M NEMICHAND JAIN Vs. P ETHIRAJAN

JUDGEMENT

(1.) THE civil revision petition is directed against the concurrent orders of the Rent Controller and Appellate Authority granting the prayer of the respondent herein for eviction of the petitioner, under Sec.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. THE petitioner contends that the findings of the courts below are wholly unsustainable for several reasons. THE first submission made by learned counsel for the petitioner is that there is no specific averment in the petition filed by the respondent that the respondent is not in occupation of any non-residential building for the purpose of carrying on his son's business. In the absence of such an averment in the pleading, it is contended by learned counsel that the bona fide requirement of the respondent ought not to have been accepted. I do not agree. Though there is no specific averment, it is clear from the petition that the respondent is seeking eviction of the petitioner herein on the footing that he requires the premises for the purpose of his son's business, which is being carried on in a rented premises at No.224,Thambu Chetty Street, Madras-1. Taking into consideration all the averments made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of bona fide requirement. THE courts have to consider only the evidence on record and decide whether the bona fide requirement has been made out. THE absence of an express sentence in the pleading does not vitiate the proceedings before the courts below.

(2.) THE second contention put forward by learned counsel is that the petition under Sec. 10(3)(a)(iii) of the Act is not maintainable inasmuch as the respondent was having in his possession a portion in the very same building at No.62, Kandappa Chetty Street, in the rear, vacant. It is brought out in the evidence that the respondent was living in the said rear portion and he had shifted his residence to Mylapore two years prior to the deposition. According to learned counsel, when a portion of the building is vacant and is in the control of the respondent, that would bring the matter under Sec. 10(3)(e) of the Act and it is not open to the respondent to seek eviction under Sec.10(3)(a)(iii) of the Act. I am unable to agree with this contention. THE portion occupied by the respondent was always used for residential purposes. After his vacating the same and shifting his residence to other place, he had not let out the same to any other person. That portion cannot be treated as a non-residential building. Sec.2(2) of the Act defines a "building" as any building let or to be let separately for residential or non-residential purposes and includes the garden, grounds etc. In this case, the building that was let out was only the shop which was occupied by the petitioner herein and another teashop in the front portion of No.62, Kandappa Chetty Street. THE rear portion was always in the occupation of the landlord for the purpose of his residence. Hence, there is a severance and carving out of the portion let out from the entire building. THE portion let out has been used for non-residential purposes and the portion which was retained by the landlord was only used for his residential purpose. Even after he vacated it, it was not let out and it was kept vacant and therefore, it continued to be a residential building. Hence, it cannot be treated as a part of the building let out to the tenants within the meaning of Sec.10(3)(c) of the Act. Under Sec.10(3)(a)(iii) of the Act, a landlord may, subject to the provisions of clause (d) apply to the controller for an order directing the tenant to put him in possession of the building in case it is a 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 nonresidential building in the city, town or village concerned, which is his own. THE language is quite clear and it cannot be said that the landlord is occupying a non-residential building of his own for the purpose of his son's business.

(3.) IT is next contended that the respondent's son is carrying on business only in the suit premises in another portion and it is false to contend that he is doing business in No.224, Thambu Chetty Street. This contention is negatived by the admission made by the petitioner himself as R.W.1. In this deposition he stated that he did not know whether the respondent's son was doing business in No.62, Kandappa Chetty Street. He also stated positively that the respondent's son was doing business in No.224 Thambu Chetty Street. Excepting to state that there was a board showing the name of the business of the respondent's son in the suit premises, the petitioner had not stated anything to substantiate his version that the respondent's son was doing business in the suit premises itself.