S. Somaiah and Another vs S.P. Vasudevan

AR. Lakshmanan, J.—The tenants are the petitioners in the above civil revision petitions. The entire premises, which consist of ground floor

and first floor, belonged to the joint family of the respondent and his father S.G. Purushothaman. In the ground floor portion there are about eight

shops. The first floor portion was occupied by T.V.S. Workers Recreation Club. The entire building is a non-residential one. The petitioner S.

Somiah became a tenant in respect of the shop bearing Old No. 178/5 and new Door No. 280, Jawaharlal Nehru Street, Pondicherry. The

petitioner B. Vikraman became a tenant in respect of two shops in the ground floor bearing Old door Nos. 178/3 and 178/4 and New Door No.

278, Jawaharlal Nehru Street, Pondicherry. They became tenants under the father of the respondent.

According to the tenant B. Vikraman, he paid an advance of Rs. 1,00,000 and was paying a monthly rent of 1,900. He occupied the shops and

was carrying on Ready-made Garments business under the name and style of New Mangaldeep. He is now paying a monthly rent of Rs. 3,677.

The father of the respondent filed an application for eviction of both the tenants under the Pondicherry Buildings (Lease and Rent Control) Act

(hereinafter referred to as the Act) in the year 1982. Though he succeeded before the Rent Controller, he lost before the Appellate Authority and

this Court. His application for eviction against the tenants was ultimately dismissed.

The father of the respondent having failed to evict the tenants took it as a prestige issue and executed a sale deed in favour of the respondent, his

son, on 23.8.1990 where under he purported to sell Shop Nos. 278/3, 278/4 and 278/5 alone with the object of securing the eviction of the

tenants. The tenants were informed about the sale deed executed by the landlord in favour of the respondent herein. They attorned the tenancy in

favour of the respondent and was paying rent regularly. The respondent thereupon filed H.R.C.O.P. No. 104 of 1992 against the tenant S.

Somaiah in respect of Shop No. 5 and H.R.C.O.P. No. 112 of 1992 against B. Vikraman in respect of Shop Nos. 3 and 4, for eviction. The

respondent/landlord contended that he is a practising advocate, that he is at present carrying on his profession in the office of his senior, that he has

picked up good volume of work and that therefore he requires the three shops for the purpose of carrying on his legal profession. He contended

that though the shops are divided by partition walls, they can be removed and rendered suitable for carrying on his profession.

Both the tenants contested the applications contending that the alleged requirement of the respondent for his own occupation is not bona fide,

that at present he is carrying on his legal profession in the ancestral house at No. 54, Vysial Street, Pondicherry, that he is also residing therein

along with his parents, that there is no need nor any necessity for the respondent to shift his place of profession to the petition premises, which is

situate in a commercial locality and is most unsuitable for carrying on his profession as an advocate. The tenants further contended that on the

assurance given by the respondent''s father at the time of the commencement of the tenancy that the tenant B. Vikraman will not be disturbed, he

spent large sum of Rs. 5,00,000 for decorating the shop and is at present stocking goods worth Rs. 15,00,000. He also contended that if he is

evicted, he will be put to undue hardship and that the hardship that will be caused to the tenant would far out- weigh the advantage that will accrue

to the respondent.

The learned Rent Controller, by his common order dated 7.2.1993, allowed both the applications of the respondent and ordered eviction

against which the tenants filed M.A. Nos. 31 and 32 of 1993 before the Appellate Authority/Principal District Judge, Pondicherry, and the

Appellate Authority by order dated 10.3.1995 dismissed both the appeals confirming the order of eviction passed by the Rent Controller. The

tenants have filed the above revisions against the order of the Appellate Authority and have set forth their objections thereto in the memorandum of

grounds.

It is contended by Mr. A. L. Somayaji and Mr. K. Yamunan appearing for the tenants, that the claim of the landlord/respondent is not bona

fide, and that when the eviction proceedings were pending before the Rent Controller, the first floor portion in the same premises, which was

occupied by T. V. S. Workers Recreation Club, fell vacant and if really the need of the respondent is bona fide, he would have occupied the same

since it is more suitable for carrying on his profession and it belonged to his father. However, it is pointed out by both the learned counsel, that the

same has been let out to Informatic Computer Institute recently, which proves that the claim of the respondent lacks bona fides. Both the learned

counsel for the tenants contended that the tenants have invested large sums of money on the assurance given by the landlord at the time of inception

of tenancy that they will not be disturbed so long as they pay the rent regularly. The tenants have acquired valuable goodwill and also have large

outstandings to be collected and at this stage if they are evicted in execution of the order of eviction, they will be subjected to irreparable hardship

and injury.

Mr. A. L. Somayaji, learned Senior Counsel contended that the requirement of the respondent/landlord for carrying on his profession is not

bona fide since he refused to occupy the other portion which fell vacant, with a view to evict the petitioners/tenants. It is further submitted that the

upstairs portion is still vacant and is still under the control of the respondent and that the respondent will not be put to any loss or hardship if he

occupies that portion. On the other hand, if the tenant S. Somaiah is evicted, he will be put to great loss and hardship. He also pointed out that lack

of bona fides on the part of the respondent will disentitle him to seek for eviction under the Act. The orders of the authorities below are vitiated and

unsustainable.

Both the learned counsel for the tenants have also made the following submissions:

(a) The Appellate Authority has erred in holding that the claim of the landlord/respondent u/s 10(3)(a)(iii) of the Act is bona fide and in allowing the

application for eviction.

(b) The authorities below have completely ignored the previous at- tempt made by the father of the respondent/landlord for securing eviction of the

neighbouring tenant and his failure in the same.

(c) The sequence of events would only show that the present proceedings are only a continuation of the old attempt to secure eviction of the tenant

by creating self-serving documents and therefore, the authorities below should have drawn necessary inference from Exs. A-1 and A-24 that the

said documents had been brought into existence only for the purpose of evicting the tenants.

(d) The Appellate Authority has failed to appreciate that the petition premises is most ill-suited for carrying on legal profession of the

landlord/respondent whereas the place where he is at present carrying on his profession is more suitable one and that the alleged'' need of the

landlord for shifting his office is neither true nor bona fide.

(c) This apart, the landlord is the only son of his father and that he is living with his father in his ancestral house and that in the front portion of that

house, he is now carrying on his profession and under these circumstances, there cannot be any need nor necessity on the part of the

respondent/landlord to shift his place of profession.

(f) The conduct of the respondent/landlord in not occupying other shops whenever they fell vacant will only indicate that the claim of the

respondent is not bona fide.

(g) Therefore, they contended that on a consideration of the facts and circumstances, the authorities below should have held that the claim of the

respondent/landlord is not bona fide and should have dismissed the applications for eviction.

I have carefully gone through the pleadings, documents filed, evidence tendered by both parties and the judgments of the Courts below. The

evidence tendered by the landlord as P.W.I is convincing. Even in the cross-examination nothing has been elicited from P.W.I to discredit his

testimony. The revision petitioners are the tenants of non-residential portions presently owned by the respondent/landlord. The respondent

purchased the premises from his father under the sale deed dated 23.8.1990. After purchasing the property, the father of the respondent, who was

the erstwhile owner of the property, requested the revision petitioners to attorn the tenancy in favour of the respondent. Accordingly, the

petitioners attorned the tenancy and have been paying the rents to the respondent since September, 1990. It is the case of the respondent that he is

a practising advocate in Pondicherry since 1985 and that he requires the premises in question to have his office. It is also his case that he is having

his private practice in the office of his senior and having regard to the increase in the volume of work, he finds it difficult to continue his private

practice in the office of his senior and therefore, he wanted to establish an office of his own.

The tenants filed objections to the eviction petitions stating that the father of the respondent filed an eviction petition earlier and he was

unsuccessful in getting the order of eviction and therefore, he has sold the property and created a sale of the premises in favour of his son, the

respondent herein, so that the son could file eviction petitions against the petitioners herein on the ground of personal requirements. According to

the petitioners, the sale deed was executed with ulterior motive of evicting the petitioners. Therefore, they state that the case of the

respondent/landlord demanding eviction against the petitioners on the ground of personal occupation is mala fide and unjust.

According to Mr. K. Yamunan, his client B. Vikraman had given huge amounts of Rs. 1,00,000 by way of advance to the respondent''s father,

who had promised that he would not be evicted in the near future. It is further stated that the tenant B. Vikraman had invested huge amount on

decoration and designing of the shop on the strength of such promise and assurance.

On the basis of the oral and documentary evidence, the Rent Controller ordered eviction of the petitioners and directed them to deliver vacant

possession of the respective portions occupied by them to the respondent/landlord. Aggrieved by the said order, the petitioners/tenants preferred

appeals u/s 23 of the Act. Before the Appellate Authority, the petitioners raised the contention that the upstairs portion of the building is now lying

vacant and that the respondent/landlord can make use of the same for his office purposes. They filed a petition for receiving additional evidence

and the same was allowed. The tenant S. Somaiah examined himself before the Appellate Authority and the landlord also examined himself. The

Appellate Authority, after considering all the materials and the evidence, including the evidence adduced before him, dismissed both the appeals.

The contention of the learned counsel for the tenants is, that the premises is not required bona fide by the respondent/landlord. According to

them, the father of the respondent failed to evict the tenants on the ground of owner''s occupation and therefore, he devised a method to evict the

tenants by purporting to sell the property in favour of his son, the respondent herein.

Mr. A. L. Somayaji, learned Senior Counsel appearing for the tenant S. Somaiah, raised an additional contention that the Appellate Authority

has not considered the question of bona fide requirement in a proper and legal manner and therefore, the order of the Appellate Authority should

be set aside. Admittedly, the respondent''s father sold the premises bearing old Door Nos. 178/3 and 178/4 in favour of his son under a deed of

sale dated 23.8.1990. Soon after the sale, the father of the respondent by his letter dated 19.9.1990 intimated to the petitioners/tenants about the

sale of the premises in favour of the respondent and requested them to attorn the tenancy. The petitioners also attorned the tenancy in favour of the

respondent and have been paying rents and amenity charges to the respondent since September, 1990.

There is no dispute about the fact that the respondent is carrying on the profession of an advocate and that he requires the premises in question

for housing his office. According to the respondent, he is at present sharing the office of his senior to carry on his private practice with his consent

and that having regard to the increase in the volume of work and practice, the respondent would like to set up an independent office. Evidence has

been placed before the Rent Controller to show that the respondent has picked up good practice and that his clients would include Lakshmi Vilas

Bank Ltd., Karur Vysya Bank Ltd., Vysya Bank Limited and National Insurance Co., Ltd. The documents produced before the Rent Controller

prove beyond doubt that the respondent is having active independent practice. It is also not in doubt that the respondent is practising as a lawyer

since 1985. Hence, I am of the view, that the respondent has made out a case that he requires the premises for his personal occupation and for his

profession.

There is no substance in the contention of Mr. A. L. Somayaji and Mr. K. Yamunan, that the requirement of the respondent is not bona fide.

According to them, the father of the respondent, who was unsuccessful in evicting the petitioner/tenants, has purported to sell the property in

favour of his son, the respondent herein, with the sole object of evicting the petitioners/tenants. Hence it is contended that the sale itself is not bona

fide. This contention cannot be countenanced. Admittedly, the father of the respondent sold the premises in question under the registered sale deed

dated 23.8.1990 in favour of the respondent. The petitioners accepted the sale by the father in favour of his son, the respondent herein, and

attorned the tenancy in September, 1990, and have been paying the rents since then to the respondent.

Mr. A. L. Somayaji and Mr. K. Yamunan would urge that the sale consideration mentioned in the sale deed dated 23.8.1990 could not be

genuine and true since the respondent was only a student when the above sale deed was executed. However, the respondent would state that his

grand-father donate Rs. 40,000 and since he was a student at that time, the said amount was utilised by his father in his business and the interest

accrued thereon was periodically credited to the account of the respondent. The auditor of the father of the respondent was examined before the

Rent Controller and he has produced a certificate issued by his firm to the Income Tax Department. Income Tax returns submitted by the father of

the respondent from the assessment year 1977-78 to 1990-91 have been produced before the Rent Controller. There was no cross- examination

on this aspect. The Income Tax Inspector was also examined before the Rent Controller. Thus, it is clear that the respondent''s father owe to the

respondent a sum of Rs. 40,000/- right from 1977 and the accrued interest was periodically credited to the account of the respondent. Thus, there

is no substance in the contention of the tenants that the sale consideration mentioned in the sale deed was sham and that there was no consideration

for executing the sale deed.

I have also gone through the entire pleadings, records and the various documents produced by the landlord in support of his case and on such

perusal it is found that the landlord/respondent has fully proved his case. It is unbelievable to believe that even in the year 1977, the respondent and

his father designed a scheme to sell the premises in question to the respondent with a view to get the petitioners evicted. The Income Tax

assessment certificate and the Income Tax returns submitted by the father of the respondent since 1977 totally belies the case of the petitioners.

Therefore, I hold that there is no mala fide in the sale transaction between the respondent and his father and that the voluminous evidence produced

by the respondent/landlord fully support his case.

It is settled principle of law that if a landlord, whose application for eviction of his tenant is dismissed as not being bona fide, sells the building,

the purchaser is entitled to apply for eviction, and that the lack of bona fides on the part of the vendor (in this case, the father of the respondent)

would not affect the case of the purchaser for seeking eviction and that in such an application for eviction, the bona fide requirement of the

purchaser alone should be considered irrespective of the conduct of the vendor. It is contended by the tenant B. Vikraman that he gave huge

advance to the landlord because the respondent''s father promised that he would not be evicted in the near future and based on such promise, he

also invested huge amounts and decorated and designed the premises. If so, the tenant is at liberty to receive back the sum paid as advance after

adjusting the rents, if any, due.

As rightly pointed out by Mr. A. L. Somayaji and Mr. K. Yamunan, learned counsel appearing for the petitioners/tenants, it is undoubtedly

true that the Appellate Authority has not considered the question of bona fides on the part of the landlord in the correct perspective. However, that

cannot, in my view, be a ground for setting aside the order of eviction or remanding the matter to the Appellate Authority for fresh consideration

since the Rent Controller has thoroughly considered the evidence, both oral and documentary, and has rendered a clear finding that the

requirement of the respondent is bona fide. I have also gone through the oral and documentary evidence and I am satisfied that the order of the

Rent Controller cannot be faulted.

Before the Appellate Authority, a fresh ground was raised by the tenants stating that the upstairs portion of the premises in question belonging

to the respondent, which was occupied by T. V. S. Recreation Club, was vacant now and that therefore, the said upstairs portion, which is three

times bigger than the present premises, can be occupied by the respondent/landlord. The Appellate Authority allowed evidence to be adduced on

this aspect of the matter. The respondent/landlord stated that the upstairs portion, which fell vacant, belongs to his father and that he is not the

owner of the said portion. To support his case, the respondent has also produced documentary evidence. On a consideration of all the materials,

the Appellate Authority had come to the conclusion that the respondent is not the owner of the upstairs portion. This conclusion of the Appellate

Authority, in my opinion, is fully based on evidence and that no case has been made out warranting interference with the said factual finding in

revision proceedings.

Learned counsel for the tenants contended that this Court as a revision court has got enough power to appreciate the evidence and then come

to its own conclusion. It is true that the revision court while acting u/s 25 of the Act should not act as if it was sitting in appeal, appreciate the

evidence, weigh the same and by that process come to a different conclusion and reverse a finding of fact arrived at by the appellate court. But,

where the facts arc all admitted or proved, the question whether the conclusion reached on those facts is proper is within the purview of the

revisional jurisdiction u/s 25 of the Act. The language which defines the jurisdiction is of fairly wide scope, for, it is open in the exercise of such

jurisdiction to examine the propriety of the order. It is open u/s 25 of the Act to scrutinise the propriety of a finding of fact. The limit of such

scrutiny is only that of appreciation and weighing of evidence and coming to a different conclusion, which appertains to appellate power as

distinguished from revisional power u/s 25 of the Act. A conclusion, where it is perverse, will undoubtedly fall within the ambit of the revisional

jurisdiction. However, it is not proved in this case that the finding of the Courts below is perverse and therefore, this Court can interfere in this

revision.

In Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , the Supreme Court held that the concurrent finding of the Rent

Controller and the Appellate Authority such as regarding bona fide personal requirement of premises by landlord, is not open to interference by

High Court unless unreasonable resulting in miscarriage of justice. In the instant case, both the authorities below have ordered eviction for the

personal requirement of the premises by the respondent, fully based on the evidence adduced by the landlord that he did bona fide require the

premises for his profession work. The Supreme Court has also laid down that despite the wide language employed in Section 25 of the Act, the

High Court should not interfere with the findings of fact merely because it does not agree with the finding of the subordinate authority. If this ratio is

applied to the case on hand, I could not persuade myself to interfere with the finding of the authorities below as requested by the learned counsel

for the petitioners/tenants.

For all the fore-going reasons, I hold that there are no merits in the revisions. Accordingly, both the civil revision petitions are dismissed.

However, there will be no order as to costs.