IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No. 2150 of 2012 and M.P.No. 1 of 2012 V.Jeevaramamoorthy .. Petitioner Vs Mrs. Sabana Berween .. Respondent Civil Revision Petition filed against the judgment and decree dated 4.4.2012 made in R.C.A No.29 of 2011 on the file of the VII Judge, Small Causes Court at Chennai against the order dated 7.2.2010 made in R.C.O.P.No.233 of 2010 on the file of the X Judge, Small Causes Court at Chennai. For Petitioner :- Mr.AR.L.Sundaresan Senior Counsel for M/s.S.Rajendran For Respondent :- Mr.R.Muthukumarasamy Senior Counsel for M/s.R.Karthikeyan ORDER
The tenant is the Revision Petitioner. The respondent/landlord filed R.C.O.P No. 233 of 2010 on the file of the learned Rent Controller, Chennai seeking for eviction of the petitioner herein on the ground of owner's occupation.
2. The respondent/landlady filed the said RCOP for eviction with the following averments:-
She is the owner of the petition premises situate at Shop No. H 150, Periyar Vegetable Market, Koyambedu Wholesale Market Complex, Chennai and the respondent is the tenant on a monthly rent of Rs.24,200/-. The petition premises is a non-residential one. She is doing wholesale coconut business at Melalathur, Gudiyatham Taluk, Vellore District in the name and style of K.O. Basheer Ahamed Coconut Traders and she is the proprietor of the said business. She has been procuring coconuts from the coconut farms in and around Gudiyattam and supplying them to various parts of the State including Chennai . She is having a residence at Chennai and keeps travelling from Chennai to Guidyatham for the purpose of business . Therefore , she wanted to establish her own shop at Chennai for doing the coconut business. She wants to establish the shop at Koyambedu Market which is known for its business potentiality and therefore she requires the petition premises for her own occupation for the purpose of running the said business along with her son. She does not own any other non-residential building of her own within the city of Chennai except the petition premises. Her requirement is genuine and bonafide. The petition mentioned premises is the only commercial property belongs to her and her family members within the City of Chennai.
3. The case of the petitioner/tenant is as follows:-
He was inducted as a tenant in the year 1999 by the father of the landlady and he is running a Commission agent business of buying and selling Vegetables in the name and style of M/s. Saravana Traders in the petition premises. For the said purpose, he has invested huge amount to the suppliers of Vegetables and the said business is his only livelihood. During the month of January 2009, the landlady demanded enhanced rent . When the tenant requested to provide some more time for making such enhanced rent, the husband of the landlady demanded the tenant to vacate and hand over the shop which resulted in filing a police complaint on 25.12.2009 by the tenant against the husband of the landlady. The tenant also filed O.S.No. 13588 of 2009 on the file of the City Civil Court, Chennai seeking for permanent injunction restraining the landlady and her husband from in any manner interfering or disturbing with his peaceful possession and enjoyment of the petition property except by due process of law and obtained an order of status quo. The petition premises is meant only for perishable goods (Vegetable wholesale business) and not meant for coconut wholesale business and therefore there is no bonafide on the requirement of the landlady.
4. The learned Rent Controller after considering the rival pleadings as well as the evidence let in by both sides, dismissed the eviction petition by his order dated 7.12.2010. The learned Rent Controller found that though the landlady had satisfied that the building is a non-residential one and she is carrying on business in coconut, she was not able to satisfy that she was not owning any other non-residential building in the particular city or town and that the requirement is bonafide. It is also found by the learned Rent Controller that the landlady did not make any preparatory work for the proposed business.
5. Aggrieved against the order of the learned Rent Controller, the respondent herein filed R.C.A.No. 29 of 2011 on the file of Rent Control Appellate Authority. The said appeal was allowed on 3.4.2012 by holding that the landlady has established that she is not having any other non-residential building within the City of Chennai and that she is running coconut business at Gudiyatham Taluk and wants to commence the same business in the petition premises. The Appellate Authority also found that the requirement of the landlady is a bonafide one and the tenant did not establish that the coconut business cannot be run in the petition premises by adducing any other oral and documentary evidence. Accordingly, the Appellate Authority allowed the appeal and ordered eviction. Aggrieved against the same, the present Civil Revision Petition is filed before this Court.
6. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioner submitted that the landlady has not proved her the bonafide and the eviction petition was filed only with the sole intention to evict the tenant and to induct a new tenant to get enhanced rent. It is his further contention that the landlady is carrying on business in coconut at Melalathur of Gudiyatham Taluk already and therefore there is no need to shift the said business. It is only a desire of the landlady shown in the petition and therefore such desire cannot be termed as a bonaife requirement. He further contended that no preparatory steps have been taken by the landlady for doing the business at Chennai. Admittedly, the son in law of the landlady is having a shop opposite to the petition premises in which the landlady can very well run the business. The learned Senior Counsel also submitted that the landlady as P.W.1 in her cross examination had admitted that her family is owning three more shops in the same Koyambedu Market Complex .
7. Per contra Mr. R.Muthukumarasamy , learned Senior Counsel appearing for the the respondent submitted that the landlady is not owning any other non-residential premises within the city of Chennai and the tenant has not proved his allegation regarding the ownership over three more shops. In fact, no averment to that effect was made by the tenant in the counter affidavit. It is also submitted by the learned Senior Counsel that the evidence of tenant as R.W.1 and the proof affidavit filed by him did not reefer anything to say that the family of the landlady is owning three more shops. It is further contended by him that when the landlady is already carrying on the business in coconut at Gudiyatham Taluk, there is no necessity to show any preparatory work before commencing the said business in the petition premises. No licence is required to run the said business and only a permission from the authority of the Koyambedu Market Complex is required, which can be obtained only after securing the vacant possession of the petition premises from the tenant. He further submitted that the tenant cannot dictate terms to the landlady as to where and which premises she should do her business. Learned Senior Counsel submitted that the suit filed by the tenant was also dismissed on 18.8.2010 wherein it is specifically found that the landlady herein did not threat the tenant to vacate the suit property. In support of his submission the learned Counsel relied on the decision reported in 2010 (6) CTC 454 (The Regional Manager,Tamil Nadu Handloom Weavers' Cooperative Society Ltd., Vs. V.Natarajan) to contend that even an intention to commence the business is enough to show and prove the bonafide.
8. Heard Mr.AR.L.Sundaresan learned Senior Counsel for the petitioner and Mr.R.Muthukumarasamy learned Senior Counsel for the respondent and perused the materials placed before this court
9. The point for consideration in this Civil Revision Petition is as to whether the respondent landlady is requiring the petition premises for running her coconut business ; whether such requirement is in accordance with Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act and whether the requirement of the respondent is bonafide ?
10. The landlady while filing the petition before the learned Rent Controller seeking for eviction of the tenant, has categorically stated that either herself or her family members are not owning any other non-residential building within the city of Chennai except the petition premises. When the petitioner herein as the tenant filed the counter affidavit before the learned Rent Controller, he has not made any allegation anywhere that the landlady is owning three more shops within the same Complex . No doubt, during the cross examination of the husband of the landlady as P.W.1 an attempt was made by the tenant to suggest him as if the landlady is owning three more shops within the same complex and the same are maintained by her son in law. To the said question, P.W.1 has deposed as follows:-
VERNACULAR (TAMIL) PORTION DELETED By relying on such deposition of P.W.1, the learned Senior Counsel for the petitioner submitted that there is a clear admission by the landlady that her family is owning three more shops in the same complex.
11. On the other hand, the learned Senior Counsel appearing for the respondent contended that P.W.1 had in fact denied the entire suggestion and the full stop made in between the two sentences could be a typographical error since the denial of the landlady is in respect of the full statement and not a portion of it. In other words, the learned Senior Counsel submitted that P.W.1 has not only denied the suggestion of owning of three more shops but also denied that her son in law is maintaining those shops. Whether it is a typographical error or not is the question which cannot be gone into by this Court at this stage. However, the intention of the parties can be gathered from their respective pleadings, if the recording of a statement is disputed on a particular aspect. Here the pleadings of the parties do not suggest as if the landlady owns three more shops. When that being the position, I fail to understand as to how the learned Senior Counsel appearing for the tenant is justified in raising such issue before this Court, especially when there was no plea raised to that effect in the counter affidavit filed before the Rent Controller. No doubt, a question was put to P.W.1 suggesting about the owning of three more shops. I am afraid as to how the tenant is entitled to make such new suggestion to P.W.1, as a first time during the cross examination without there being any pleading to that effect in the counter affidavit or in his sworn statement as R.W.1. Therefore, in the absence of any pleading on fact, the tenant is not entitled to lead in any evidence on that aspect. Above all, the very contention raised by the tenant was rejected by the learned Rent Controller himself at Paragraph 10 of his order by observing that the respondent has not proved that the landlady is having three more shops in the market complex. Consequently, the said plea which is rejected by the learned Rent Controller cannot be once again raised before this Court by the tenant, especially in the absence of any cross objection filed before the appellate court. In fact, the Appellate Authority has also found at paragraph No.15 of his judgment that the tenant has not proved the allegation that the landlady is having three more shops in the same market complex. The tenant has not adduced any other evidence to show that the landlady is owning three more shops. Both the Courts have concurrently found that the landlady or her family members are not owning any other non-residential premises within the city of Chennai. Therefore, it has to be safely concluded that the landlady has proved that she is not owning any other non-residential building in the city of Chennai, other than the petition premises. The third requirement of Section 10(3)(a)(iii) is thus proved.
12. While coming to the question of bonafide of the landlady is concerned, the learned Rent Controller has rejected the same only on the reason that the landlady being the permanent resident of Gudiyatham has not made any preparatory work for the proposed business at the petition premises. The Rent Controller also by taking note of the suit filed by the tenant came to the conclusion that the landlady has filed the petition only to evict the tenant and not for the purpose of starting her own business.
13. On the other hand, the learned Appellate Authority has found that the very fact that the tenant in his suit has taken out a summon to the landlady to her Chennai address would prove that she is residing at Chennai. It is also found by the Appellate Authority that as the landlady is admittedly running a coconut business at Gudiyatham, there is no necessity for the landlady to show the preparatory work. The Appellate Authority has also found that mere filing of criminal case by the tenant cannot be construed that the landlady attempted to evict the tenant coercively from the petition premises, in the absence of any other independent witnesses to substantiate the said contention.
14. At this juncture, it is also useful to note that in the suit filed by the tenant against the landlady and her husband in O.S.No.13588 of 2009, a judgment and decree came to be passed on 18.8.2010 by the City Civil Court, Chennai, by dismissing the same by specifically observing that the tenant has not established that the landlady had threatened him to vacate the suit property.
15. It is to be seen that admittedly the landlady is carrying on a business in coconut at Gudiyatham Taluk and wants to do the said business at Chennai. It is also found by both the courts below that the landlady is not owning any other premises other than the petition premises. As the landlady is running the coconut business already in Gudiyatham Taluk, there is no necessity for her to do any preparatory work to do the same business at Chennai. Therefore, the absence of any preparatory work cannot be put against the landlady to contend that there is no bonafide on her part. Consequently, I am of the view that the landlady has proved the bonafide of her requirement.
16. Insofar as the other contention of the tenant that the landlady can run the business in the premises belonging to her son in law is concerned, I am unable to appreciate the same as it is against the well established principle that the tenant cannot dictate terms to the landlord as to where and which of the portion he should reside or do his business. Therefore, such contention also does not have any merit.
17. While coming to the other contention that coconut business cannot be run in the petition premises as it is meant only for perishable vegetables is concerned, I am unable to accept such contention in view of the fact that the tenant has not established that the coconut is not a perishable one. There cannot be any doubt that coconut also would come within the common meaning and definition of fruits and vegetables. Certainly, it cannot be equated with other nuts and spices. At this juncture, it is useful to refer the details given in wikipedia, an encyclopedia site about "coconut" as follows:-
"The term coconut can refer to the entire coconut palm, the seed, or the fruit, which, botanically is a drupe, not a nut. Coconuts are part of the daily diets of many people. Coconuts are different from any other fruits because they contain a large quantity of "water" and when immature they are known as tender-nuts or jelly-nuts and may be harvested for drinking. Botanically, the coconut fruit is a drupe, not a true nut. Like other fruits, it has three layers: " In botany, a drupe is an indehiscent fruit." 18. Thus, from the above details, it can not be said that the coconut is not a perishable one. Perishability and life time of any vegetable or fruit depends upon the nature of such vegetable or fruit and it may vary from one type to another and however, all vegetables or fruits at one point of time would perish. Though a feeble attempt was made by the learned Senior Counsel appearing for the petitioner that the coconut is not a perishable item, he has not placed any other materials before this Court in support of such contention. Therefore, the said contention is also liable to be rejected. 19. The learned Senior Counsel for the respondent relied on the decision reported in 2010 (6)CTC 454 (The Regional Manager,Tamil Nadu Handloom Weavers' Cooperative Society Ltd., Vs. V.Natarajan) to contend that the landlord need not carry on business actually and it is enough if he intends to starts the business. The facts of the present case shows that the landlady herein stands in a better footing as she is already doing the business but only at a different place. Therefore, the question of preparatory work does not arise in this case. 20. Considering all the facts and circumstances, as discussed supra, I am of the view that the order passed by the Appellate Authority in ordering eviction is perfectly valid and does not warrant any interference by this Court. Accordingly, the Civil Revision Petition is dismissed and the petitioner/ tenant is granted three months' time to vacate and hand over vacant possession of the premises to the landlady from the date of receipt of copy of this order. Consequently, the connected M.P. is closed. No costs. krr/ To The Registrar Small Causes Court Chennai