A.Kannan vs Maheshwari
2021 Latest Caselaw 24922 Mad

                                                                                        CRP No.2890 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 17.12.2021

                                                            CORAM:

                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                                 CRP No.2890 of 2021 and
                                                 CMP.No.20846 of 2021 and
                                                  Caveat No.3851 of 2021

                     A.Kannan                                               ... Petitioner

                                                              Vs
                     Maheshwari                                                        ... Respondent
                     Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu
                     Buildings (Lease and Rent Control) Act, to set aside the Judgment and
                     Decree dated 17.09.2021, passed by the Rent Control Appellate Authority
                     viz., Sub-Court, Dharapuram in RCA.No.1 of 2018 reversing the Fair and
                     Final order dated 23.08.2018, passed by the District Munsif Judge,
                     Dharapuram in RCOP.No.3 of 2014.
                                             For Petitioner        : Mr.Ponambala Thiagarajan
                                                                     for Mr.S.Senthilkumar
                                             For Caveator          : Mr.S.Kalyanaraman

                                                          ORDER

The tenant is on revision aggrieved by the order of eviction granted

by the appellate authority reversing the findings of the learned Rent

Controller. RCOP.No.3 of 2014 was filed by the landlord seeking eviction on

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

the grounds of willful default, committing acts of waste, subletting and own

use and occupation under Sections 10(2)(i), 10(2)(a), 10(2)(iii) and

10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The

landlord claimed that the tenant is in possession of the premises for non-

residential purposes and the rent payable is Rs.11,100/- per month. It is also

her claim that she is a resident of Kottaiyam in Kerala, where she is

continuing the business that was carried on by her husband.

2.It is her case that her husband died and her daughter is pursuing

BDS course in Medical College in Salem and her son is pursuing his

education in Kerala. According to her, she would like to shift her native place

and carry on business at her native place namely, Dharapuram. Therefore, she

requires the premises for her own use and occupation. It was the further

contention of the landlord that the tenant has not paid the rent of Rs.11,100/-,

but has paid only Rs.4,000/- per month and therefore, there is a default. It

was also contended that the respondent/tenant is preventing people from

using the staircase to go for first and second floor of the buildings and hence

he has also preventing the landlord from letting out the other portion of the

property to others by preventing access to the first and second floors. The fact

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

that the tenant is carrying on tea shop business is projected as a reason for

causing damage to the building since the tenant using the ovens to make tea

through out the day.

3.This claim of the landlord was resisted by the tenant contending

that the rent was always only Rs.4,000/- and not Rs.11,100/- and the same

has been paid. Therefore, there is no default. The business of the tenant is

running a tea shop, therefore, he is bound to use oven/stoves throughout the

day and it cannot be said that such user would amount to acts of waste, which

is likely to affect materially the value and the utility of the building as

required under Section 10(2)(iii) of the Act. He would also denied the fact

that he is using the premises for other purposes. On the requirement of the

landlord for own use and occupation, the tenant would contend that the

requirement is not bonafide and the landlord being a resident of Kottaiyam in

Kerala is not likely to shift to Dharapuram.

4.The said ground, according to the tenant has been invented for

the purpose of eviction, despite there being no actual requirement. The fact

that the landlord did not plead such own use and requirement in the prior

proceeding namely, in the suit in O.S.No.355 of 2010 and in the application

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

filed by the tenant under Section 8(5) seeking deposit is also projected the

reason for lack of bonafide. The learned Rent Controller accepted the defence

of the tenant on all four grounds and dismissed the application for eviction.

The landlord preferred an appeal in RCA.No.1 of 2018.

5.The learned Appellate Authority while confirming the conclusion

of the Rent Controller on the ground of nuisance and committing of acts of

waste accepted the claim of the landlord on the ground of willful default and

owner's occupation. The Appellate Authority arrived at a conclusion that the

tenant has committed willful default and the landlord's requirements for own

use and occupation is bonafide. On the said conclusion, the Appellate

Authority allowed the appeal and ordered eviction. The learned Appellate

Authority also granted time to the tenant to vacate till March 2022 subject to

the tenant paying monthly rent of Rs.10,000/-. Thus, it is seen that the

Appellate Authority has exercised the power of suo motu revision of rent.

6.I have heard Mr.Ponambala Thiagarajan, learned counsel

appearing for the petitioner.

7.Mr.Ponambala Thiagarajan would submit that the Appellate Court

was not right in concluding that the tenant had committed default in payment

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of rent, on the sole ground that the procedure prescribed prior to invocation of

Section 8(5) of the Act was not strictly adhered to. As regards own use and

occupation, the learned counsel would contend that the landlord being a

resident of Kottaiyam and carrying on business there, the claim that she

requires the premises for starting a new business at Dharapuram cannot be

said to be bonafide.

8.The learned counsel would also state that the landlord has not

made any preparation for carrying on business at Dharapuram. He would also

point out that her parents are residing with her at Kottaiyam and therefore, the

claim that she wants to shift to Dharapuram itself is not bonafide. The learned

Appellate Authority had considered those objections and has held that though

the landlord is carrying on business at Kottaiyam, she has pleaded in the

petition that her daughter is doing Bachelor of Dental Surgery in a College in

Salem and her son is studying in school. After she lost her husband, she plans

to shift to Dharapuram, which is her native place, so that she will have the

support of her relatives. This claim, the learned Rent Controller held to be not

bonafide on the ground that her parents are staying with her in Kottaiyam.

9.The learned Appellate Authority has rightly analysed the evidence

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and requirements of law and has held that this claim of the landlord that she

wants to shift to her native place after her husband's death is bonafide and the

fact that her daughter is studying in Salem and her son is school student were

also taken into consideration by the Appellate Court to come to the

conclusion that the requirement is bonafide. As regards steps to be taken for

carrying on business, the Appellate Court held that the fact the landlord is

carrying on business at Kottaiyam is sufficient proof of her intention to carry

on business at Dharapuram.

10.The Appellate Court also noticed the provisions of Section 10(5)

which enable the tenant to re-occupy the premises, if the landlord does not

commence the business within one month from the date of taking possession

and continue it for a period of six months thereafter. In the light of the said

protection available to the tenant, the Appellate Authority concluded that the

landlord's claim is bonafide and ordered eviction on that ground also.

11.As regards the ground of willful default, it is clear to my mind

that the findings of the Appellate Authority cannot be sustained. Once an

application under Section 8(5) of the Act has been entertained and disposed

of, the tenant cannot be termed a willful defaulter for not merely because, he

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has not complied with the requirements that should precede the filing of the

application.

12.It is not in dispute that an application under Section 8(5) was

contested and it was allowed. The Appellate Authority cannot sit in appeal

over that order and decide the same in an appeal against the order rejecting

the claim of the landlord for eviction. Therefore, the conclusions of the

Appellate Authority on the ground of willful default cannot be sustained and

they are set aside. However, as far as the claim of own use and occupation is

concerned, I find myself in complete agreement with the findings of the

Appellate Authority. The Appellate Authority has referred to various decisions

of this Court and the Hon'ble Supreme Court, I am not repeating the same.

The law is settled that if the landlord requires a premises for his/her own

occupation and proves that the claim is bonafide, then eviction must follow.

The term bonafide is a concept. There cannot be a straight jacket formula to

fit in the requirements of bonafides.

13.In a case where the landlord is resident of outside the State and

wants to shift to her native place to start a business, the Court cannot insist on

her starting the business and then seeking an order of eviction for her to

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

continue the business or to shift the premises to her own place. The strict

interpretation of Section 10(3)(a)(iii) has been given a go by and Courts have

taken to liberal interpretation to include claims where the landlord intents to

start a business and intention is shown to be a bonafide.

14.In the case on hand, it is admitted that the landlord is doing

business at Kottaiyam and it is also admitted that she is a native of

Dharapuram. Her daughter is studying in Salem. Her son is in school. She

wants to shift to her native place after the death of her husband and continue

the business at her native place. There is nothing on record to doubt her

bonafides. Of course, Mr.Ponambala Thiagarajan, learned counsel appearing

for the petitioner would contend that landlord has not projected this

requirement in either the written statement filed in the suit or in the counter to

the 8(5) application, I do not think that alone could be a ground to doubt the

bonafide in a law. As already pointed out Section 10(5) protects the rights of

the tenant, if a landlord does not occupy the premises within a month after

obtaining the possession, it is open to the tenant to seek re-possession. With

such right available to the tenant, I do not think that the claim of the landlord

can be thrown out as not bonafide. I am unable to fault the Appellate

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Authority for having come to the conclusion that the requirement of the

landlord under Section 10(3)(iii) is bonafide and ordering eviction on that

ground. Therefore, the revision fails and it is accordingly dismissed.

15.It is seen that the Appellate Authority has granted time to the

tenant to vacate till the end of March 2022 on condition that he pays higher

rent. That stipulation is clearly beyond the powers of the Appellate Authority

and Mr.Kalyanaraman appearing for the Caveator is unable to support the

said conclusion or direction made by the Appellate Authority. Hence, that

portion of the order of the Appellate Authority requiring the tenant to pay a

higher rent for the period during which he will be in occupation of the

property is set aside. The tenant will continue to pay the rent at Rs.4,000/- per

month till he is evicted.

16.Considering the fact that the tenant is carrying on business, he is

granted eight months time to vacate the premises on condition that he files an

affidavit agreeing to vacate on or before 31st of August, 2022. Such affidavit

shall be filed on or before 07.01.2022. If the affidavit is not filed by

07.01.2022, it will be open to the landlord to execute the order of eviction as

if no time has been granted by this Court. It is made clear that the time

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

granted till end of March 2022 by the Appellate Authority is modified and

time is granted till 31.08.2022, subject to the condition that an affidavit of

undertaking to vacate by 31.08.2022 shall be filed before this Court on or

before 07.01.2022. No costs. Consequently, the connected miscellaneous

petition is closed.

17.12.2021

vs Index: No Speaking order

To:

1.The Rent Control Appellate Authority, Sub Court, Dharapuram.

2.The District Munsif Judge, Dharapuram.

3.The Section Officer, VR Section, Madras High Court, Chennai.

R.SUBRAMANIAN, J.

vs

https://www.mhc.tn.gov.in/judis CRP No.2890 of 2021

CRP No.2890 of 2021 and CMP.No.20846 of 2021 and Caveat No.3851 of 2021

17.12.2021

https://www.mhc.tn.gov.in/judis