NATHELLA SAMPATHU CHETTY Vs. SHA VAJINJEO BAPULAL

JUDGEMENT

(1.) This petition arises from proceedings in eviction. The petitioner applied to the Rent Controller at Madras for an order of eviction against the respondent from premises No. 176 Nethaji Subas Chandra Bose Road. The ground of the petitioner was that he was not occupying for the purpose of the business which he was carrying on a non -residential building in the city, which is his own and that he bona fide required the premises for his occupation. The petition was resisted, but was ordered by the Rent Controller. The respondent's appeal was successful. But this Court allowed the petition in revision and remitted the matter to the lower appellate Court for fresh disposal. It has since come to the same conclusion as it did before and directed that the eviction petition should stand dismissed. The matter is brought before this Court over again under S. 25 of the Madras Buildings (Lease and Rent Control) Act of 1960. While disposing of the appeal, the Court below rightly posed the point for its decision, namely, whether the landlord bona fide required the promises for his own occupation, but considered that the evidence on record did not establish bona fides on the part of the petitioner. It referred to the allegations made by the petitioner in an earlier application to the State Government for exemption of the premises from application thereto of some of the provisions of Act, which has since been superseded by Madras Act 18 of 1960, and one or two other facts from the evidence, thought that in view of them the petitioner's claim for an order of eviction was totally inconsistent with his case in the earlier application, that he had suppressed a material fact, namely, he only admitted in his cross -examination that he had a building of his own situate opposite to the premises in question and that he had seven or eight other residential buildings spread over the city and fetching a large rent, that this made his evidence unreliable and that finally it was not the case of the petitioner that premises No. 177, a portion of which he has been in occupation, is insufficient or too big for his business. The Court below on that process of reasoning concluded that though the petitioner was not occupying a building of his own for the purpose of his business, his claim was not bona fide.

(2.) It is argued before us that the approach made by the lower appellate Court is erroneous and vitiated its order. In our opinion, there is force in the contention. Sec. 10 of the Madras Buildings (Lease and Rent Control) Act 1960 provides for eviction of tenants in certain circumstances. Sub -S. (3) (a) (iii) or the Sec. allows a landlord to apply to the Controller for an order directing a tenant to put him in possession of the building if the landlord is not occupying for purposes of business which he is carrying on, a non -residential building in the city, town or village concerned which is his own. The second proviso to this clause is to the effect that where a landlord has already obtained possession of a building under this provision, he shall not be entitled to apply again for possession of another non -residential building of his own. If the conditions of these provisions are satisfied, the Controller may make an order as asked for by the landlord provided he is further satisfied that the claim of the landlord is bona fide. It is not in controversy before us that the conditions of S. 10 (3) (iii) are satisfied, and, therefore, the only question is, as was rightly posed by the the lower appellate court, whether the claim of the landlord is bona fide. This requirement that the claim of the landlord should be bona fide is common to not only the provision under which the petitioner applied in this case, but also to several other provisions which provide for tenant's eviction. The expression, therefore, will have to be understood in the context, but subject to that, it means that for present purposes the landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose. That this is what is meant by bona fide has been held in Motiram v/s. Suraj Bhan : A.I.R. 1960 S.C. 695 and in Metaram v/s. Jiwanlal : A.I.R. 1963 S.C. 499. It seems to us that this test has not been kept in view by the lower appellate court in recording a finding as to whether the claim of the petitioner was bona fide.

(3.) Nowhere in its order has the lower appellate court found that the petitioner's claim was a device to apply the premises to an oblique purpose. But it considered that the claim was not bona fide because in its view the petitioner had put forward inconsistent cases before the Government and the Rent Controller. We do not think that in the circumstances the allegations made by the petitioner in his earlier application to the Government affected the bona fide in his present claim. Indeed, it does not appear that those allegations are even relevant in that context. In that application which was made by the petitioner by his name, he alleged that he was the pater familias as the head of a large family belonging to one of the foremost business communities, that in partnership with his son he was carrying on the business of manufacturing jewellers and bullion under the name and style of "Nathella Sampathu Chetty and Son" at No. 177, Nethaji Subash Chandra Bose Road, Madras -1 and that they were also having a sister concern, a private limited company under the name and style of "Nathella Sampathu Chetty Son and Co. (P) Ltd." in which himself and his family were members. He further stated that both the concerns carried on business in this premises having a large annual turnover and that as the turnover was steadily Increasing and the space was insufficient not only to conduct the business, but also for the manufacturing side, the premises bearing No. 176 were required for their occupation. There was also an allegation that in the event of getting possession of the building, namely, premises No. 176, the petitioner proposed to make the two buildings into one by making structural and other alterations to suit the needs of the business. It appears that the private company was incorporated in 1952 and premises No. 177, which were owned by the petitioner at the time, were sometime later conveyed to the company. In June 1959 the petitioner purchased the premises bearing No. 176 and the respondent thereafter attorned to him. The petition to the Government was made in about July 1960. The lower appellate Court took those allegation and comparing them with those in the present application thought that the claims were totally inconsistent. In the present application that the petitioner stated was this. He said that he was carrying on business in gold and silver for several decades at No. 177 as the sole proprietor and in partnership, that in about 1952 he re -arranged his business and had confined himself to gold and bullion trade and transferred his other business with all stock -in -trade, good -will, premises etc in favour of the private limited company consisting of his son and other relations and that, in the circumstances, as he has purchased premises No. 176 and as he was not occupying a premises of his own for carrying on his business, he bona fide required the premises for his occupation. We can find no inconsistency in these allegations, except perhaps as to the kind of business the firm or the company was carrying on. In the earlier application what appears to have happened is that right or wrong, the petitioner mixed up the firm and the company and proceeded on the basis that all constituted one business of his and it was on that basis he wanted exemption of the premises No. 176. In the present application also the petitioner claims that he wants the premises to carry on his business. Only he has not pursued his case in the earlier application to the Government that he wanted the premises also for the entire business including that carried on by the company. We do not know on that ground the application to the Government was dismissed. But, we can visualise that as the petitioner was occupying a rented premises, that would disentitle him to get the order he wanted from the Government. Whatever that be, it is open to the petitioner without throwing himself open to a charge of being dishonest to confine his claim to his business. It is not in dispute that the petitioner is occupying a portion of the premises as a tenant of the company. The question in the circumstances will be whether the petitioner honestly desires to occupy the premises bearing No. 176 for carrying on his business. If he has that desire, that is not rendered dishonest became of the allegations he had made in the earlier application. These allegations do not necessarily negative the honesty of the petitioner in making the claim. Nor do we think that the allegation that he had made in the earlier application, namely, that when he gets possession of the premises, he would make the two buildings into one making the necessary structural or other alterations to suit the needs of the said business necessarily affected or are borne on the honesty of his present claim. The petitioner might legitimately think of making alterations on the two buildings and at the same time after making the alterations and making the two buildings as one whole occupy that part of the premises bearing No. 176, What we are concerned to point out is that there is nothing in the earlier allegations which were inconsistent with the claim of the petitioner being honest. It has been suggested to us that the petitioner may possibly after getting possession of premises No. 176 allow the company to occupy the same. The lower appellate Court has not recorded any finding to that effect, nor has our attention been drawn to any evidence to establish it. We may observe in passing that if the petitioner made such a use of the building, the respondent will not be without a remedy for the Act provides for such a contingency and enables the respondent to regain possession. In fact, the Act farther provides for a penalty.