http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: SRINIVASIAH

       Vs.

RESPONDENT: SRI BALAJI KRISHNA HARDWARE STORES

DATE OF JUDGMENT:       20/11/1998

BENCH: S.SAGHIR AHMAD, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT This is an application for review of our judgment in Sree Balaji Krishna Hardware Stores Vs.   Srinivasiah  [1998 (2) SCC 708] (Civil Appeal No.  638 of 1998) dated 6.2.1998. By  that  judgment, the Civil Appeal preferred by the tenant was allowed and the judgment of the  High  Court  of  Madras dated  30.8.97 was set aside and the eviction petition filed by the review petitioner (Landlord) was dismissed.   We  may state  that  eviction  was sought on the ground of bona fide requirement of the landlord for the business of his sons and eviction was ordered by the Rent Controller by his  judgment dated 25.1.1990 in R.C.O.P.    No.   2564 of 1986.  The said judgment was confirmed by the appellate authority in RCA No. 229 of 1990 on 18.3.1992.  These  judgments  held  that  the landlord  bona  fide  needed the shop occupied by the tenant for the purpose of his son’s business.  In the Civil Appeal, these judgments were set aside by this Court  on  the  short ground  that  behind the shop occupied by the tenant who was sought to be evicted, there was a shop-room which had fallen vacant and the landlord had not established that it was  not suitable for  his  son’s business.  This Court observed that the said shop could be reached from the  front-side  through the  passage  lying  between  the tenant’s shop on the right side and the shop on the  left  side  occupied  by  Srinivas Glass Agencies. The  point raised in the Review application was that this Court wrongly assumed  that  the  vacant  shop  on  the ground  floor  behind  the shop occupied by the tenant was a ’godown’ and was not a shop and that was also the  admission of  the  tenant  and also the finding of the Rent Controller and the appellate authority. On 1.4.1998, we ordered  notice in the review application. The tenant appeared and filed his counter in this application. We  may  state  here  that when the Civil Appeal was heard, this Court did not have the benefit of the  judgments of the Rent Controller and the appellate authority. The case was  argued  only  on  the basis of the Judgment of the High Court. The  said  Judgments  have  now  been  filed  by  the landlord  in  this review application. The landlord has also filed the oral evidence adduced before the  Rent  Controller

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

to  show  that  the tenant admitted in his evidence that the vacant portion behind the tenant’s shop was a ’godown’. In  this  review  application,  we  have  heard  the learned  counsel  for  the  review  petitioner  Sri   A.T.M. Sampath and the learned counsel for the respondent Sri K.Ram Kumar. We are of the view that  while  allowing  the  Civil Appeal  filed  by the tenant, we did not have the benefit of the findings  of  the  Rent  Controller  and  the  appellate authority  on this aspect inasmuch as the judgments of these authorities were not filed in the paper book.  Now  we  have had  the  advantage of looking into the said judgments which have been filed by the review petitioner.  We shall refer to the findings of the Rent Controller  and  of  the  Appellate authority.            The Rent Controller observed :            "RW1  has  admitted that the back-side portion in            question could be utilised only as a  godown  and            in  that  place, he cannot do any business, if it            is let out to him by the petitioner.  I  consider            that  since  the  above  back-side  area  can  be            utilised only as a godown, the petitioner has not            offered  the  same  to  his  son   for   business            purposes.            This fact of usage of godown has been admitted by            the respondent-RW1 as well".            The Appellate authority too observed :            "In  the above notice, the petitioner has further            stated that the portion on the  backside  of  the            petitioner  premises  is  not  fit and sufficient            enough for carrying on business on his  son,  and            that   therefore,   the  said  portion  could  be            utilised  as  a  godown..................and   no            averment has been made denying the above fact." In the light of these findings, it is clear that the other  premises  which  was  available  was not suitable for being used as a shop, it being in the nature  of  a  godown. In  fact, the tenant had said in his evidence, as noticed by the rent controller - that he was not prepared to  shift  to the  godown  even  if  offered,  inasmuch as it would not be possible to do any business there. The judgment rendered by  us  in  the  Civil  Appeal proceeded   on   the  assumption  that  the  said  available accommodation was in the nature of shop.   This  assumption, as shown  above,  was not correct.  The findings of the Rent Controller or the Appellate authority  above  set  out  that this  accommodation was in the nature of a ’godown’ were not brought to our notice as the concerned  judgments  were  not filed in  the  paper  book.    There  is,  therefore,  ample justification for interference in our  review  jurisdiction. We  accordingly accept the finding of the said tribunals and hold that the objection  raised  by  the  tenant  cannot  be sustained. For the aforesaid reasons, the  review  petition  is allowed  and the judgment in the Civil Appeal dated 6.2.1998 is set aside and the judgment of the High Court is restored. In the circumstances of the case, the tenant is granted time to vacate upto 31.5.1999 upon filing the  usual  undertaking within two weeks from today.  In case such an undertaking is not  filed within that period or in case any of the terms of the undertaking is violated, the order  granting  time  upto 31.5.1999  shall  stand  recalled  and  the  tenant shall be liable for eviction forthwith as per  the  judgment  of  the High Court.    There  will  be  no order as to costs in this review application.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3