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PETITIONER: V. RADHAKRISHNAN

       Vs.

RESPONDENT: S.N. LOGANATHA MUDALIAR

DATE OF JUDGMENT:       05/08/1998

BENCH: A.S. ANAND, B.N. KIRPAL, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The  appellant  is  the  tenant  of  a  non-residential building of  which  the  respondent  is  the  landlord.  The respondent filed  an eviction  petition in  the court of the Rent controller,  chengalpattu  on  two  grounds,  i.e.  (1) wilful default  in payment  of rent by the appellant and (2) bonafide  personal  requirement  of  the  landlord  for  the purpose of setting up his son’s business.      On  a   perusal  of  the  evidence,  the  learned  Rent controller held  that there was no wilful default in payment of rent  and also  that the landlord had not established his bonafide personal  requirement. Vide order dated 22.11.1990, the  eviction   petition  was,   therefore,  dismissed.  The respondent challenged  the  order  of  the  Rent  controller before the  appellate  authority.  The  appellate  authority agreed with  the Rent  controller that  there was  no wilful default in  payment of  rent on  the part  of the tenant but held that  the ground  of bonafide  personal requirement had been established  by the  landlord and  passed an  order  of eviction, setting  aside the  order of  the Rent  controller vide judgment  dated 31.1.1992.  The order  of the appellate authority was  put in  issue by  the  tenant  through  civil revision petition  No.  863/92  before  the  High  Court  of Madras. A learned Single Judge of the High Court agreed with the findings  recorded by  the appellate  authority and held that  the   landlord  had   established  bonafide   personal requirement and  vide judgment  and order  dated 24.12.1996, upheld the  order of  the appellate  authority  and  ordered eviction of the tenant.      Aggrieved, the tenant is before us by special leave.      The short  question, that requires our consideration is with regard  to the  scope and  interpretation of Section 10 (3)(a) (iii)  of the  Tamil Nadu  Buildings  (Lease  &  Rent Control) Act, 1960 (hereinafter the Act.) That Section reads thus :           "10   (3) (a)  -  A  landlord,      may, subject  to the  provisions of      clause (d), apply to the controller      for an  order directing  the tenant      to put  the landlord  in possession

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    of the building-           (iii) In  case any  other non-      residential   building,    if   the      landlord  or   any  member  of  his      family   is   not   occupying   for      purposes of  a business which he or      any  member   of  his   family   is      carrying  on,   a   non-residential      building  in   the  city,  town  or      village concern which is his own;      Before examining  the scope  and interpretation  of the Section, we  would like to advert to the findings of fact as recorded by  the appellate  authority and upheld by the High Court.      It has been found as a fact that the landlord had filed the eviction  petition on  the ground  that the  premises in question were  bonafide required  by him  for setting up the business of  his son. It has also been found that the son of the landlord  was earlier  doing  his  business  in  a  shop belonging to  his Uncle (brother of the landlord) on payment of a  monthly rent  of Rs. 300/-. It has further been found, as a  fact, that  the son  of the landlord had to leave that shop and  he started to do business along with his father in a non-residential  premises owned  by the father. The courts below have also found that the son did not occupy or own any non-residential building of his own.      According to  Mr. Sundaravardan, learned senior counsel appearing for  the appellant,  the landlord  had  failed  to establish  any  bonafide  personal  requirement  of  himself inasmuch as  he  was  in  occupation  of  a  non-residential building from  where he  was carrying  on his  business and, therefore, he  was not  entitled to  seek  eviction  of  the tenant for  the purpose  of setting  up the  business of his son. It  si submitted that so long as the landlord owned and occupied a  non-residential  building,  he  could  not  seek eviction of  the tenant  only for setting up the business of his son.  reliance in  this behalf  is placed by the learned counsel on  a judgment  of a  learned Single  Judge  of  the Madras High  Court in  R. Jagannatha Chettiar Vs. Swarnambal (97 L.W. 182) wherein the learned Single Judge took the view that  occupation   by  the  Landlord  of  a  non-residential building of  his own  was sufficient  to disqualify him from claiming any other residential building in the occupation of a tenant  even, if  the same was required for the benefit of any other member of his family.      Mr. Bhat, Learned counsel appearing for the respondent, on the  other hand, submitted that the bonafide requirement, as contemplated  by Sub-Clause (iii) has to be read so as to mean that  the person  for whose  benefit the  premised  are sought for,  should not  be occupying or owning any building of his  or her  own and  not hat  the landlord should not be owning or  occupying a  building of his own. Learned counsel in support  of his  submission relies  upon the judgments of Madras High  Court in  A.S. Kannan Vs. S.C.M. Zackeriya (100 L.W. 213)  and Messrs.  Indian Plywood Manufacturing Co. Vs. Balaramiah Chetty  (99 L.W.  49). Reliance is also placed by him on  Kolandaivelu Chettiar  Vs. Koolayana  Chettiar (1961 (1) MLJ  184) and  on M/s.  Annamalai and Co. by its partner S.S. Sundaram  Chettiar Vs.  Sital Achi  (1975 (1) MLJ 337), wherein while  interpretating Section 10(3) (a) (iii) of the Tamil Nadu  Buildings (Lease  & Rent Control ) Act, 1960, as amended in 1973, the learned Single Judge held:           "Thus here also in the case of      eviction of  a tenant  from a  non-      residential building  the condition

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    to be  satisfied is that the person      for whose  business the building is      required shall not be in occupation      of a  non-residential  building  of      his  own.   In  other   words,  the      landlord  though   he  may   be  in      occupation  of   a  non-residential      building   for   purpose   of   his      business, could  apply for eviction      of a  tenant in  respect of another      non-residential     building     if      required  for   the  purpose  of  a      business which  any member  of  his      family is  carrying on provided the      person for  whose benefit  the non-      residential building  was  required      by the  landlord is  not already in      occupation    of    non-residential      building  of  his  own.  Any  other      construction in  my  opinion  would      nullify  the   amendment   of   the      section  by   introduction  of  the      words ’any member of his family’."      In A.S.  Kannan’s case  (supra), it  has been laid down that when  a premises  is sought for by the landlord for the benefit of  any member of his family, it is only that member of the  family for  whose benefit  the premises are required who should  not be  occupying the premises of his or her own and the fact that the landlord occupies premises of his own, can not  disentitle  him  from  claiming  eviction  for  the benefit of  a member  of his family, who does not occupy any premises of his own.      In M/s.  Indian Plywood  Manufacturing Co.  (supra), it was held that under Section 10 (3) (a) (iii) of the Act, the landlord can  apply for eviction of the tenant if the person for whose  benefit the non-residential building is required, is not  already in  occupation of a non-residential building of his own.      In chettiar’s  case (supra), it has been laid down that a father can certainly file an application for eviction when he requires the premises to set up a separate family for his second son  when his  son is  not  occupying  a  residential building of  his own  in the  place concerned. This was case under Section 10 (3) (a) (i) of the Act and those provisions are in  pari-materia with  the provisions  of Section 10 (3) (a) (iii) of the Act.      On a  plain reading  of Section  10(3) (a) (iii) of the Act, it  appears to  us that the legislature intended that a landlord seeking eviction of the tenant could be disentitled from claiming  possession of  the  non-residential  premises where he  requires those  premises for his own use, if he is occupying a  non-residential building of his own. similarly, the  landlord   would  also  be  disentitled  from  claiming possession of  non-residential premises for the benefit of a member of  his family,  if that  member of the family was in occupation of non-residential building of his own. Any other interpretation of  this Section  would  not  only  be  doing violence to  the plain  language of  the Section  but  would result in absurdity inasmuch as the benefit of the provision would stand  denied to  the family  members of the landlord, who do  not occupy  any premises  of their own and for whose benefit eviction  is sought,  if the  landlord himself is in occupation of  a non-residential  premises of  his own.  The fact that  the landlord,  who seeks eviction for the benefit of a member of his family is himself occupying a building of

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his own,  cannot operate  as a  bar to  the landlord seeking eviction for the benefit of a member of his family, who does not occupy  any premises of his own. Thus, it follows and we hold that  the  laid  down  in  Jagannatha  Chettiar’s  case (supra) is  not the correct law. The learned Single Judge in Chettiar’s case did not notice, let alone consider the three earlier judgments  in 99  L.W. 49;  1961 (1)  M.L.J. 184 and 1975 (1)  M.L.J. 337.  In  our  opinion,  the  judgments  in Kannan’s case,  Indian Plywood Manufacturing Company’s case, K. Chettiar’s  case and Annamalai and Company’s case (supra) lay down the correct law, which we hereby approve.      In view  of the above discussion, no fault can be found with the  judgments delivered by the appellate authority and the High  Court holding  that the  landlord was  entitled to seek eviction  of the  tenant to  set up the business of his son who  was not  in occupation of any other non-residential premises of  his own  in the  area. This  appeal, therefore, fails and is dismissed but without any order as to costs.      Mr. Sundaravardan,  learned senior counsel submits that the appellant  and his father have been in occupation of the demised premises  for more than fifty years. He submits that sufficient time  may be  granted to  the appellant to vacate and hand  over the  vacant possession of the premises to the respondent. Mr.  Bhat, learned  counsel  appearing  for  the respondent does  not oppose the prayer for grant of time but submits that  only reasonable  time and  not sufficient time may be  granted to  the  tenant  for  the  purpose.  In  the established facts  and circumstances of the case, it appears appropriate to  us to  grant time to the appellant to vacate and hand  over the  vacant possession of the premises to the landlord on  or before  30.6.1999  (Thirteeth  June  Ninteen Hundred and  Ninty Nine)  subject to  his filing  the  usual undertaking in this court within four weeks.