Andhra HC (Pre-Telangana)
Manoj Kumar Jain vs Lalchand Ahuja on 21 July, 2000
Equivalent citations: 2000(5)ALD84
Author: I. Venkatanarayana
Bench: I. Venkatanarayana
ORDER
1. This is a revision preferred by the petitioner-landlord against the order of the Chief Judge, City Small Causes Court, Hyderabad dated 28th October, 1996 allowing RA No.244 of 1993 and setting aside the order of eviction dated 12th April, 1993 passed by the Rent Controller, Secunderabad inRCNo.58 of 1989.
2. The factual matrix leading to the filing of the revision petition is set out as hereunder : The revision petitioner-land lord filed RC No.58 of 1989 on the file of the Principal Rent Controller, Secunderabad seeking eviction of the respondent-tenant from his premises bearing No.7-2-747 situate in General Market Street, Secunderabad on the ground of bona fide requirement under Section 10(3)(a)(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Rent Control Act'). The respondent-tenant resisted the petition and contended that the petitioner-landlord does not require the premises and he does not have the experience in the jewellery business. In short, it is the contention of the respondent-tenant that the petition filed by the petitioner-landlord lacks bona fides. Based on the pleadings the parties were put to trial and based on the oral and documentary evidence, the Principal Rent Controller allowed the petition holding that the suit premises is required for bona fide requirement and ordered eviction of the respondent-tenant. Aggrieved by the order of the Rent Controller, the respondnent-tenant filed a statutory appeal in RA No.244 of 1993 on the file of the Chief Judge, City Small Causes Court. Before the appellate authority the landlord filed IA No.1586 of 1994 and added para 7-A to the eviction petition to the effect that the appellant-tenant has secured alternative accommodation at the premises bearing Municipal No.7-1-513 and 7-1-513/13 situate at Subhash Road, Secunderabad and he is carrying on Lodging business under the name and style of 'Rahul Lodge' and, therefore, he is liable to be evicted from the schedule premises on that ground also. The appellant-tenant also filed IA No.1427 of 1994 seeking to add additional ground and added paragraph 3 (a) to his counter to the effect that the Rent Control Petition is verified and signed by one Jathan Raj Jain, S/o. Madan Raj Jain without the authority of the landlord and as such it is in contravention of Rule 7(3) of the Rent Control Act and the eviction petition is not maintainable in law. Based on the above pleadings and additional pleadings of the respective parties, the appellate Court has addressed itself to the following issues:
1. Whether the landlord is entitled to seek eviction of the tenant on the ground of bona fide requirement?
2. Whether the landlord is entitled to seek eviction of the tenant on the ground that the tenant has secured alternative accommodation?
3. Whether the eviction petition is not maintainable as it is not verified and signed by the landlord or by a person authorised by him?
3. The appellate Court also permitted additional evidence and received additonal documents from both the appellant and the respondent. Based on the oral and documentary evidence including the additional evidence, the appellate authority allowed the appeal holding all the issues in favour of the appellant-tenant and dismissed the eviction petition. Aggrieved by the said order of the appellate authority allowing the appeal and dismissing the Rent Control Case, the petitioner-landlord filed the present revision petition.
4. Sri S. Balchand, learned Counsel for the revision petitioner-landlord assailed the judgment of the appellate authority and contended that the appellate authority erred in reversing the well-considered judgment of the Principal Rent Controller. He contended that the appellate Court has misdirected the enquiry and failed to understand that even in HUF there is a category of specified and unspecified HUF under the Income Tax Act. He elaborately contended that admittedly the respondent-tenant secured alternative accommodation and is running lodging business under the name and style of 'Rahul Lodge'. The appellate Court, having accepted the fact that alternative accommodation has been secured by the respondent-tenant, has erred in coming to the conclusion that he is not running textile business in the alternative accommodation and therefore it cannot be construed that he has secured alternative accommodation. According to his submission, such an approach is totally contrary to the well-established legal principles. The learned Counsel for the petitioner-land lord further contended that there was typographical error in mentioning the name of the petitioner in the verification column. It bears the signature of the petitioner. It appears that the Typist has copied the verification from some other petition and incorporated the same name. In support of his contention he relied on Exs.P8 and P9. He also relied on Ex.P11 Xerox certified copy of RC No.38 of 1989 on the file of the Principal Rent Controller, Secunderabad filed by Mr. Jathan Raj Jain.
5. Sri Anup Kumar, learned Counsel for the respondent-tenant supported the findings of the appellate authority and contended that the petitioner-landlord failed to establish his bona fide requirement. It is his contention that the landlord has failed to prove his divided status and therefore the appellate authority was justified in allowing the appeal. He argued that Ex.P7 income tax assessment order shows the status as HUF unspecified and hence it should be construed that he has not divided from the family. He placed strong reliance on the ground that the verification has not been signed by the petitioner and hence the eviction petition itself is not maintainable. On the question of securing alternative accommodation it is submitted that he is only a partner in the 'Rahul Lodge' and that cannot be deemed to have secured alternative accommodation for the purpose of running his business.
6. Taking into consideration the rival submissions, I shall address myself firstly to the question 'whether the petitioner-landlord requires the premises for his bona fide requirement?' The burden of proving that the premises is required for the bonafide requirement is heavily on the petitioner-landlord. For the purpose of discharing this burden the oral and documentary evidence placed before the Court has to be examined. The petitioner-landlord examined himself as PW1 and deposed before the trial Court that he is the elder son in the family and that he is working in his father's shop on a monthly salary and that he is residing in House bearing No.7-2-312/313 situate in Mission School Street, Secunderabad and that he is the landlord of the premises bearing No.7-2-747 situate at General Market, Secunderabad. He further stated that in the residential premises of 7-2-312/313 his father stays in the first floor and the ground floor is commonly used by all the members of the family. He also spoke to the fact that he is living separately in the same premises after his marriage. Exs.P3 and P9 income tax returns for the years 1989-90 and 1990-91 disclose that the petitioner got married on 26-J-1989 and that there was partition among the family members and that he is working on monthly salary in the jewellery shop of his father. It is also in evidence that the petitioner-landlord does not have any other non-residential premises of his own in the twin cities. From the oral and documentary evidence the petitioner-landlord is able to establish that there is a bona fide requirement for starting his own business and that he has separated from his father and is living separately after his marriage. The bona fide requirement of the landlord has to be viewed from the objective point of the landlord but not on the subjective satisfaction of the tenant. The Apex Court in a judgment reported in V. Radhakrishnan v. S.N. Loganatha Mudaliar, , while construing the concept of 'bona fide requirement of landlord' has held that the fact that landlord is in occupation of a non-residential building in the same city would not bar eviction of a tenant from non-residential building for business of landlord's family members if such family member is not in occupation of any other non-residential building in the city.
7, A learned single Judge of this Court in a judgment reported in N. Chenchuramaiah v. Syed Nawabjan, , held as follows:
"Where the landlord who is a joint owner cannot have the exclusive enjoyment of the joint house especially when he was living with other joint owner or joint owners, the landlord cannot be asked to suffer by living with joint owners when he is having his own house which exclusively belongs to him and which is in occupation of the tenant and if he gets possession of the same, he can occupy it exclusively for himself."
8. In another judgment of the Apex Court reported in Smt. Prativa Devi v. T.V. Krishnan, , it was held that the bond fide requirement of the landlord has to be viewed from his convenience and that the landlord is the best judge of his requirement. In view of the aforementioned judgments, it is clear that the of the landlord takes priority than the necessity of the tenant to stay in the tenanted premises. The Apex Court had also an occasion to deal with the concept where the landlord is not occupying a non-residential building as his own and held that the bona fide requirement of the landlord is to be seen where he is actually in possession and is occupying the premises as his own. Hence it is not for the tenant to take the stand that the landlord can very well stay in the joint family premises along with others without claiming eviction. Once the landlord establishes that he intends to start his own business and that the premises is required for his own bona fide requirement, it is not for the tenant to contend that a person having no practical experience in that particular field is incapable of starting the business. The Apex Court in the judgment reported in Dattatrayalaxman Kamble v. Abdul Rasul Moulali Kotkunde, , held as follows:
"If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business has flourished in this country by leaps and bounds which was started by a novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned single Judge that acquisition of sufficient know-how is a precondition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that "no experience no venture."
9. As against the above discussed oral and documentary evidence and the legal position, the respondent-tenant resisted the eviction petition contending that the landlord has failed to prove that he has separated from the joint family. The learned Counsel for the respondent-tenant has addressed himself to the concept of 'Hindu undivided family' and contended that the income tax assessment order by itself does not establish that he has separated from the family. He referred to the judgment of the Supreme Court reported in Bharat Singh v. Bhagirathi, for the proposition that there is a strong presumption in favour of the Hindu brothers constituting joint family and it is for the person alleging severance of the joints family to prove it. I am afraid the learned Counsel has not understood the scope of the bona fide requirement as enunciated in the statue. In the present case the landlord was able to prima facie establish that he has separated himself from his father through the registered documents and income tax assessment orders and it is not for the joint family to dispute those facts. This Court would only confine itself to the legal concept set out in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The appellate Court while dealing with the concept of 'bona fide requirement' has misdirected the enquiry and started scrutinizing the income tax assessment orders and came to the conclusion that there is no justification for the landlord to claim that he intends to start his own business separately. The appellate Court, having found that the landlord was paying the income tax separately in his individual capacity, has at the same time, held that there is no bona fide requirement. The appellate Court also found that they are all living in one portion and expects them to live as a joint family for ever. As discussed supra, the landlord is the best judge in deciding or choosing his own accommodation. For the aforementioned discussion I hold that the landlord is entitled to evict the tenant on the ground of his bona fide requirement.
10. Now I will address myself to the second question of alternative accommodation. It is an admitted fact that the tenant is running a lodge under the name and style of "Kabul Lodge". The appellate Court took into consideration the fact that he is not running textile business but he is only running lodge and hence it cannot be deemed to have secured alternative accommodation. Under Section 10(2)(v) of the Rent Control Act when a tenant secured an alternative accommodation for doing business it does not specify that he should run the same business or different business. It is not open to the tenant to contend that he is only a partner and hence dies own his business. Therefore, I hold that the respondent-tenant has secured alternative accommodation as contemplate under Section 10(2)(v) of the Rent Control Act. The petitioner-landlord is entitled to evict the respondent-tenant even on this ground also,
11. The respondent-tenant has challenged the very filing of the eviction petition on the ground that the verification petition was signed by some other person and not by the petitioner-landlord. For this purpose he has invited my attention to the signature in the verification in the original eviction petition. The explanation given by the petitioner-landlord is that the eviction petition which was filed by one Jatan Raj Jain was shown mistakenly in the verification portion but the signature of the landlord is in conformity with his signature as compared to Exs.P8, P9 and P11. I have also verified the signature of the petitioner-landlord and found that it was signed by the petitioner-landlord and there is a typographic mistake crept in the verification in mentioning the name of the petitioner. This by itself cannot be held that the verification was not signed by the petitioner-landlord. Based on the over all oral and documentary evidence let in by the parties, I hold that the verification petition was signed by the petitioner-landlord himself.
12. On a over all appreciation of the entire oral and documentary evidence and the legal position, I hold that the petitioner-land lord is entitled to evict the respondnent-tenant on the ground of bonafide requirement and also on the ground of respondent-tenant securing alternative accommodation. The judgment of the appellate Court is, therefore, set aside and the order of eviction passed by the Principal Rent Controller is restored and RC No.58 of 1989 is allowed. The revision petition is accordingly allowed. There will be no order as to costs. The respondent-tenant is granted six months time for handing over vacant possession of the premises to the petitioner-landlord.