(Prayer:-This Civil Revision Petition has been preferred under Section 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 18/60, against the order dated 27.08.2008 in RCA.No.315 of 2001 passed by the learned VII Judge, Court of Small Causes, Chennai, reversing the judgment and decree dated 05.01.2001 in RCOP.No.2026 of 1997 on the file of the XVI Judge (XV court incharge), Court of Small Causes, Chennai.)

The Judgment in RCA.No.315 of 2001 on the file of the VII Judge, Court of Small Causes, Chennai, which had arisen out of the order in RCOP.No.2026 of 1997 on the file of the XVI Judge, (incharge of XV Judge), Court of Small Causes, Chennai, is under challenge in this revision. The tenant in RCOP.No.2026 of 1997 is the revision petitioner herein. RCOP.No.2026 of 1997 was filed by the landlady under Section 10(3)(a)(iii) and 10(3)(c) of the Tamil Nadu Building (Lease and Rent Control) Act, (hereinafter referred to as the).

2. The brief facts in RCOP relevant for the purpose of deciding this Revision are as follows:-

2(a) The petition scheduled premises bearing Door No.18, Perumal Koil Street, 4th Lane, Chennai, belongs to the landlady/petitioner. The respondent is the tenant occupying a non-residential portion on the front side of the ground floor, which consist of two rooms. The property is facing north, on the western side of the property, the respondent is carrying on business, on the eastern side of the property, the petitioners sons namely Vijay and Shankar are carrying on business under the name and style of M/s. Jayalakshmi polishing Works, in between the two portions the entrance for the house is situated.

2(b) The petitioners younger son Shankar is going to get married and he has to carry on business on his own bifurcating from his brother Vijay the portion under the occupation of the respondent/tenant is required for the petitioners sons own occupation and by explaining the above said facts the petitioner herein requested the respondent/tenant to quit and deliver vacant possession of the portion under this occupation. Finding the genuineness and the bonafide requirement of the petitioner the respondent agreed to vacate and deliver vacant possession of the portion under his occupation. Thereafter, to the shock and surprise of the landlady, the respondent/tenant has sent a draft for a sum of Rs.10,000/- through his advocate as if the petitioner has demanded enhanced advance amount of Rs.10,000/-. For the said notice sent by the respondent, the petitioner has sent a reply through her lawyer. After receipt of the reply the respondent undertook to vacate and handover the possession of the petition scheduled premises within six months. The portion under the occupation of the respondent/tenant is required bonefidely for the own use and occupation of the petitioners son since the business of the petitioners son has developed and the petitioners son by name Shankar is going to get married. So the requirement of the petitioner is very much bonafide and as such the respondent is liable to be evicted on the ground of owners occupation.

2(c) The petitioner is occupying the first floor portion of the petition scheduled premises for her residential purpose. The shop portion under the occupation of the respondent/tenant is required for her/landlady in any by way of additional accommodation for her sons business purpose. By ordering eviction the respondent would not be put to any hardship, but on the other hand if the eviction is not ordered, the petitioner would be put to very great hardship and loss, the hardship suffered by the petitioner/landlady wold outweigh the hardship of the respondent/tenant. One another tenant by name Hiralal who is in occupation of two rooms behind the shop portion of the respondent/tenant was requested by the petitioner/landlady to vacate and by finding the bonafide need of petitioners own use and occupation, the said Hiralal has also consented to vacate the portion under his occupation.

2(d) The petitioner is residing in the first floor of the premises along with her husband and their sons. Her two sons got married and they are living with her in the first floor portion her third son by name Shankar who is going to get married very soon. Since the portion under her occupation is not sufficient for accommodation of her all the three sons and since the business which is carried on by her sons developed, the portion under the occupation of respondent as well the portion under the occupation of Hiralal is required by the landlady. The portion under the occupation of Mr.Hiralal, namely two rooms though used as non-residential portion as on today is in the nature of residential portion and as it could be occupied by the petitioners sons for his residential purpose, if vacated as agreed by Hiralal. The portion under the occupation of the respondent is bonafide required for her son Shankar for carrying on business separately by bifurcating from his elder brother Vijay. Since he is going to get married, as such the requirement of the petitioner of the portion under the occupation of the respondent is very much required for the own use of her sons occupation and therefore the respondent is liable to be evicted on the ground of owners occupation.

2(e) Moreover the petitioner does not own any other building in the city of Chennai and as such she is entitled to get eviction of the respondent for her sons own use and occupation of the portion under the use and occupation of the respondent/tenant. Hence, the petition.

3. The respondent/tenant in his counter would contend that the petition schedule premises is not required for expanding the business run by the petitioners son viz., Vijay and Shankar in the name and style of M/s. Jayalakshmi Polishing Works. Both Vijay and Shankar are carrying on business of polishing works independently of each other. The shops of Vijay and Shankar are separate and both the shops are separated by an entrance to Hiralals shop. The respondent is not aware of the marriage proposal for Mr.Shankar. The respondent never agreed to vacate the petition scheduled premises as alleged in the petition. The petitioner wanted an additional deposit of Rs.10,000/- for which she refused to issue receipts. Hence, the respondent sent the amount by cheque along with a lawyers notice. The petitioner returned the cheque stating that she had never asked for Rs.10,000/- as additional deposit. Having failed in the attempt to take additional deposit without issuing receipt, the petitioner started adopting illegal means to forcibly evict the respondent. On 21.7.1997 the petitioner engaged some workmen and ordered them to demolish the roof portion. The object of the petitioner was to see that the roof becomes leaky so that the respondent will have no other alternative but to vacate the portion under the occupation of the respondent/tenant. On 23.7.1997 the petitioner brought anti-social elements and created a scene by throwing the items in the workshop here and there. The respondent gave a complaint to the Elephant Gate Police Station. Due to such threats by the petitioner, the respondent filed a suit in O.S.No.5105 of 1997 before the XV Assistant Judge, City Civil Court, Chennai and the Court was pleased to pass judgment and decree in favour of the respondent granting permanent injunction restraining the defendant/revision petitioner herein from interfering with the respondents/tenants peaceful possession and enjoyment of the premises. The said Hiralal vacated the portion only after filing of the above case and that too as he had moved to his own place. The portion under the occupation of the respondent/tenant is not having any window and bounded on both the sides by shop buildings and it is also suitable for residential occupation. The petition filed by the landlady on the ground of additional accommodation is not sustainable as the relative hardship suffered by the respondent much outweighs that of the petitioner. The respondent has obtained a permanent certificate from the Department of Industries and Commerce certifying this shop as a small scale industrial Unit. The respondents shop is located facing the Perumal Koil Garden Street and further it is hardly 100 feet away from the main road. The respondents shop is ideally located for his business of repairing and servicing of radiators, as the locality nearby namely Elephant Gate is a commercial place since the Railway Sorting Office is located. At this place most of the parcels sent through the railways is sorted out for transport to various places. Hence, a number of lorries and other light commercial vehicles are plying and are garaged in this locality. Hence, the locality is ideal for the business for servicing and repairing radiators. If the eviction is ordered, the respondent will not be able to find a suitable and ideal location like the present shop as the area has become highly commercial place and there are very few shops available. The respondent has been running the business since 1975 for the last 25 years and hence has developed a good business and reputation. The respondent will be put to total loss of business and his livelihood will be ruined. Further the respondent will have to get all the statutory permissions to run a small scale unit all over again resulting in enormous loss of money and time. The portion occupied by Hiralal is lying vacant and the same can be used as additional accommodation by the petitioner/landlady. The portion under the occupation of Hiralal, which was vacated and handedover to the petitioner, is about 600 sq.ft, wherein the portion under the occupation of the respondent will hardly about 100 sq.ft. The respondents/tenants shop is separated by a wall and passage leading to the erstwhile portion occupied by Hiralal and the same cannot be used for the petitioners shop by way of additional accommodation. Hence, the petition is liable to be dismissed.

4. Before the learned Rent Controller the petitioners husband was examined as P.W.1 and Ex.P.1 to Ex.P.7 were marked. The respondent has examined himself as R.W.1 and exhibited Ex.R.1 to Ex.R.7. After meticulously going through the evidence both oral and documentary the learned Rent Controller holding that the petitioner is not entitled to the relief asked for under the petition, had dismissed the petition, but without costs. Aggrieved by the findings of the learned Rent Controller, the landlady/revision petitioner preferred an appeal in RCA.No.315 of 2001 before the learned Rent Control Appellate Authority (VII Judge, Court of small Causes, Chennai). The learned Rent Control Appellate Authority holding that the petition schedule premises required for additional accommodation of the landlady has allowed the appeal, thereby setting aside the orders of the learned Rent Controller in RCOP.No.2026 of 1997, which necessitated the tenant to approach this Court by way of this revision.

5. Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondent and considered their respective submissions.

6. Drawing the attention of this Court to the second proviso to Section 10(3)(a)(iii) of the Act, the learned counsel for the revision petitioner would contend that already the landlady had obtained vacant possession of a premises having about 600 sq.ft in area from one of his tenants viz. Hiralal and that the said premises is also lying vacant with the respondent herein / landlady and under such circumstances, the petition filed under Section 10(3)(a)(iii) of theby the landlady for the same cause in respect of the petition schedule premises is not maintainable. The second proviso to Section 10(3)(a)(iii) of theruns as follows:-

"Section 10(3)

(a) ......

(i)

(ii)

(iii)

Proviso (i)............

Proviso (ii):- Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this clause_

(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own."

In this regard the learned counsel for the revision petitioner would focus the attention of this Court to the evidence of P.W.1. In the cross-examination P.W.1 would admit that the petition schedule premises comprises of two rooms with the total area of about 100 sq.ft and that the son of the petitioner is having his shop adjacent to the petition schedule premises and behind the petition scheduled premises lies the shop building, which was let out to one Hiralal and next to Hiralals shop lies the shop belonging to Shankar one of the sons of the landlady and the same was facing the road, which also measures about 450 sq.ft., as that of the shop building let out to Hiralal. In categorical terms P.W.1 would admit in the cross-examination that Hiralal had vacated the portion under his occupation and handedover the vacant possession to the landlady and after Hiralal vacated and handedover possession, the landlady had installed a 3 HP motor and that in the portion occupied by their sons also there are two motors installed for the purpose of their business. So the above said admission by P.W.1 in the cross-examination was taken into consideration by the learned Rent Controller and held that when Shankar for whom the petitioner has filed the petition for expanding the business conducted by her sons Shankar and Vijay, and admittedly Shankar is having his won shop, there is no necessity for the landlady to require the petition scheduled premises to expand the business of her son Shankar after getting separated from the joint business conducted by Shankar and Vijay in the petition scheduled premises, and has, further, held that there is no necessity for asking the petition scheduled premises on the ground of additional accommodation by the landlady, had dismissed the petition. The fact that Shankar is having separate shop of his own near the petition schedule premises, as admitted by P.W.1 in the cross-examination, was not considered by the learned Rent Control Appellate Authority in the appeal. Further, it is the definite case of the landlady in the eviction petition that she requires the petition scheduled premises for expanding the business of her son Shankar, who is going to get married very soon at the time of filing of the eviction petition and that after his marriage, the portion surrendered by Hiralal will be used as a residence by Shankar and his wife. But it is evident from the evidence of P.W.1 in the cross-examination that even after getting the vacant possession from the Hiralal in the said portion 3 HP motor was installed by the landlady. There is no need to instal 3 HP motor if the said premises is going to be used for residential purpose. Admittedly the landladys sons are running a business viz. "Jayalakshmi Polishing Works", that is why have also installed two motors in the existing shop, in which both Shankar and his brother Vijay are running the business in the name and style of "M/s. Jayalakshmi Polishing Works".

7. Relying on AIR 1981 SC 1113 [LQ/SC/1981/215] (M.M. Quasim Vs. Manohar Lal Sharma and others) the learned counsel for the revision petitioner would contend that it is the landladys prerogative to decide which portion is suitable for her own occupation in a petition filed under Section 10(3)(a)(iii) of theand that in her petition the landlady had clearly stated that the petition scheduled premises required for expanding her sons (Shankar) business after separating from the joint business run by him with his brother Vijay and that after his marriage the premises surrendered by Hiralal is going to be utilized as a residence for him. But the evidence of P.W.1 will go to show that already portion surrendered by Hiralal has been converted to run a business ie., running a Polish Workshop of vessels for which 3 HP motor has been installed. The exact observation in which reliance has been placed by the learned counsel for the revision petition runs as follows:-

"Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place, the learned Judge of the first appellate Court while upholding the claim of personal requirement of respondent has observed as under:

"It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs has led evidence to show that the plaintiffs have got some more houses at Giridih........ The defendant appellant has also filed certified copy of judgment of one suit No.47/73 which is Ext.D only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the house is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs".

This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the Country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlords claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlords greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life _ shelter _ and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe."

8. It is further elicited on the side of the learned counsel for the revision petitioner that landlady is continuously all along giving trouble to the respondent / tenant to get vacant possession of the petition scheduled premises somehow or other. Due to the unbearable harassment received at the hands of the landlady the tenant/revision petitioner herein had filed a suit in O.S.No.5105 of 1997 for injunction restraining the landlady from interfering with the peaceful possession and enjoyment of the petition scheduled premises unless by due process of law, and got a decree in his (tenant) favour. In support of this, the tenant had also filed Ex.R.1 to Ex.R.3 before the learned Rent Controller.

9. The learned counsel for the respondent would contend that both Hiralal and this revision petitioner had agreed to vacate their respective premises under the tenancy ie., within six months, but Hiralal alone had surrendered possession as agreed upon between the parties, but not the tenant / revision petition herein in respect of the petition schedule premises and cleverly he had sent a DD for Rs.10,000/- to the landlady with a notice, as if the it was demanded by her as additional advance amount. But the landlady had refused to receive the same and returned the same with a reply notice, which was marked before the learned Rent Controller as Ex.P.2.

10. According to the learned counsel for the revision petitioner, the subsequent events like handing over of vacant possession by Hiralal in respect of another non-residential building to the landlady, which was not used by the tenant for residential purpose of her newly married son as claimed in the petition, are to be taken note of by the Court in a petition under Section 10(3)(a)(iii) of the.

11. The relevant observation on which reliance was placed by the learned counsel appearing for the revision petitioner in the ratio in AIR 1975 SC 1409 [LQ/SC/1975/124] (Pasupuleti Venkaeswarlu Vs. The Motor & General Traders) runs as follows:-

"If the fact of the landlord having come into possession during the pendency of the proceedings of shop No.2 is to be taken into account, as indeed it must be then clearly the petition is no longer maintainable under Section 10(3)(iii) of the Act, as the requisite condition for the invoking of that provision has ceased to exist viz., that the landlord was not occupying a non-residential building in the town Building, of course means a portion of a building. As the prerequisite for the entitlement of the petitioner to institute and continue a petition has ceased to exist, it must follow that ABA No.5/1967 is no longer maintainable and must be dismissed."

So once the landlady has failed to use the premises which had been obtained from her tenant Hiralal for residential purpose as claimed in the petition, it is not open to her (landlady) to contend that she requires the petition scheduled premises for expanding the business of one of her sons. When the premises in her occupation, which was surrendered by her tenant Hiralal has more space (450 sq.ft) than the petition schedule building (100 sq.ft) for the purpose of expanding her sons business, it is not open to the landlady to claim that the petition scheduled premises is required for her own occupation ie., for expanding the business of one of her sons viz., Shankar, who is admittedly as per the evidence of P.W.1, is running his own business.

12. For the same proposition of law the learned counsel for the revision petitioner would rely on 1981(3) SC 605 (Hasmat Rai & another Vs. Raghunath Prasad), wherein the relevant observation runs as follows:-

"Therefore, it is now incontrovertible that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlords requirement is wholly satisfied then in that case his action must fall and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the court to take into consideration subsequent events. He can be precluded from so contending when the decree or order for eviction has become final."

13. Once the landladys requirement on the ground of personal occupation has been set aside by installing 3 HP motor in the premises surrendered by Hiralal, which is more spacious than the petition scheduled premises, to expand the business run by her son Shankar, then it is not open for the landlady / respondent herein to claim the petition scheduled premises under Section 10(3)(a)(iii) of the. Section 10(3)(c) of theruns as follows:-

"Section 10(3)(c):- A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be."

There is absolutely no material placed before the learned Rent Controller to show that the building in which both Shankar and Vijay, the sons of the landlady, carrying on business forms part of the building under the occupation of the revision petitioner herein. Once the landlady has filed a petition under Section 10(3)(a)(iii) of the Act, in my view it is not open to the landlady to claim her relief under Section 10(3)(c) of thealso. The fact remains that after obtaining vacant possession from Hiralal, the landlady has not chosen to utilize the same for residential purpose as claimed in the petition, instead she had installed 3 HP motor so as to expand M/s. Jayalakshmi Polishing Works in the said premises obtained from Hiralal. Under such circumstances, the findings of the learned Rent Control Appellate Authority as to the fact that the landlady is entitled to an order of eviction under Section 10(3)(a)(iii) and 10(3)(c) of thewarrants interference from this Court.

14. In fine, the Civil Revision Petition is allowed and the judgment of the learned Rent Control Appellate Authority in RCA.No.315 of 2001 on the file of the VII Judge, Court of Small Causes, Chennai, is set aside and the RCOP.No.2026 of 1997 on the file of the XVI Judge (XV Court incharge), Court of Small Causes, Chennai, is dismissed. Connected Miscellaneous Petition is closed. No costs.