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Judgment
S. Sardar Zackria Hussain, J.—The Revision Petitioners are the landlords. The landlords, who were unsuccessful before the learned Rent
Controller (XII Judge, Small Causes Court), Madras in seeking an order of eviction of the respondents/tenants from the petition premises, in filing
the Rent Control Original Petition No. 816 of 1993, on the ground of own use and occupation by way of additional accommodation, under the
order dated 1.4.1997 and as confirmed by the learned Rent Control Appellate Authority (VII Judge, Small Causes Court), Madras in R.C.A.No.
503 of 1997 as per judgement dated 21.2.2002, have filed this Civil Revision Petition.
Hariprasad Joshi, the husband of the 1st revision petitioner and father of the revision petitioners 2 and 3, filed the Rent Control Original Petition
seeking eviction of the respondents from the petition premises, namely, non-residential shop portion in the ground floor, bearing Door No. 13 (Old
No. 149), Nyniappa Naicken Street, Madras-600003, to an extent of 740 square feet (40 feet x 18-1/2 feet) let out to the 1st respondent,
namely, M/s. Pioneer Surgical Company, a partnership firm, of which the respondents 2 and 3 are the partners, who are father and son. It is stated
in the Rent Control Original Petition that the respondents are carrying on their business in the ground floor of the premises bearing old No. 149,
New No. 13, Nyniappa Naicken Street, Madras-600003 as tenants under the said Hariprasad Joshi/landlord. The said Hariprasad Joshi was
residing in the second floor of the premises No. 13, Nyniappa Naicken Street, Madras-3, and was carrying on business in Hardware, Iron and
Steel having its office in the second floor of the said premises No. 13, and also in the premises bearing door No. 14, Veerappan Street,
Sowcarpet, Madras-600079, wherein the said Hariprasad Joshi was having his sales office and also a small godown in the ground floor, measuring
about 180 square feet. The godown is not sufficient, since there has been increase in the business, and further, Veerappan Street Sowcarpet,
Madras-79 is not a hardware market area, while the petition premises is very near to Kandasamy temple, which is well known for hardware
market. The premises bearing door No. 14, Veerappan Street, Sowcarpet, Madras-79, is a rented premises. The said Hariprasad Joshi had been
carrying on the said hardware business under the name and style of Swathi Industrial Corporation, in partnership with his sister''s son Sridhar Bhat.
Though the respondents/tenants promised to vacate the petition premises, they have failed to do so. In the petition premises there are other
portions occupied by tenants, but those portions are very small and it is not possible to stock the hardware materials, like rods, etc. The petition
premises occupied by the respondents/tenants is a big one, and most suitable for the landlord''s hardware business, which consists of rods, angles,
sheets, etc.
During the pendency of the Rent Control Original Petition and after examined himself as P.W.1, Hariprasad Joshi died, the petitioners 2 to 4
have been added as his legal representatives.
The Rent Control Original Petition was resisted by the respondents/tenants in the counter. It is stated that the petition premises is a shop situated
in the ground floor, measuring 660 square feet, wherein the respondents have established a surgical instruments trade business, which is very
famous throughout Tamil Nadu. It is denied by the tenants that the landlord is carrying on business in the second floor of the petition premises. The
landlord is only residing in the second floor of the petition premises with his family members. It is further denied that the landlord is carrying on any
business or business of hardware, iron and steel in the premises at No. 14, Veerappan Street, Sowcarpet, Madras. There is no sale outlet or
godown in the ground floor of the said premises. However, Nyniappa Naicken Street, Madras is not known for hardware market and it is a
business place occupied by surgical equipment traders and pharmaceutical and industrial chemical traders. It is also denied that the landlord is
carrying on partnership business under the name and style of Swathi Industrial Corporation, and it is a business run by the relative of the landlord,
Sridhar Bhat. Sridhar Bhat has a shop in Veerappan Street and also another sale outlet at No. 79, Rasappa Chetty Street, Madras-600003. The
premises bearing No. 14, Veerappan Street, Madras-79 also belongs to the paternal grandmother of Sridhar Bhat. Since the landlord is carrying
on the business in his own premises, he is not entitled to file the Rent Control Petition for the reason stated by him. There are 11 other tenants in
the petition premises in all the three floors. The landlord is not carrying on the business in the petition premises as stated by him and he has no
stock of hardware materials, especially rods, sheets, angles and other commodities. Therefore, the requirement of the petition shop portion by the
landlord is without bona fide.
Before the learned Rent Controller, the said Hariprasad Joshi was examined as P.W.1, his nephew Sridar Bhat was examined as P.W.2 and the
son of Hariprasad Joshi, namely, the second revision petitioner was examined as P.W.3. Exs.P-1 to P-156 were marked on the side of the
landlords. The respondents/tenants examined the 2nd respondent as R.W.1 and marked Ex.R-1. Exs.C-1 to C-9 have also been marked.
The learned Rent Controller in consideration of such evidence, refused to accept the case of the landlords that the requirement of the petition
shop portion for own use and occupation by way of additional accommodation is bona fide and dismissed the Rent Control Original Petition. The
said order was confirmed by the learned Rent Control Appellate Authority in the Appeal preferred by the landlords and therefore, the landlords
have filed this Civil Revision Petition, challenging the dismissal of the Rent Control Appeal.
Learned counsel for the Revision Petitioners/landlords submitted that the fact, that the Rent Control Original Petition was originally filed by the
landlord Hariprasad Joshi(P.W.1), who was carrying on the business with his nephew, P.W.2, and the said business, on the death of Hariprasad
Joshi(P.W.1), is being carried on by his son, P.W.3 along with P.W.2, is amply established by the partnership deed, Ex.P-1 dated 26.3.1990 and
other documents, Exs.P-2 to P-156, more particularly, Ex.P-156, namely, the deed of partnership entered into between B.Sridhar Bhat (P.W.2)
and P.W.1''s son Satish H.Joshi (P.W.3), in respect of M/s.Swathi Industrial Corporation. Learned counsel further submitted that it is established
by P.Ws.1 to 3 and from Exs.P-1 to P-156 that the said partnership firm, M/s.Swathi Industrial Corporation, being carried on at premises No. 14,
Veerappan Street, Sowcarpet, Chennai-79, is not sufficient to do the business of the revision petitioners, especially the godown therein is small to
keep the iron rods, angles, sheets, etc., and so the petition shop portion situated in the ground floor of the said premises, measuring 660 square
feet is bona fide required as additional accommodation by the revision petitioners/landlords for the said business now carried on by the 2nd
revision petitioner(P.W.3), on the death of his father, P.W.1, who filed the Rent Control Original Petition originally, and died after examining
himself as P.W.1. Learned counsel for the revision petitioners/landlords further submitted that it is not for the respondents/tenants to dictate the
landlords as to which of the portion is suitable for their own use and occupation by way of additional accommodation.
Learned counsel for the revision petitioners also relied on the decision in A.L.O. Gopal Sah, A.M. Surendar Sah and A.M. Sanjaykumar Sah
Vs. K.P.M. Musthaffa, K.P.M. Shagul Hameed and M.K.S. Siraj Unnissa, in which this Court has held thus:-
Section 10(3)(e) of the Act contemplates, that the Controller shall satisfy that the claim of the landlords is bona fide, then only he is empowered to
make an order, directing the tenants to put the landlord in possession of the premises. This bona fide contemplated, in my considered opinion, need
not have an acid test, creating unnecessary doubt then and there, compelling the landlords to answer each and every doubt raised by the tenants, in
view of the inbuilt provisions in the Act, safeguarding the interest of the tenants, even after eviction order is passed, provided, the conditions are not
complied with.
Sub-section 5(a) of Section 10 of the Act mandates, the landlord to occupy the building for the purpose, it is sought for, within one month. It also
further directs, that after occupation, he could not vacate it, without reasonable cause within six months, from the date of occupation. If these
conditions are violated, Sub-section 5(b) gives the right to the tenants, to apply for possession. Section 33(1-A) provides punishment, in case of
violation of the above said condition. In this view, though as mandated u/s 10(3)(e) of the Act, bona fide must be established, it need not be so
rigid, unless a mala fide is made out, either by implied conduct of the landlord or by any other action taken by the landlord, then having failed,
taking this section as a ruse, to get an order of eviction.
Learned counsel for the respondents/tenants submitted that the landlord Hariprasad Joshi, who originally filed the Rent Control Original Petition,
namely, P.W.1, was not carrying on business in partnership with his nephew, P.W.2, and on the death of P.W.1, the said business is not carried on
by his son P.W.3, the 2nd revision Petitioner, along with P.W.2 and therefore, the requirement of the petition shop for own use and occupation by
way of additional accommodation by the revision petitioners/landlords is mala fide. It is also submitted by the learned counsel that the petition shop
is not suitable for the hardware business alleged to have been carried on by the revision petitioners/landlords. Learned counsel also pointed out that
the said hardware business in the name and style of M/s.Swathi Industrial Corporation, said to have been carried on by the revision
petitioners/landlords in partnership with P.W.2 B.Sridhar Bhat, has not been established, and, therefore, according to the learned counsel for the
respondents/tenants, since the landlords have not proved their case that the requirement of the petition shop is bona fide, for their own use and
occupation by way of additional accommodation, the dismissal of the Rent Control Original Petition filed by the landlord Hariprasad Joshi(P.W.1)
for eviction of the respondents/tenants on the ground of bona fide requirement for own use and occupation by way of additional accommodation,
as confirmed by the learned Rent Control Appellate Authority, does not call for any interference.
The petition premises is a non-residential shop portion in the ground floor bearing door No. 13(old door No. 149), Nyniappa Naicken Street,
Madras-3, in which, the first respondent firm as tenant is carrying on business consisting of the respondents 2 and 3 as partners in the name and
style of M/s. Pioneer Surgical Company. According to the revision petitioners/landlords the total extent of the petition premies is 740 square feet
(40 feet x 18-1/2 feet) and according to the tenants, it is 660 square feet. In the ground floor, besides the respondents, three other tenants and in
the first floor, there are six tenants and the entire second floor is occupied by the landlords for residential purpose and the entire building belongs to
the landlords. Further, according to the landlords, P.W.1, Hariprasad Joshi, who originally filed the Rent Control Original Petition, husband of the
first revision petitioner and father of the revision petitioners 2 and 3, was carrying on business in the name and style of Swathi Industrial
Corporation with his nephew P.W.2 Sridhar Bhat and after his death now by his son P.W.3 with P.W.2 and such business carried on by them in a
rented premises at No. 14, Veerappan Street, Sowcarpet, Madras-79 wherein they have sales office and a small godown in the ground floor
measuring about 18 x 18 feet and in addition they are having office of the said firm in a portion in the second floor at No. 13, Nyniappa Naicken
Street. Since, there have been increase in the business and the godown at Veerappan Street is not sufficient, the petition shop is bona fide required
for own use and occupation by way of additional accommodation of the partnership business carried on by them at No. 14, Veerappan Street,
Sowcarpet, Madras-79 and also in the second floor at No. 13, Nyniappa Naicken Street, Madras-3.
Such requirement was resisted by the tenants/respondents on the ground that P.Ws.2 and 3 are not carrying on partnership business in the
name and style of Swathi Industrial Corporation in a rented premises bearing door No. 14, Veerappan Street, Sowcarpet, Madras-79 and even
assuming they are carrying on business, it is only in the building owned by paternal grandmother of P.W.2, viz., mother-in-law of P.W.1''s sister.
Further, it is also resisted that next to the building bearing No. 14, Nyniappa Naicken Street, Sowcarpet, Madras-79 also owned by P.W.1,
which is vacant and therefore, the requirement of the petition shop cannot be said to be bona fide.
In order to prove that P.W.1 and his nephew P.W.2 were carrying on partnership business in the name and style of Swathi Industrial
Corporation, several documents have been marked on the side of the landlords, among which, Ex.P-1 dated 26.3.1990 is the partnership deed.
As per Ex.P-1, it transpires that they are carrying on such partnership business from the year 1984 onwards and such partnership was reduced
into writing as per the said document. As per the said document Ex.P-1 the residential address of P.W.2 is given as No. 14, Veerappan Street,
Madras-79. The firm has joint account in the Union Bank of India as it can be seen from Ex.P-2, in which it is stated that P.W.1 and P.W.2 are
partners of M/s.Swathi Industrial Corporation and the partnership firm is having banking with them since 29.11.1984. It is admitted by P.W.2 that
No. 14, Veerappan Street is owned by his paternal grandmother. It is also admitted by the tenant R.W.1. From that, no inference can be drawn
that the said building is owned by P.W.2 or that he has got any right in that building. To show that the premises bearing door No. 14 is occupied
by the Swathi Industrial Corporation and owned by the paternal grandmother of P.W.2, as tenant, Exs.P-4 to P-6, rental receipts issued by
Meenakshi Bai, paternal grandmother of P.W.2 have been marked.
It is stated by R.W.1, second respondent that P.W.2 was carrying on business in the name and style of Swathi Industrial Corporation in his
individual capacity and not in partnership with P.W.1 and on the death of P.W.1, such business is not carried on by P.W.2 along with P.W.3, who
is the son of P.W.1. To show that P.W.1 has not carried on business in a portion in the second floor at No. 13, Nyniappa Naicken Street as
claimed by him, Ex.R-1 has been marked. Much reliance cannot be placed upon Ex.R-1, a postal returned cover addressed to M/s.Swathi
Industrial Corporation, Second Floor, 13, Nyniappa Naicken Street, Madras-3, since R.W.1 himself has admitted that he found the name board
in the second floor of the said building as ""Swathi Industrial Corporation"".
In Ex.C-3, the statement made by P.W.2 to DCTO, Peddunaickenpet (South) on 30.11.2004, he has stated that he is carrying on partnership
business with Hariprasad Joshi(P.W.1) in the building bearing No. 13, Nyniappa Naicken Street, Madras-3 owned by P.W.1 and the other
building at No. 14, Veerappan Street is owned by his grand mother Meenatchi Bai. Therefore, even as early as on 30.11.1984, P.W.2 asserted
that he was carrying on partnership business with his uncle P.W.1 and accordingly they made application for registration under the Tamil Nadu
General Sales Tax Act as it can be seen from Ex.C-4 giving their banker as Union Bank of India, Sowcarpet Branch, Madras-3. They also
described the same in Form IX under Ex.C-5 given to the Sales Tax Department. Registration certificate was also issued under Ex.C-6 dated
27.12.1984 giving the business address at No. 14, Veerappan Street. Ex.C-8 is the Commercial Tax Assessment Order dated 31.12.1991 for the
assessment year 1990-91 and Ex.C-9 dated 31.1.1995 is the Commercial Tax Assessment Order for the year 1993-94. In Exs.C-8 and C-9 the
address of Swathi Industrial Corporation is given as No. 14, Veerappan Street, Madras-79 and it is also stated that the corporation is represented
by Sridhar Bhat, Partner of the Corporation.
Ex.P-9 is the Certificate of Registration for the period 1984-85 and the business address is given at No. 14, Veerappan Street in the name and
style of Swathi Industrial Corporation. Ex.P-7 series purchase bills in the name of Swathi Industrial Corporation and Ex.P-8 series sales bills by
the Swathi Industrial Corporation, are filed to show that the said business is carried on by the Head Office at No. 14, Veerappan Street and
Branch Office at No. 13, Nyniappa Naicken Street as early as from 1984 onwards. Merely because, signatures of P.W.1 are not available in
Ex.P-7 series and Ex.P-8 series, it cannot be said that the business was not carried on by P.W.1 in partnership with his nephew P.W.2.
Exs.P-11 to P-75 are the sales bills by Swathi Industrial Corporation, relating to the year 1992. Exs.P-76 to P-113 are the sales bills by
Swathi Industrial Corporation relating to the year 1993. Exs.P-114 to P-129 are the sales bills by Swathi Industrial Corporation relating to the
year 1994. Exs.P-130 and P-131 are the sales bills by Swathi Industrial Corporation relating to the year 1995. From Exs.P-11 to P-131, sales
bills, it is clear that the said business is carried on by the Head Office at No. 14, Veerappan Street and Branch Office at No. 13, Nyniappa
Naicken Street as early as from 1992 onwards.
Exs.P-132 to P-137 are the purchase bills of Swathi Industrial Corporation relating to the year 1992. Exs.P-138 to P-143 are the purchase
bills of Swathi Industrial Corporation relating to the year 1993. Exs.P-144 to P-147 are the purchase bills of Swathi Industrial Corporation relating
to the year 1994 and Exs.P-148 to P-151 are the purchase bills of Swathi Industrial Corporation relating to the year 1995. In purchase bills
Exs.132 to P-151 the address of Swathi Industrial Corporation is mentioned as No. 13, Second Floor Nyniappa Naicken Street, Madras-3.
Ex.P-152 is the Commercial Tax assessment order dated 31.1.1995 for the assessment year 1993-94. Ex.P-153 dated 29.11.1993 is the
Commercial Tax assessment order for the assessment year 1992-93. In Exs.P-152 and P-153 the address of the Swathi Industrial Corporation is
mentioned as No. 14, Veerappan Street, Madras-79.
Ex.P-154 is a letter addressed to Swathi Industrial Corporation by the Stores Officer-II of SHAR CENTRE, Sriharikota Range, Nellore
District, Andra Pradesh, in which the address of the Swathi Industrial Corporation is mentioned as 13, Nyniappa Naicken Street, Second Floor,
Madras-3.
Ex.P-155 dated 18.10.1996 is the copy of partnership deed between Sridhar Bhat(P.W.2) and P.W.3, son of P.W.1 and as per the said
deed both became partners to carry on business in the name and style of Swathi Industrial Corporation, on the death of P.W.1 on 10.10.1996.
Therefore, it is clear that P.W.1 and P.W.2 were carrying on partnership business in the name and style of Swathi Industrial Corporation from
1984 onwards at No. 14 Veerappan Street, which building is owned by the paternal grandmother of P.W.2, being Head Office and also in the
portion in the second floor at No. 13, Nyniappa Naicken Street which building is owned by P.W.1 being Branch Office and after the death of
P.W.1, now it is carried on by P.W.2 and P.W.3, who is the son of P.W.1.
R.W.1, the second respondent(tenant) admitted in his evidence that his shop is big shop which area according to him is 600 square feet
whereas according to the landlords 740 square feet and it is facing the road side and which has been rented to the respondents for their business. It
is admitted by R.W.1 in his cross-examination that door No. 14 is behind his shop and the passage leading to door No. 14 is 2-1/2 feet width
which is a small lane. Therefore, the shop or godown at door No. 14 may not be suitable for the hardware business which is carried on by P.Ws.2
and 3 in the name of Swathi Industrial Corporation at No. 14, Veerappan Street.
As regards the case set out for the tenants that P.W.2 has another sale outlet at No. 79, Rasappa Chetty Street, Madras-3, besides the shop
in Veerappan Street and the said premises is also owned by P.W.2, such a case has not been proved by the tenants.
Though it is stated that door No. 14, Nyniappa Naicken Street also belongs to P.W.1, such a case has not been proved. R.W.1 admitted in
his cross-examination that door No. 14 belongs to Parvathi Bai and P.W.1, Hariprasad Joshi is her son.
Further, it is not for the tenant to dictate as to which of the portion the landlord can occupy. It is well settled that the landlord has got every
right to choose which of the portion or shop is suitable for own use and occupation either for residential or non-residential purpose. The petition
premises bearing door No. 13, Nyniappa Naicken Street, Madras-3 in the ground floor and facing the road is most suitable for the hardware
business wherein hardware materials such as rods, sheets, angles and other commodities can be stored.
As such, it is clear that the landlords have proved that P.W.1 was carrying on partnership business along with P.W.2, and on the death of
P.W.1, P.W.3, son of P.W.1 is carrying on the partnership business along with P.W.2 in the name of Swathi Industrial Corporation in the rented
premises No. 14, Veerappan Street, Madras-79 and also in the portion in the second floor at No. 13, Nyniappa Naciken Street, Madras-3.
Even assuming that the business is not carried on in the portion in the second floor at No. 13, Nyniappa Naicken Street, inasmuch as it is
admitted that the landlords have been residing in the second floor they can seek the other part of the building, viz., the petition shop in the ground
floor for the purpose of business now carried on by them at No. 14, Veerappan Street, Chennai-79.
Therefore, the landlords have amply proved that the petition shop is bona fide required for own use and occupation by way of additional
accommodation for the partnership business which was carried on by P.W.1 along with P.W.2 and on the death of P.W.1, his son P.W.3 along
with P.W.2 is doing the partnership business in the name and style of Swathi Industrial Corporation at No. 14, Veerappan Street.
The tenants are carrying on business in the petition shop dealing in all surgical equipment for the past more than 25 years. With regard to the
relative hardship that will be caused to the tenants, if they are evicted from the petition shop, inasmuch as it is a reputed firm for such a long period
of 25 years, such a case is unacceptable, since they can secure another rented premises to continue the business in the same area, if any, or in the
city of Madras. On the other hand, since the landlord, viz., P.W.1 was carrying on partnership business along with his nephew P.W.2 and on the
death of P.W.1 now P.W.1''s son P.W.3 along with P.W.2 are carrying on the partnership business in the name and style of Swathi Industrial
Corporation in the rented premises at No. 14, Veerappan Street, Madras-79 and also in a portion in the second floor No. 13, Nyniappa Naicken
Street, Madras-3, much hardship will be caused to them, if they are unable to secure their own petition shop. If the landlords are able to secure the
petition shop, such advantage in getting the own premises, will outweigh the hardship that will be caused to the tenants.
Therefore, for the above said reasons, the requirement of petition shop for own use and occupation by way of additional accommodation for
the landlords, is bona fide and the advantage in getting such premises will outweigh the hardship which may be caused to the tenants, if they are
evicted from the petition shop. The learned Rent Controller and the learned Rent Control Appellate Authority have not considered all these aspects
and misdirected themselves in refusing to order eviction as sought for by the landlords for own use and occupation by way of additional
accommodation and as such, the denial of eviction by the learned Rent Control Appellate Authority being erroneous is to be set aside.
In the result, this Civil Revision Petition is allowed. No costs. The order dated 21.2.2002 in R.C.A.No. 503 of 1997 passed by the learned
Rent Control Appellate Authority is set aside. The Rent Control Original Petition in R.C.O.P.No. 816 of 1993 is allowed.