However it is seen that door Nos. 75 and 76, Big Bazar Street, Kumbakonam is a property belonging to the joint family of which the petitioner is one of the coparceners, In that building, the joint family business in jewellery is being carried on. The Premises bearing door Nos. 75 and 76 Big Bazar Street, Kumbakonam cannot their therefore taken as the petitioner's building. Therefore the petitioner cannot be said to be carrying, on business in a building of his own. Unless the petitioner is carrying on a business in a building of -his own, he is entitled to seek eviction " on the ground in ' question that he requires the 'premises for the purpose of carrying on, his own, business. The fact that he has been carrying on the said business in the premises be" longing to the joint family does not disentitle him from getting his own building for the purpose of the business which he is, admittedly carrying on in cosmetics.
8. This position is clear form the decision of a Division Bench of this Court in Cr. P. No. 2343 of 1971in V. R. Jayaraman. N. S. Ramalingam., 1973 TLNJ 393. In that case, the landlord was carrying on a separate and independent business of his own in the premises belonging to a Hindu joint family of which he was a coparcener. When he applied for eviction in respect of the building belonging to him for the purpose of, locating his business it was resisted by the tenant on the ground that the land lord had been already in possession of a building of his own for his business' Admittedly the landlord had a share in the joint family property in which he was carrying on the business. This contention was rejected by the Division Bench holding that if, the property occupied for the business as a business of the landlord is a Hindu joint family property and not exclusively owned, by the petitioner-land lord, it can be taken that the petitioner was not occupying a building of his own and therefore he would be entitled to apply for eviction under S. 10(3)(a)(iii) for the two conditions set out therein, namely. (i) that the landlord is carrying on a business of his own, and (ii) that he is not occupying a non-residential building of his own are satisfied.
IN THE HIGH COURT OF MADRAS
C.R.P. No. 1497 of 1982
Decided On: 05.01.1984
Gopalakrishna Chettair Vs. W.K.A. Yakub Hussain
Hon'ble Judges/Coram:
G. Ramanujam, J.
Citation: AIR 1984 Mad 253
1. This revision is directed against the order of the Sub Court, Kumbakonam in C. M. A. No. 5 of 1982, setting aside the order of eviction passed by the Rent Controller against the respondent herein at the instance of the petitioner herein.
2. The petitioner is admittedly the owner of the premises which is occupied by the respondent as a tenant and in respect of which eviction has been sought for by him. The Petitioner who is the owner of the premises in question filed an application for eviction of the respondent who is a tenant, under S. 10(3)(a)(iii) of the Tamil Nadu Act 18 of 1960, as amended by Act 23 of 1973, on the ground that he requires the premises bona fide for his own use. The premises in question is a non-residential one and the case of the petitioner-landlord is that he requires the premises bona fide for carrying on his business which is being carried on in a premises not of his own in Kumbakonam town.
3. The said application for eviction was resisted by the respondent-tenant on various grounds of which the main ground is that the requirement of the landlord for his own use is not bona fide. To show that the application for eviction on the ground of owner's occupation is not bona fide, a reference has been made in the counter to certain earlier proceedings and the correspondence that was exchanged between the parties prior to the filing of the application to indicate that the intention of the landlord was to evict the respondent somehow and that the alleged requirement for the owner's occupation is only a ruse.
4. The Rent Controller after analysing the evidence adduced by both parties held that the requirement of the landlord of the premises for his own use is bona fide and therefore the petitioner is entitled to an order of eviction. In that view he directed eviction of the respondent from the Premises in question. On appeal by the tenant, the Appellate Authority however has held that the application for eviction filed by the petitioner cannot be taken to be bona fide even if it is taken to have been ' filed bona fide ' since the landlord requires the premises in question for the business of a partnership of which he is a partner, the building cannot be taken to be required for the landlord's own business and therefore the petitioner is not entitled to an order of eviction strictly under S. 10(3)(a)(iii). In this view, the Appellate Authority set aside the order of eviction, passed by the Rent Controller. Aggrieved by the order of the Appellate Authority, the petitioner is before this Court.
5. As already stated, the Rent Controller has held that the requirement of the landlord for his own use is bona fide. Of course, this finding is without reference to the question as to whether the petitioner would require the building for his carrying on a business in partnership with third parties and such a requirement will fall within the scope of S. 10(3)(a)(iii). or not. It is only the Appellate Authority who has held that the application filed by the petitioner under S.10(3)(a)(iii) cannot be maintained, as the requirement of the premises is nut for his own use but for the use of the partnership. The Appellate Authority also came to the conclusion that even otherwise the requirement of the landlord is not bona fide. Thus, the two questions that arise for the consideration of this Court are (i) whether the requirements of the petitioner of the premises for his own use is bona fide and (ii) whether, even if the bona fide is established, the petitioner can invoke Section 10(3)(a)(iii) whole the requirement is not for big own use but for the use of the partnership of which he, is a partner.
6. As regards the first question it is seen that the Appellate Authority proceeded to hold that the landlord's requirement for his own use is not bona fide, for the oblique purpose of filing such a petition is to get enhanced rent for the building. It is not in dispute that there has been a written lease deed Ext. A1, under which the tenant is liable to pay a monthly rent of Rs. 3501 for the premises, in question. The period set out in the lease deed is three, years; and after the period of three years, the lease deed itself provides for a higher rate of rent. It appears that immediately after the expiry of the period of lease referred to in Ext. At, the petitioner-landlord wanted the tenant to vacate the premises by means of a notice Ext. A4 dated 8-10-1979. In that notice no reference has been made to the requirement of the premises for the petitioner's own use and there is merely a demand on the tenant to vacate the premises after the expiry of the lease period. The non-reference to the petitioner's requirement of the premises for his own use in the notice has taken as the basis for the tenant's contention that the idea of requirement of the premises for his own use is only an afterthought and there is no bona fide in such requirement. I do not see how the non-reference in the notice issued by the petitioner calling upon the tenant to vacate the premises on the expiry of the lease period would show that the subsequent application for eviction on the ground of requirement for the owner's use can be said to be not bona fide. It may be that at the time when the notice was issued the landlord might have thought it unnecessary to refer to what use the building was going to be put by him. Therefore, merely because the requirement of the premises for his own use is not mentioned in notice Ext. A4, it cannot be said that the requirement of the landlord is not bona fide.
7. Another reason given by the Appellate Authority for holding that the requirement of the landlord is not bona fide is that the Petitioner himself is not definite about the nature of the requirement of the petition mentioned premises in respect of which eviction has been sought. According to the Appellate Authority, the petitioner has put forward different uses at different stages and he has not been, consistent as to the use to which the building was going to be put' The Appellate Authority has referred to the fact that in the eviction petition the petitioner has stated at one place that he requires the premises for locating the office and sale place and in another place he has stated that he requires the petition mentioned premises for housing the godown and in the third place that he requires the petition mentioned premises for the purpose of show room. I do not see how these three purposes, namely, having an office or selling place or show room will amount to different purposes. Even otherwise, factually there is no basis for the finding rendered by the Appellate Authority that the petitioner-landlord came forward with different versions at different stages. A perusal of the eviction petition filed by the petitioner will clearly indicate that be required the building for use as a show room, office and as a sale place and also as a godown. This is clear from the averments in para 4 of the petition. If in the eviction petition itself be has stated all the four purposes, namely, that the building is required for locating the office, show room and godown as well as the sale place, the Appellate Authority is not justified in saying that the petitioner: has come forward with difference it uses at different stages and therefore the cannot be take in to be definite about the purpose for which the building was to be used. So far as the finding of the Appellate Authority that the eviction has been sought only for the oblique purpose of getting a higher rent for the building is concerned, it is seen that at an earlier stage, the petitioner demanded a higher rent and that was agreed to by the tenant. But the fact that at a certain earlier stage there was a demand for higher rent will not debar the landlord from claiming eviction on the ground of bona fide requirement of the premises for his own a use for ever. Admittedly the petitioner has been carrying oil a separate business in partnership with others apart from the family jeweler business which is being carried, on in: door Nos. 75 and 76, Big Bazar, Kumbakonam. In the counter filed by the responds it has not been disputed that the petitioner has been carrying on business in partnership with others in the name and style of 'Super Sales Agencies' and is dealing in the sale of cosmetics and like other articles. The counter specifically admits the fact urn of the petitioner carrying on, a 'business in cosmetics. But the application for eviction has been resisted by the respondent on the ground that the petitioner is already using part of the premises in door Nos. 75 and 76. Big Bazar, Street. Kurnbakonam., for carrying on the said partnership business, Thus the factum that the petitioner is carrying on a business in partnership with others in the name of 'Super Sales Agencies' is not disputed. But the defence taken is that vehicle is using already door Nos. 75 and 76, Big Bazar Street, Kurnbakonam, as this business place, he does not any longer require the building in question for the same `purpose. However it is seen that door Nos. 75 and 76, Big Bazar Street, Kumbakonam is a property belonging to the joint family of which the petitioner is one of the coparceners, In that building, the joint family business in jewellery is being carried on. The Premises bearing door Nos. 75 and 76 Big Bazar Street, Kumbakonam cannot their therefore taken as the petitioner's building. Therefore the petitioner cannot be said to be carrying, on business in a building of his own. Unless the petitioner is carrying on a business in a building of -his own, he is entitled to seek eviction " on the ground in ' question that he requires the 'premises for the purpose of carrying on, his own, business. The fact that he has been carrying on the said business in the premises be" longing to the joint family does not disentitle him from getting his own building for the purpose of the business which he is, admittedly carrying on in cosmetics.
8. This position is clear form the decision of a Division Bench of this Court in Cr. P. No. 2343 of 1971in V. R. Jayaraman. N. S. Ramalingam., 1973 TLNJ 393. In that case, the landlord was carrying on a separate and independent business of his own in the premises belonging to a Hindu joint family of which he was a coparcener. When he applied for eviction in respect of the building belonging to him for the purpose of, locating his business it was resisted by the tenant on the ground that the land lord had been already in possession of a building of his own for his business' Admittedly the landlord had a share in the joint family property in which he was carrying on the business. This contention was rejected by the Division Bench holding that if, the property occupied for the business as a business of the landlord is a Hindu joint family property and not exclusively owned, by the petitioner-land lord, it can be taken that the petitioner was not occupying a building of his own and therefore he would be entitled to apply for eviction under S. 10(3)(a)(iii) for the two conditions set out therein, namely. (i) that the landlord is carrying on a business of his own, and (ii) that he is not occupying a non-residential building of his own are satisfied. In that case, it has also been pointed out that if the landlord is carrying a different business in another building, which is now his own, there is nothing in Section 10(3)(a)(iii) to debar him to have recourse to the provision in that section in respect of that business, even though he might be carrying, on another business, in a building of his own.
9. In the present case as already stated, in door Nos. 75 and 76, Big Bazar Street, Kumbakonam, the joint family is carrying on a jewellery business. Part of the premises has been used by the petitioner for carrying on his business in cosmetics. So long as the, petitioner is not in possession of any, building of his own for his own business which he is carrying on, apart froth 'the joint family business, he is entitled to invoke S. 10(3)(a)(iii)
10. The next question is whether the petitioner who is carrying on business in, partnership with others could seek eviction in respect, of the premises in question on the ground that he requires the premises for his own business. The contention advanced on behalf of the respondent is that the business for which the pre raises is required is a partnership business and not the petitioner's own business and, in such a case the petitioner cannot invoke Section 10(3)(a)(iii). Though this contention has been accepted by the Appellate Authority which held that the petitioner is not carrying on a business within the meaning of S. 10(3)(a)(iii) as then partnership business is not his own and therefore he is not entitled to ask for possession of the petition mentioned premises from the tenant, I am of the view that the view taken by the Appellate Authority, is not legally, tenable. This question is no longer reintegrate since it is conclusively decided by the Division Beach of this Court in V. Danmull v. Syed Ali, MANU/TN/0185/1969 : AIR1969Mad214 and that view has not been departed from so far by this Court. In that case also the landlord filed an application for eviction in respect of non-residential premises on the ground that he required the premises for his partnership business, The question arose whether the claim for eviction was covered by Section to (3)(a)(iii) . After referring to a series of earlier decisions the Court held 'that on the plain reading of Section 10(3)(a)(iii),, it was clear that it covered the claim of the landlord in that case for eviction. 'The landlord did not claim possession of any partnership property but his own property. The requirement of the premises for the business in which he was a partners will be covered by the said provision as the 'said provision does not require that the claim for eviction by the landlord should be for his exclusive business. The view taken in the above case has been followed by Nainar Sundaram J. in Raja lakshmi Ammal v. Piramanay-agam Pillai, MANU/TN/0338/1979 : AIR1979Mad147 . In that case also the scope and ambit of Section 10(3)(a)(iii) came up for consideration. One of the questions that arose in that case was whether the requirements of the premises for the business carried on by 'the landlords ii -partnership - with others date be equated with the requirement of the landlords themselves. Following the decision of, this Court., ruptured to above in Dan mull v. Syed AIL, AIR 196W Mad 214 : (1969) 1 Mad U 184, the-learned Judge held that a firm is not a legal entity and the partners composing the same, are principals'' and agents, mutually each partner carrying on business on behalf of the others and therefore each partner should be taken to carry on the business though of their partners way also have interest; and since the partnership is a business of the partners, the business is that of the partners, as a whole and it is not possible to spell out any limitation as, to the extent of the interest in the business should be taken to be a 'business which the landlords were carrying on for the purpose of Sec. 10(3)(a)(iii). According to the learned Judge such a construction of Section 10(3)(a)(iii) alone will be a reasonable one and will serve the object of the provision and therefore the requirement of the premises for the business carried on by the landlord in partnership with others should (not?) be equated with the requirement of the landlords themselves so as to attract Section 10(3)(a)(iii).
11. In the face of the above decisions, the view expressed by the Appellate Authority cannot be accepted as legally correct, Thus, on the facts and circumstances of the case, the petitioner is entitled to an order of eviction as the conditions set out in Section 10(3)(a)(iii) are fully satisfied. Tile civil revision petition is, therefore, allowed and the order of the Appellate Authority is set aside and that of the Rent Controller restored. There will be no order as to costs. The respondent will have two months' time for vacating the premises.
12. Petition allowed.
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