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PETITIONER: SREE BALAJI KRISHNA HARDWARE STORES

       Vs.

RESPONDENT: SRINIVASAIAH

DATE OF JUDGMENT:       06/02/1998

BENCH: S. SAGHIR AHMAD, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M. JAGANNADHA RAO, J.      Leave granted.      This appeal  has been  preferred by  the tenant against the Judgment  of the  Madras High  Court dated  30.8.1997 in C.R.P. No.  1857 of  1992 confirming  the order  of eviction passed by  the Rent  Controller in R.C.O.P. No. 2564 of 1986 dated 25.1.1990  as affirmed  by the  appellate authority in RCA NO.229 of 1990.      The eviction  petition was  filed  by  the  respondent- landlord under  the  Tamil  Nadu  Buildings  (Lease  &  Rent Control )  Act, 1960 no the ground that the non- residential premises is  required for  the landlord’s occupation namely, for the  partnership business of both of his sons Sekhar and Madangopal who  were doing  business in  a  rented  premises under the  name and  style of Sri Renuka Enterprises. During the pendency  of the  proceedings, Sekhar  retired from  the partnership. The  business was  continued by Madangopal. The appellant before  us is  the tenant  who  is  sought  to  be evicted. He  pleaded, inter alia that the requirement of the landlord was  not bonafide  and that  in any  event, several other  tenanted  portions  occupied  by  other  tenants  for business purposes  fell vacant  during the  pendency of  the proceedings and  the landlord was not acting bonafide in not using the same for the business of his son Madangopal.      Learned Single  Judge of  the High  Court observed that the lower  courts dealt with a question of res- judicata and did  not   squarely  deal  with  the  question  of  bonafide requirement. He  then proceeded to deal with the question of bonafide requirement  and held  that inasmuch  as these  two sons were  carrying on  business in a rented premises, their father was entitled to sue for possession. The learned Judge then dealt  with the  objection raised  by the  tenant  that certain other  shops of the landlord fell vacant as admitted by PWs  1 and  2 and  observed that  the said  witnesses had explained away this difficulty by saying that those portions which fell  vacant had  been given  and were occupied by the daughters-in-law  and   other  sons,  because  of  the  non- suitability of  the premises for the son’s business. He also observed that  it was  not the case of the tenant that those

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shops which so fell vacant were let out. Hence, according to the High  Court as  well as  the lower  Courts, it was to be assumed  that  the  portions  which  fell  vacant  were  not suitable for  the purposes of Madangopal’s business in glass and plywood.      It is  contended in  this appeal by the learned counsel for the  tenant the  tenant that  looking at the plan of the building ,  it has  a ground floor, first floor and a second floor.  On   the  ground   floor,  the  appellant-tenant  is occupying the  shop which is on the right - hand side facing the road.  There is  another tenant in the shop on the left- hand side  doing business under the nave and style, Srinivas Glass Agencies.  Both the shops face the road. hand side was one of the shops which had fallen vacant during the pendency of the  proceedings and which was said to have been given by the landlord  to his  daughters-in-law and other sons. There is a  passage running  behind the  shop  in  Srinivas  Glass Agencies, running  from the  front side,  upto the back side into the Godown.      The question  is, assuming  the landlord’s  requirement was bonafide,  whether the  landlord was  justified  in  not giving the above shop to his son Madangopal and giving it to his daughters-in  -law and other sons. It is not stated that the daughters-in-law  are having business and require a shop or that  their need  was greater  that of Madangopal. It has not been explained as to why the shop which could be reached from  the   front  side  through  the  passage  between  the appellant’s shop on the right and Srinivas Glass Agencies on the left,  was not suitable. In the appellant’s shop was not found  suitable,   we  are  constrained  to  hold  that  the conclusion of  Courts below that it was not suitable for the landlord’s son  business was  not tenable for the landlord’s son below  that it  was not  suitable for  the landlords son business  was   not  tenable.   Learned  counsel   for   the respondent-landlord said  that the shop was not abutting the road but was behind the front shop occupied by the appellant and could  be reached only through the passage between the 2 shops on  the front  side. We are unable to see why the said shop which  so fell  vacant, for  his son’s  business and in allowing his  daughters-in-law and  other sons  to  use  the same, was not bonafide. We accordingly allow the appeal, set aside  the  judgments  of  the  High  Court,  the  appellant authority &  the Rent  Controller and  dismiss the  eviction petition. The appeal is allowed accordingly.