NATARAJA TRADING COMPANY Vs. K MANOHAR

JUDGEMENT

(1.) THE tenant is the petitioner herein. THE landlord filed the petition for eviction against the tenant for owner's occupation under Sec. l0 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control )Act, 1960 as amended by Act 23 of 1973 and Act 1 of 1980 (hereinafter referred to as'the Act'). THE tenant is in occupation of the godown in premises No. 36, Subramani Mudali Street , Madras -600 079, belonging to the landlord on a monthly rent of Rs. 750. THE premises is let out for non-residential purpose. According to the landlords they are carrying on business in oil cake in a rented premises at door No. 3, Thatha Muthiappan street, Madras-1 as a wholesale dealer under the name and style of'arvind traders'. According to the landlords they are not in possession of any other non-residential premises of their own in the city of Madras. THErefore the landlords required the petition premises bona fide for conducting their business, which he is now carrying on in a rented premises. THE tenant filed a counter stating as under.

(2.) IT is true that the tenant is in occupation of a portion of the petition premises on a monthly rent of Rs. 750. Originally the petition premises belonged to one Jayaraman. He was residing in the first floor. The rain water from the upstair portion has got to be drained through the portion under the occupation of the tenant. There was stagnation of drain water in the portion occupied by the tenant. Hence a request was made by the tenant to the landlord to clear the drain water. Aggrieved over this, the said jayaraman filed a petition for eviction against the tenant on the ground of wilful default in payment of rent in R. C. O. P. No. 2593 of 1983. During the pendency of the eviction proceedings Jayaraman Doss died. The petitioners herein who are brothers claiming to be the legal heirs of Jayaram Doss, conducted the said eviction proceedings. Thereafter, the eviction petition was dismissed. Aggrieved over that they now came forward with the present petition for eviction against the tenant. Both the brothers appointed the petitioners herein as their power of attorney agent to collect the rent. The petition for eviction was filed by the said power of attorney. In the recent past the shutters in the godown was not working properly. Hence a request was made to the landlord to repair the shutters. But that was not done. The petition premises is a godown and in the godown the landlord cannot conduct his business in selling the oil cakes. There are other owners for the petition premises. They are not impleaded as parties in the eviction petition. Therefore, it was prayed that the petition is liable to be dismissed.

(3.) THE fact remains that the tenant is in occupation of the ground floor of the premises at No. 36, Subramani Mudali Street, Madras-79. THE upstair portion is in the occupation of the landlords. According to the landlords they are using the upstair portion for their residential purpose and the tenant is using the downstair portion as a godown. It means the upstair portion is being used by the landlords as their residential portion and the ground floor is being used as godown, i. e. , for non-residential purpose by the tenant. According to the landlords they are carrying on their oil cake selling business in a rented premises at No. 3, Thatha Muthiappan Street. Madras-1 and they wanted the petition premises to conduct their business. It is the contention of the landlords that since the portion under the occupation of the tenant is a nonresidential one and since the upstair portion is being used by them for residential purpose they cannot file a petition under Sec. 10 (3) (c) of the Act. According to the landlords since they are carrying on their business in a rented premises and inasmuch as they wanted the petition premises to conduct their business which they are carrying on in a rented premises the petition for eviction can be filed under Sec. 10 (3) (a) (iii) of the Act. Admittedly in the premises at No. 36, Subramani Mudali Street, Madras-79 the upstair portion is being used by the landlords for their residential purpose and the downstair portion is being used by the tenant for non-residential purpose as a godown. THErefore, the downstair portion is part of a building situate at No. 36, Subramani Mudali Street, Madras-79. According to the landlords since they require the nonresidential premises under the occupation of the tenant for the purpose of conducting their business which they are carrying on in a rented premises at No. 3, Thatha Muthiappan Street, the petition for eviction can be filed under Sec. l0 (3) (a) (iii) of the Act. This contention cannot be accepted because Sec. l0 (3) (c) of the Act states as under: 'a landlord who is occupying only a part of a building whether residential or non-residential may, notwithstanding anything in clause (a) apply to the Rent Controller for an order directing any tenant occupying a whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation.' In the present case, admittedly the landlords are in occupation of the upstair portion. THEy are using the same for residential purpose. THEy require the downstair portion of the building, which is used for non-residential purpose by the tenant. In such a case irrespective of the fact that tenant is using the downstair portion for non-residential purpose or for residential purpose, if the landlords want the downstair portion for non-residential purpose they can file a petition for eviction only under Sec. l0 (3) (c)of the Act and the provisions of Sec. 10 (3) (a) (iii) of the Act will not be applicable to the facts of the case.