B MOHAN LAL SOWCAR Vs. HAMEEDIA HARDWARE STORE

JUDGEMENT

(1.) THE questions which arise for consideration are whether the petition for eviction is maintainable as such and whether the claim of the petitioner is bona fide. It is not in dispute that the petitioner is the owner of house and premises No. 157, Kutchery Road, Mylapore,madras-4. He entered into an'agreement of Rental'on 9-6-1982 with the respondent leasing out the 'downstair portion'of the said house and premises on a monthly rent of Rs. one thousand for a period of eleven months i. e. , from 10-6-1982 to 9-5-1983. After the expiry of the lease, the petitioner filed the petition out of which this revision arises under S. 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called the Act, for a direction to the respondent to quit and deliver vacant possession of the ground floor of the aforesaid premises before the Court of Small Causes, Madras. THE said petition was taken on file as R. C. O. P. 2962 of 1983 on the file of the XIIIth Judge, court of Small Causes, Madras functioning as Rent Controller under the Act. In that petition the petitioner stated that he bona fide required the demised premises for the purpose of his wife'business as pawn broker which was being conducted in a rented premises in another street as she did not own any premises of her own.

(2.) IN the counter statement the respondent contended as follows: Originally the respondent entered into an agreement of tenancy on 5-7-1974 with Sri Sagarmull, brother of the petitioner in respect of two shops and a room on a rent of Rs. 450 per mensem for non-residential purposes and on 5-10-1974 took the back portion on a rent of Rs. 175 per mensem for residential purposes. From the inception the tenancy was both residential and non-residential with reference to separate and distinct portions. The rent was later increased to a consolidated sum of Rs. 750 per mensem. The petitioner entered into an agreement on 5-9-1981 for an enhanced rent of Rs. 1,000 per mensem for both residential and non-residential purposes. The tenancy was renewed for a further period of eleven months on 9-6-1982 on a rent of Rs. 1,000 per mensem for both residential and non-residential purposes. The allegations that the petitioner s' wife was doing pawn broker business in a rented premises and that the ground-floor was needed for the same were false. The claim was not bona fide and it was made only to coerce the respondent to agree to a further enhancement of rent and to get fresh advance of more than Rs. 15,000. The petition was not maintainable as framed as the tenant occupied the premises for residential and non-residential purposes.

(3.) IT is clear from the above passages that when there is an instrument of tenancy specifically and explicitly declaring the purpose of the letting as residential or non-residential, that should govern the situation. IT is only in the absence of such an instrument, evidence aliunde has to be considered. In the present case, there is admittedly an instrument of tenancy dated 9-6-1982. While according to learned counsel for the petitioner the purpose of the letting could be gathered from the instrument as non-residential, learned counsel for the respondent urged that as there is no explicit declaration of the purpose in the instrument, the prior history of the tenancy should be taken into account. There are certain features which appear on the face of the instrument and they would clearly indicate that the purpose of the tenancy is non-residential. The name of the tenant is Hameodia Hardware stores and it is represented by its partner and manager S. Peer Mohammed. While describing the tenant, the document reads thus: "and HAMEEDIYA HARDWARE STORES" represented herein by its Partner and Manager S. Peer Mohammed son of Haji S. Shahul hameed, carrying on business as Hardware and Paint Merchants at No. 157, kutchery Road, Mylapore, Madras - 600 004, hereinafter called the'tenant'of the Other Part'. (ITalics ours) IT is seen that it is the firm which is the tenant and the parties have taken care to refer in the description to the fact that the firm was carrying on business in the demised premises. There is no reference whatever to any portion of the premises being used for residential purposes. The document does not state anywhere that one portion of the ground-floor let out to the tenant under the document was intended for residential purpose. The rent is one lump sum of Rs. 1,000 per month. There is no indication that a part of the rent is for residential portion and another part is for nonresidential portion. The description of the property in the schedule is as follows: 'downstairs portion of house and premises bearing door No. 157, Kutchery Road, Mylapore, Madras - 600 004, of an extent of 1871 sft. or thereabouts, except the open space in the middle of the premises, which is being used as common place to the tenant, Landlord and the other tenants also where the pumpset and corporation water tap is situated.' The Schedule does not divide the property into two portions'the subject matter of the demise is the entire extent of 1871 sq. ft. , in the ground floor of the house. Significantly, there is no reference whatever to the prior tenancies or even the history of the tenancy on which considerable reliance is placed by learned counsel for the respondent. There is no indication in the document that it is only a renewal or continuation of an old tenancy. On the other hand, Cl. (4) of the terms and conditions refers to the payment of a sum of Rs. 7,500 on the date of the document as advance which should be repaid by the landlord to the tenant at the time of vacating the premises. This indicates sufficiently that the tenancy is a fresh one and the parties intended to start with a clean slate. In view of the aforesaid circumstances, there can be no doubt that the purpose of the tenancy as could be gathered from the terms of the instrument of the tenancy was non-residential.