in the light of the assertions made by him and the case of requirement of accommodation by the landlord may be negatived only if there be evidence to prove that the assertion was demonstrably false or mala fide, cannot be accepted as a correct statement of the law. A tenant of "accommodation" disentitles himself to protection in a suit in ejectment if the case falls within any of the clauses of section4of the Act. The Legislature has imposed a restriction upon the jurisdiction of the Court to pass a decree against the tenant in a suit in ejectment by the landlord; and the onus of proving the conditions, on proof of which alone the protection may not be claimed, lies upon the landlord. The burden of proving that he genuinely requires non-residential accommodation within the meaning of Section4(h)therefore lies upon the landlord. Whether in a given case, that burden is discharged by the evidence on the record is a question of fact. It must however be observed that mere assertion by the landlord that he requires for his use the premises in the occupation of his tenant raises no presumption that he genuinely requires the premises for his use. The District Court held that the Respondent failed to establish that he genuinely required the premises in suit primarily on two grounds-(i) that he had in the first instance claimed that he required the premises for his residence and after the suit was remanded to the trial Court, he set up the plea that the premises were required for business purposes and abandoned his earlier case, and (ii) that the nature and extent of the business carried on by the Respondent were such that no additional accommodation could have been honestly claimed by him. The inference of fact raised by the District Court was pre-eminently reasonable. In any event the High Court had no jurisdiction in second appeal to set aside the conclusion reached by the District Court based on that inference of fact. It has also to be noticed that the trial Courts and the District Court held that the respondent, for conducting the business on the very small scale, had other accommodation. Section4(h)of the Madhya Pradesh Accommodation Control Act requires not only that the accommodation is genuinely required for continuing or starting the landlord's business, but that the landlord is not in occupation of any other accommodation in the city or town for that purpose. On the finding recorded by the District Court, the second condition was also not satisfied, and the Respondent's claim was bound to fail.

9. In a judgment of Rajasthan High Court, reported in MANU/RH/0012/1979 [Jagadish Narain v. Dwaraka Das], it is held as follows -

'6. In this view of the matter the above revisions succeed, the order of the learned trial Court dated 11th October, 1976, passed in all the three cases mentioned above, so far as placing the burden of proof on the defendant tenant is set aside and the burden of proof of such issue is placed on the plaintiffs. In the facts and circumstances of the case there will be no order as to costs.'

10. In N.Jagadeesan v. K.Selvam reported in MANU/TN/0225/2008, it is held as follows -

'24. P.W.1-Jagadeesan (landlord), in his evidence has deposed that the respondent/tenant occupying two shops in the petition mentioned premises and the monthly rent for the two shops is Rs.700/- in all and that the respondent's father was a tenant under him for 10 years and the monthly rent for the one shop is Rs.350/- and that respondent is doing business in tender coconuts and that his second son Kirupakaran is employed in Railways as Khalasi and the petition property is required for doing electrical business and since his second son is doing the temporary job, there are no chances for getting promotion and after the death of the respondent's father, the respondent came to him and asked for time to vacate the portion occupied by him and the said letter written by the respondent is Ex.P.1 and the rent receipt is Ex.P.2.

25. The specific case of the revision petitioner/ landlord/petitioner is that for starting an electrical business for his son the portion occupied by the respondent is required bonafide and that the petition property is also required for additional accommodation and if his son leaves the Khalasi job and start doing electrical business, then he will get good income.

26. It is the evidence of the P.W.1, the landlord that at the time of filing of the present petition three shops were vacant and that no attempts were made to do business in the said vacant shops and since those vacant shops were not in same row, no business was started.'

11. In a judgment in S.M.Subbiah v. S.Nandappan & Ors. reported in MANU/TN/0243/1999, it is observed as follows -

'6. Mr.G. Masilamani, learned senior counsel, relied upon the following judgments in support of his case on the question of the requirement of the pleading on relative hardship. In the Nilgais Co-operative Marketing Society v. Uthandi, 1998 (2) MLJ 745 the requirement of the necessity to plead on relative hardship came up for consideration. In that judgment the earlier judgments of this Court in Radhakrishnan v. Scethalakshmi, 1988 (I) L.W. 67 Annakili Ammal v. H.C. Hussain and Hassan, 97 L.W. 116 : 1984(1) M.LJ. 340 and R. Krishnaswamy v. N. Arumugham, 1993 (I) M.LJ. 122, had been taken into account. In that judgment, it was found on facts that though there was no pleading on the side of the landlord on relative hardship, yet the tenant has chosen to plead on that aspect in detail and evidence was available on both sides on that issue. It was also found that the Courts below have considered the materials referred to above and came to the conclusion one way or the other. Under those circumstances, it was held that the absence of the pleading on the part of the landlord on relative hardship did not affect his case and in any event, no prejudice was caused to the tenant on account of that. Therefore the judgment of this Court on the necessity to plead on relative hardship, appears to be that the lack of pleading on the part of the landlord by itself would not be fatal if there is pleading on the other side and evidence available on record on which the Courts have applied their mind.'

12. Per contra, Mr.V.Raghupathy, learned counsel for the respondents submitted that the landlords have stated that the building is required for the business of their son. It is an admitted fact that the first son of the landlady had already completed his B.Tech and her second son, at the time of filing of the eviction petition was studying computer course. The learned counsel further submitted that the landlords have proved their requirement as bonafide through oral and documentary evidence but the tenants has not even chosen to enter into the witness box to dispute the case of the landlords. When the uncontroverted evidence is available on record and the authorities have rendered finding on proper appreciation of evidence, this court cannot upset the concurrent finding of the authorities.

13. It is further submitted that there is no evidence to show that the landlords have any other property in the town and therefore the mere non-mentioning of this fact in the pleading would not be factual to the case of the landlords. The learned counsel has further submitted that in the reply notice there is no allegation by the tenants that the landlords have any other property in the city and they are in occupation of their own building.

14. The learned counsel has relied upon the following judgments in support of his contention.

'(A) In 1992 (2) MLJ 422 [ M.Nemichand Jain v. P.Ethirajan], a similar contention was raised in that case that in the absence of any specific view in the petition that the landlord is not in occupation of any non-residential building for the purpose of carrying on his business, the Rent Controller ought not to have ordered eviction. While rejecting the contention, this Court has held that the courts have to consider only the evidence on record and decide whether the bonafide requirement has been met out. In the absence of express sentence in the pleading, does not vitiate the proceedings before the courts below.

(B) In 1996 (2) L.W. 494 [G.R.Raghupathy v. Dr.K.Sankar, etc.], it is held as follows -

8. I cannot agree with the said submission of the learned counsel for more than reason. The contention of lack of pleadings was not raised before the Authorities below, and I further find that the lack of pleadings, if any, has not prejudiced the case of the tenant, petitioner herein, in any way. The object of pleading is only to put the parties on notice, of the real matter in issue. But, if the parties are already aware of the real matter in issue and they have also joined in issue over the same, the lack of pleadsings can never be treated as a ground to reject the claim. Pleadings before Rent Controller cannot be given that much of importance given to pleadings in a suit before Civil Court. Proceeding before a Rent Control Court is summary in nature and the provisions of the Code of Civil Procedure are not fully made applicable to be extent provided under the statute. We must further note that the Rent Control Court is not a Civil Court and the Act itself is more or less a self-contained Code, so far as the relationship of landlord and tenant is concerned.

(C) In 1999 (1) SCC 141 [Ram Narain Arora v. Asha Rani and others], it is observed as follows -

11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the Court to decide the matters. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the court, neither party is prejudiced. If we analyses from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller.

(D) In CRP NPD No.656 of 2009 dated 12.06.2013, this Court has held as follows -

15. In a case reported in 2004 (5) CTC 675, T.Sivakumar vs. K.Prabhakaran, the learned single Judge of this Court has considered similar issue almost on similar set of facts and found that though the landlord or the person for whom the eviction sought for, is not already carrying on business the requirement on the ground of own use and occupation can be ordered, if steps have been taken by the landlord for commencement of the business. At this juncture, it is to be noted that it is not necessary that in all the cases the landlord has to prove or show some materials that he has taken steps to commence the business. Such requirement depends upon the nature of each business. What is required to be seen most importantly is that as to whether the requirement is a bonafide requirement and if such bonafide is proved by material documents the landlord should succeed in his attempt. The bonafide may be proved even by showing the intention and the qualification or eligibility to start the business. When such intention coupled with eligibility is established, then the bonafide of the landlord has to be held proved and mere non preparation for commencement of the business cannot be put against such person in all the cases. In certain business, even the pre-commencement preparation could be done only after occupying the premises. Some would venture in large scale business. Some would intend to do petty business. Whether pre-commencement preparation is required or not is to be considered and decided based on the facts and circumstances of each case and there cannot be any universal formula for all the cases. Therefore, in this case when the landlord has proved the bonafide with sufficient materials by marking Exs.P3 to P7 and also by examining P.W.2 which evidence having not been rebutted by adducing any contra evidence by the tenant, I find that the landlord is entitled to an order of eviction.

(E) In CRP NPD No.744 of 2012 dated 23.09.2013, this Court has observed as follows -

10. It is also seen from the judgment of the learned Rent Controller that the respondent did not enter the box to prove that the landlords are having house of their own, wherein, they are residing. Except to put suggestion in the cross-examination that the landlords are residing in their own house, which was also denied by the landlords, no attempt was made by the revision petitioner/tenant to prove that the landlords are residing in their own house, and therefore, three is no bona fide. All these aspects were properly and rightly considered by the learned Rent Control Appellate Authority.

(F) In a judgment of the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh reported in 2014 (5) CTC 217, it is held as follows -

45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.'

15. It is seen from the records that the landlords had initiated eviction proceedings against the tenants in the year 2010 specifically stating that the first son of the landlord had already completed engineering course and he was not able to secure any

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employment. It was further stated that her second son was doing computer course. Indisputably, the landlords have also given evidence about the requirement of the petition premises in their evidence when they examined themselves as PWs1 & 2. Though the tenants have disputed the requirement of the landlords, they have not chosen to disprove the case of the landlords. It is settled law that for commencing computer institute, no preparatory steps are required. 16. In 1997 (2) LW 607 [Thirunavukkarasu v. Vasantha Ammal], it is held as follows - '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. In the judgment referred above, the building was required for commencement of a clinic for the daughter of the landlady and it was observed that the pre-requisite of educational qualification will satisfy the statutory requirements. I am of the view that the judgment is applicable to the facts of this case. Therefore, I do not find force in the contention of the counsel for the petitioner and the judgments relied upon by him do not have bearing to the present case.' 17. The main contention of the tenants is that there was no proper pleading and finding with regard to comparative hardship. It is settled law that only in respect of requirement of the building for additional accommodation under Section 10(3) (c) the Court has to give finding with regard to comparative hardship and in the case of requirement of the building for own use and occupation, if the court finds that the requirement is bona fide, eviction can be ordered. 18. In the present case, both the authorities, on proper appreciation of the evidence of PWs1 & 2 recorded the finding of fact that the requirement of the landlords is bonafide. Applying the principles laid down by the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd.'s case, cited supra, this Court cannot re-appreciate the evidence while exercising jurisdictional power under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act. I do not find any merit in these revisions. In the result, both the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
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