Andhra HC (Pre-Telangana)
Thanheri Muni Sankaraiah vs Bojjala Raja Reddy on 18 November, 2002
Equivalent citations: 2003(2)ALD66, 2003(1)ALT292, 2003 A I H C 1107, (2003) 1 RENCJ 245, (2003) 1 ANDH LT 292, (2003) 1 ANDHWR 269, (2003) 2 RENCR 588, (2003) 2 ANDHLD 66
ORDER G. Bikshapathy, J.
1. The Civil Revision Petition is filed under Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act against the orders passed by the learned Senior Civil Judge, Srikalahasti in CMA No. 3 of 2002 dated, 16-7-2002 confirming the Order and Decree passed by the learned Principal Junior Civil Judge, Srikalahasti in RCC No. 1 of 1999, dated 8-2-2002.
2. Petitioner is the tenant. Respondent is the landlord. For the sake of convenience the parties are referred to herein according to jural relationship. Landlord filed a petition before the learned Rent Controller in RCC No. 1 of 1999 seeking eviction of the tenant from the premises bearing No. 16-539 situated at Sreeramnagar Colony, Srikalahasti town on the ground of wilful default, bona fide requirement and for effecting necessary repairs. It was the case of the landlord that the tenant committed wilful default of payment of rent from the month of January, 1999 and therefore, he is liable for eviction. It is also his case that the premises in question was bona fide required for his daughter for running computer courses centre and his daughter is a Post-Graduate in Arts and also Certificate Holder in Computers and that they do not have any non-residential accommodation for running this business. Therefore, the premises was bona fide required for starting the computer centre. The last ground on which the premises was sought to be evicted was that the building is giving cracks and it requires immediate repairs, otherwise, it endangers to the inmates of the premises.
3. The matter was resisted by the tenant on the ground that there was no wilful default and the rent was being paid within time. It is only since the landlord sought for enhancement of the rent, which was refused and therefore, the present application is filed on frivolous grounds. With regard to the bona fide requirement, it was the case of the tenant that it is a composite lease though mulgi was leased out, a portion of the mulgi was used as tea shop and the balance is being used as a residence for the last several years right from 1969 and that the suit premises was sold by the landlord in 1988 from the original owner and the same situation continued even after the premises was leased out and the bona fide requirement is disputed. It is stated that it is only to ruse to evict the tenant from the demised premises as he failed to pay the enhanced rent.
4. With regard to the repairs, it is stated that there was no major repairs and only minor repairs could be attended and that too be attended keeping the business on and therefore, it is not the requirement of the eviction of the tenant on that ground.
5. Three witnesses were examined for the landlord and Ex. A1 to A10 were marked and three witnesses were examined for the tenant and Exs. B1 to B22 were marked.
6. The learned Rent Controller after considering the evidence available on record came to the conclusion that the ground of wilful default is not established. However, the learned Rent Controller recorded a finding that the premises was bona fide required for the business of the daughter of the landlord and that the premises was also required for repairs. Accordingly, ordered eviction by an order dated, 16-7-2002, against which the tenant carried the matter in appeal before the learned Senior Civil Judge, Srikalahasti in CMA No. 3 of 2002. The learned appellate Court by an order dated, 16-7-2002 dismissed the appeal filed by the tenant confirming the order of the learned Rent Controller. Thus, the present Civil Revision Petition has been filed by the tenant challenging the Order of the learned appellate authority has confirmed in the learned Rent Controller.
7. The learned Counsel for the petitioner submits that the authorities below completely failed to take into consideration the nature of the lease existing between the parties. According to him, the lease is a composite lease in the sense that a portion of the demised premises was being used as tea shop and the balance portion is being used as residence for the last several years and therefore, once it is composite lease, the landlord cannot seek eviction on the ground of bona fide requirements for non-residential purpose only. He relies on the decisions of the Supreme Court reported in Miss. S. Sanyal v. Gian Chand, , Firm Panjumal Daulatram v. Sakhi Gopal, , and Vijaya Kumar Patangay v. Kedarnath, , which will be referred to in the succeeding paras.
8. On the other hand, the learned Counsel for the tenant (sic landlord) submits that composite lease as is being stated by the tenant is not borne out by any record except his testimony and that admittedly the mulgi was leased out and mulgi cannot be used for residential purpose namely the tenant of the making use of both for business and for non-residential and residential purpose. He relies on the decision of the Supreme Court reported in Jyothi Automobiles, Hyderabad v. Khet Bai, , Boddu Narayanamma v. Sri Venkatarama Aluminium Company, 1999 (3) An. WR 123 (SC) and other cases.
9. The Counsel would also submit that the finding of the Courts below are wholly perverse and run count to the evidence on record and this Court is entitled to interfere with in the revisional jurisdiction under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act. He refers to the decision of mine in Bhupendra N. Patel v. Harshavardhan Chokkani, , where review under Section 22 of the Act have been set out.
10. The issue that arises for consideration is whether the order of the authorities below are sustainable in law?
11. As already stated by the learned Counsel for the petitioner that there is no dispute about the parameters of the revisional jurisdiction under Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act and this Court has clearly held as follows;
"The revisional jurisdiction of the authority constituted under a particular enactments to be exercised within the framework of the statutory provision and it cannot be equated with the appellate jurisdiction. The distinction has already been drawn by the Supreme Court in catena of decisions. Thus, if a finding of fact is based on legally admissible evidence, such a finding cannot be disturbed by a Revisional Court exercising the revisional power. The revisional power under Section 22 is apparently wider than that of the power under Section 115 of CPC. The Revisional Court has to satisfy itself to the legality, regularity and propriety of the order of the Subordinate Court. The jurisdiction enables the Revisional Court to examine correctness of the finding of fact also in appropriate cases where the finding was rendered without there being any evidence or considering the evidence which was not relevant. Thus, the re-appreciation of the evidence if it is an Appellate Court is not permissible. But, yet, if the finding is illegal or irregular can be corrected in the revisional jurisdiction. For this purpose, this Court need not refer to the entire evidence, but at the same time, if the finding arrived by the lower Court was such that it was perverse and no person of ordinary prudent could come to such a finding, it has to be declared as perverse finding and it can be corrected in the revisional jurisdiction. Thus, the interference of the Revisional Court cannot be totally ousted not only on the question of law, but also on finding of fact provided, the said finding was not based on any evidence or if the finding is contrary to law."
12. The facts are not much in dispute. With regard to the issues, which are decided by the Courts below, as far as the wilful default is concerned, the same was not established by the landlord and the same was confirmed by the Appellate Court. Therefore, the only issue which falls for consideration is whether the findings recorded by the Courts below on the question of bona fide requirement and repairs is justified?
Composite Lease:
13. The issue that arises for consideration is whether the lease is a composite lease or it is a lease covering only the non-residential. While, it is the case of the landlord that it is a mulgi, which is predominantly used for business, the tenant tried to set up plea of the composite lease stating that some portion was being used for tea stall and the balance portion is used as residential and it is being used for the last several years to the knowledge of the landlord and it is a composite lease. In such a case, eviction of the premises cannot be sought, it is required for using the same for non-residential purpose. It is no doubt true that if the lease is a composite one specifically demarcating the residential and non-residential portion, the landlord cannot seek eviction of non-residential portion for residential purpose and vice versa, subject to statutory provisions contained in respective rent laws enacted by various States. But, here the principal question that calls for consideration is whether the nature of the lease has been established. Admittedly, there is no written lease between the parties. Even prior to the purchase by the landlord, there was no written lease. It was being used as tea stall and the tenant for his personal convenience has been using rear portion of mulgi for residential purpose. The characteristic of the mulgi is the deciding factor. The very nature of the demised premises being a mulgi, presupposes that it could only be used for non-residential purpose. May be the tenant is using a portion of the mulgi for his own requirement by utilising the back portion as residential purpose. By that process itself one cannot come to the conclusion that it is a composite lease. The decisions dealt with by the Supreme Court as relied on by the learned Counsel for the petitioner are the cases where specific portions as such were leased out for specific purpose namely residential and non-residential within the same premises. That situation is not present in the case on hand. Admittedly, mulgi was leased out and it was being used for dual purpose by the tenant. In the absence of any documentary evidence to sustain it is a composite lease, it would not be possible for this Court to hold that the lease in the present case is a composite lease. Moreover, if the lease is a composite lease, the burden lies on the tenant to establish that it is a composite lease. Except his own interested testimony, no other evidence was adduced, not even the earlier owner from whom he obtained the mulgi on lease was examined to support the contention. Further the fact that the tenant only paid municipal tax for the tea stall and no property tax was paid for the alleged residential portion lends support to the conclusion that there was no composite lease and it was only a lease of mulgi. Even assuming it is a composite lease, let us consider the cases relied on by the learned Counsel for the parties.
14. The learned Counsel would submit that when once it is established that it is composite lease, no petition is maintainable for eviction for the purpose of non-residential use and the learned Counsel relying on Sanyal 's case (supra) refers to paras 3 and 6, which are extracted below:
"3. In the present case the First Appellate Court held that the house was 'let out for running a school and for residence'. The High Court held that where there is a composite letting, it is open to the Court to disintegrate the contract of tenancy, and if, the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which 'is being used' by the tenant for residential purposes. In so holding, in our judgment, the High Court erred. The jurisdiction of the Court may be exercised under Section 13 (1)(e) of the Act only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under Section 13(1)(e) of the Act limited to the portion of the demised property which 'is being used' for residential purposes.
6. In this case the letting not being solely for residential purposes, in our judgment, the Court had no jurisdiction to pass the order appealed from. We may note that a Division Bench of the Punjab High Court in Kumar Behari v. Smt Vindhya Devi (1) has held in construing Section 14 (i) (3) of the Delhi Rent Control Act 59 of 1958, material part whereof is substantially in the same terms as Section 13(1)(e) of the Delhi and Ajmer Rent Control Act, that 'where the building let for residence is the entire premises it is not open to the Court to further sub-divide the premises and order eviction with respect to a part thereof In our view that judgment of the Punjab High Court was right on the fundamental ground that in the absence of a specific provision incorporated in the statute the Court has no power to break up the unity of the contract of letting and attribute incidents and obligations to a part of the subject-matter of the contract which are not applicable to the rest."
15. In Sakhi Gopal's case (supra), the Supreme Court held in para 4 as follows:
"The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under Section 12 of the Madhya Pradesh Accommodation Control Act, 1961. The said Act defines 'accommodation' thus:
'Accommodation' means any building or part of a building, whether residential or non-residential and includes.
x x x x x It follows that an accommodation can be residential, non-residential or both. Section 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein. Section 12(1)(e) and (f), bearing on the present case, may be appropriately extracted here:
'12. Restriction on eviction of tenants--(1) (a) to (d) x x xx
(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in the occupation in the city or town concerned;
(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;
xxxx The residential portion is a part of the building and is an accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bona fide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement. We have already found that the final Court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non-residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law."
16. In Vijaya Kumar's case (supra), the learned Single Judge of this Court after referring to most of decisions including Sakhi Gopal's case (supra), observed thus:
"In this revision petition, this Court cannot record a finding as if the schedule premises was let out for composite purpose. Be that as it may, Ex.P1 executed by the respondent/ tenant in categorical terms says that the schedule premises is let out on rent to the respondent/tenant for doing 'cloth business'. It does not even say that the schedule premises is let out for non-residential purpose. It even specifies the name of the business. It is an admitted fact that the respondent/tenant is carrying on cloth business in the ground floor. Both the authorities below held that the first floor of the schedule premises is being used by the respondent/tenant for residential purpose. I cannot interfere with that finding of fact. But the question is whether the eviction petition filed by the petitioner/landlord can be dismissed on the ground that it is a composite lease. Ex.P1, instrument is absolutely specific and clear. It does not suggest any composite lease. It clearly suggests that the schedule premises were let out only for non-residential purpose. The schedule premises is required to be used by the respondent/tenant only for non-residential purpose. The use of a portion of the schedule premises for residential purpose, itself, would not make the schedule premises both residential and non-residential one. But putting the first floor of the premises for residential use by the respondent/tenant may not have impaired the utility of the building but he certainly used the building for a purpose, other than the one for which it was leased out and such use itself is a ground for eviction of die respondent/tenant. It is not as if the petitioner/landlord now wishes to convert the residential building into a non-residential building. It is his case that the schedule premises is required by him for setting up his own business."
17. The Supreme Court in Boddu Narayanamma's case (supra), referred to all previous cases on the issue relating to composite lease including Sanyal's case (supra) and Sakhi Gopal's case (supra). The Supreme Court considered in extenso the provisions of the Rent Control Acts with the A.P. Act and observed thus:
"15. For appreciating the above noted decisions, it may be pointed out here that though the A.P. Act, the Tamil Nadu Act, the M.P. Act, the Rajasthan Act and the Delhi Act are in pari materia, yet provisions of these Acts dealing with grounds of eviction of a tenant for personal requirement of residence of a landlord are not in haec verba.
(16) Since the three cases decided by this Court, referred to above, arose under Section 13(1)(e) of the Delhi Act, it will be useful to quote that provision here:
"13(1)(e): Protection of a tenant against eviction (1) Notwithstanding anything to the contrary contained in any other law or any control, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied.
(e) that the premises let for a residential purposes are required bona fide by the landlord who is owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation:
Explanation :--For the purposes of this clause, "residential premises" include any premises which have been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;
A perusal of this provision reveals that the ban imposed by Section 13(1), that no decree or order for the recovery of possession of any premises in favour of the landlord against any tenant shall be passed, is lifted in case of an owner-landlord of a premises who bona fide requires it for occupation as a residence for himself or his family, provided that the premises was let for a residential purpose and the landlord has no other suitable accommodation. The explanation makes it clear that if the premises let for residential purposes is used for commercial purposes without the consent of the landlord it will continue to be a residential premises. In other words, if the premises let for residential purposes is actually used for commercial purposes but without the consent of the landlord, the landlord can seek the eviction of the tenant under Section 13(1)(e) as the character of the premises is statutorily retained as a residential premises. This is so because the Delhi Act does not provide for eviction of the tenant from the premises other than residential premises on the ground of bona fide requirement of the landlord, (S. Sanyal's case).
(17) It may be noticed here that the provisions of Section 10(3)(a) of the A.P. Act and Section 13 (1)(e) of the Delhi Act are not in haec verba, whereas the former provides for eviction of a tenant both from residential and non-residential premises on the ground of bona fide requirement of the landlord, the latter provides for eviction of a tenant on that ground from a residential premises only and not from a non-residential premises. For this reason, the judgments in the aforementioned cases decided under Section 13(1)(e) of the Delhi Act cannot be applied to cases arising under Section 10(3)(a) of the A.P. Act or Section 10(3 (a) of the T.N. Act which are in haec verba. Section 12(e) and (f) of the M.P. Act is substantially similar to the said provisions of the A.P. Act and the T.N. Act but Section 13(1)(h) of the Rajasthan Act is wider than the provisions of the A.P. Act and the T.N. Act."
While considering the A.P. Act, the Supreme Court observed thus:
(20) It is true that under the A.P. Act, there is no bar to convert a non-residential building into a residential one though Section 18 mandates that no residential building shall be converted into a non-residential building except with the permission in writing of the Controller.
(21) We shall now advert to Section 10(3)(a) of the A.P. Act under which the instant case arises and it will be apt to quote it here:
"10(3) (a): A landlord may subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building-
(i) in case it is a residential building-
(a) if the landlord is not occupying a residential building of his own in the city, town or village concerned and he requires it for his own occupation;
(b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead, for his own occupation;
(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use and if he is not occupying any such building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise;
(iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise-
(a) for the purpose of a business which he is carrying on, on the date of the application; or
(b) for the purpose of a business which in the opinion of the Controller the landlord bona fide proposes to commence:
Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered:
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."
(22) The provisions, extracted above, specify the grounds for eviction of a tenant from a residential building as well as from a non-residential building. Sub-clause (i) of Clause (a) of Sub-section (3) of Section 10 deals with eviction of a tenant from a 'residential building'. It says that a landlord may apply to the Rent Controller for an order directing the tenant to put the landlord in possession of a residential building on any of the two grounds, namely (a) if the landlord is not occupying a residential building of his own in the city, town or village concerned and he requires it for his own occupation; and (b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead, for his own occupation. Sub-clause (ii) thereof deals with the eviction of a tenant from a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use provided he is not occupying any such building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise. Sub-clause (iii) thereof furnishes the ground for eviction of a tenant from a non-residential building other than that falling under Sub-clause (ii); if the landlord is not occupying a non-
residential building in the city, town or village concerned which is his own or to the possession of which he is entitled under the Act or otherwise and he requires it (a) for the purposes of a business which he is carrying on, on the date of the application; or (b) for the purpose of a business which, in the opinion of the Controller, the landlord bona fide proposes to commence, he may seek eviction of the tenant. These provisions are subject to two restrictions; (i) a person who becomes a landlord by an instrument inter vivos after the commencement of the tenancy cannot apply under that clause before the expiry of three months from the date of registration of the instrument; and (ii) where the landlord has obtained possession of a residential building under that clause, he will not be entitled to apply again under it whether he has obtained possession of a residential or a non-residential building of his own.
It is not necessary to refer to the other provisions of Section 10 for purposes of the present discussion."
18. Interpreting Section 2(iii) and Section 10(3)(a), the Supreme Court held thus:
"(23) A combined reading of Section 2 (iii) and Section 10(3)(a) of the A.P. Act indicates that when a residential building or a non-residential building or parts thereof are let separately for residential and/or non-residential purposes, the provisions of Section 10(3)(a), namely, Sub-clause (i) in case of a residential building and Sub-clauses (ii) and (iii) in case of a non-residential building, can be invoked and on the requirements thereof being satisfied a landlord can seek eviction of a tenant therefrom. However, there is no separate provision under which eviction of a tenant can be sought from a building, having both residential and non-residential portions, held under a composite lease. For this reason, the High Court held that as the demised building was let out for residential and non-residential purposes under a composite lease to the respondent, the eviction petition of the appellant on the ground of her personal requirement of residence was not maintainable. In the result, the appellant is placed in such a position that she cannot seek recovery of possession of the demised building, not even of the residential portion, from the respondent by approaching the Rent Controller. She cannot also seek decree for eviction against the respondent on the aforementioned ground from Civil Court because the building is found to be within the purview of the A.P. Act. In such a situation is she without any remedy? The riposte, in our view, is in the negative.
(24) There is nothing in the A.P. Act to suggest that the right of a landlord like the appellant to recover possession of the demised building from the tenant-respondent is taken away either expressly or by necessary implication. Once it is held that a building having both residential and non-residential portions which are let out together under a composite lease is a building within the meaning of that term and within the ambit of the Act, such a building has to fall within one or the other category, namely, residential or non-residential -- the classification which is made in Section 2(iii) of the A.P. Act. We find it difficult to infer that the Legislature having brought such a building within the ambit of the Act and having provided for eviction of a tenant on the ground of personal requirement of the landlord from such a building when it is let out for residential purposes or for non-residential purposes or separately for residential and/ or non-residential purposes and having not taken away the right of the landlord to eject the tenant from such a building left him in the lurch without providing the remedy of eviction of tenant when let out under a composite lease. We cannot construe the provisions of the A.P. Act in that way. We have, therefore, to discern the remedy under the A.P. Act on the principle embodied in the maxim ubi jus ibi remedium. The buildings under that Act are classified as (i) residential and (ii) non-residential. In our view, a buildings having residential and non-residential portion and let out under a composite lease has to be categorised as either a residential or a non-residential building having regard to its nature, accommodation, dominant purpose of lease, primary use of the building and other relevant circumstances on the facts of each case. On such determination, the suit/petition of the landlord has to be decided under Sub-clause (i) or Sub-clauses (ii) or (iii) of Clause (a) of Section 10(3) of the A.P. Act, as the case may be. It may be noticed here that under Section 10(3)(a) of the A.P. Act, the relief is granted with reference to the nature of the building and not with reference to the purpose for which it is let."
19. In Jyothi Automobiles case (supra), the learned Single Judge of this Court held that eviction on the ground of bona fide requirement, when three more shops were fallen vacant in the premises, was held to be not sustainable. The facts in this case are different and distinct. Hence, this decision is not applicable.
20. Reliance was also placed by the learned Counsel for the petitioner on Savani Transport Private Limited, Rajahmundry v. Datti Venkateswara Rao, , and Harishchandra Vidyarthi v. Meenakshi Shah, . In earlier case the learned Judge held that for the purpose of obtaining eviction from a non-residential premises, it must be established that the landlord must not be occupying other non-residential premises which is his own or to the possession of which he is entitled. In the latter case, the learned Single Judge observed thus:
"When an application is filed under Section 10(3)(b)(iii), even if bona fide requirement is proved for self-occupation of commencing business, the landlord should fail if he is in occupation or deemed to be in occupation of a building owned by him. In such an event, the purpose of self-occupation is legally not bona fide. However, if the landlord is in occupation of a rented building, the same is not a bar for seeking eviction under Section 10(3)(b)(iii).
In the instant the landlords do require the building for commencing their own business.
The landlord can only maintain petition on the ground of bona fide requirement under Section 10(3)(b)(iii) of the Act, only when the landlords are not in occupation of a building which is owned by them and to the possession of which they are entitled to. It is admitted that not only the western side of the premises in question and also two other portions on the eastern side are vacant, and in occupation of petitioners as owners, to the possession of which the landlords are entitled to occupy for commencing business. Therefore, though the landlords have pleaded and proved that they require the building for commencing business in electrical goods, in view of the admitted position that other portions are vacant, they are not entitled for order of eviction of the tenant, as they do not in law have any bona fide requirement."
But these decisions run counter to the principles laid down by the Supreme Court in Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Company, , A similar contention was raised before the Supreme Court and the same was repelled by observing thus:
"The aspects of quality, size and suitability of the building have been totally put out of consideration. We think this would frustrate the purposes of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. As we view it there is no difficulty in D. Devaji v. K. Sudershana Rao (1994 Supp. (1) SCC 729) standing in the way of the landlord-appellant to have the issue examined from the point of view which would carry out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlord's claim is based lest the manner they are recounted cause prejudice to either of the parties."
21. Thus there is no bar for the landlord to claim eviction of residential/non-
residential premises for bona fide personal occupation irrespective of the fact whether he owns or occupies the said premises. Even in case of composite lease, the dominant purpose is the determinative factor to decide whether the demised premises is a residential or non-residential premises. In the case on hand, no such exercise was made by the tenant.
22. Under those circumstances from the decisions relied on by the learned Counsel for the petitioner, I do not find any merits to accept his contention. On the other hand, the Supreme Court is very categoric on this aspect that when a premises is used for residential and non-residential, the dominant purpose has to govern the situation. Admittedly, the very livelihood of the tenant is by running a tea stall and the dominant purpose as can be held that the premises is being used for non-residential purpose. Under those circumstances, the findings of the Courts below that it is a non-residential portion leased out to the tenant cannot be said to be illegal or contrary to law.
23. The learned Counsel would submit that the appellate authority failed to consider this aspect and passed a cryptic order without discussing the issue and therefore, it requires reconsideration. But, this is also when once it is held that it is a dominant purpose is the non-residential and that the learned Rent Controller has recorded a finding that the premises is required for non-residential purpose by the daughter of the landlord. I do not find that the matter requires reconsideration. It may in some cases, the appellate authority does not discuss the entire issue as if it is an original authority, but when there was an indication that the appellate authority has applied its mind while coming to the conclusion that the Order cannot be set aside on the ground that there was no detailed discussion. The learned Counsel for the petitioner also raised the contention that the convenience of the tenant has not been taken into consideration and that the interest of the tenant is a paramount and the landlord having two other mulgies also vacant prior to filing of the suit, did not try to occupy and on the other hand, he leased out and it is only after three months letting out these mulgies, he filed the present application. That itself shows that there was no bona fides and that the requirement is only a ruse to evict the tenant from the premises and even otherwise comparative hardships ought to have been considered by the authorities below. In this regard, it is to be noted that the other mulgies which have been let out to the other tenants on enhanced rent was prior to the filing of the suit. But, merely because, the application was filed after two mulgies were let out on higher rent, it cannot be construed that it is a mala fide action on the part of the landlord. So long as the landlord establishes the bona fide requirement by adducing satisfactory evidence, the same cannot be reviewed by this Court as if it is an appellate authority. It is not the case that there is total lack of evidence and that the findings are recorded on surmises and conjectures. If there is any evidence available on record, the sufficiency or otherwise of the evidence in coming to a particular conclusion cannot be gone into by this Court. Evidence of the landlord is emphatic on this aspect. The daughter is a Post Graduate and that she is a certificate holder in Computers.
24. Under those circumstances, the finding recorded by the Courts below that the requirement is bona fide cannot be said to be illegal or arbitrary or can it be styled as perverse as there is no evidence on record. The contention that the interest of tenant which has been eking out his livelihood for several years ought to overweigh the requirement of the landlord also does not deserves any consideration. The landlord is a best person to seek eviction of any of the premises required for his purpose. The only ingredients which are to be established that there shall be bona fide requirement on the part of the landlord and that has to be established by the cogent and acceptable evidence.
25. The learned Counsel for the petitioner heavily relied on the decision of this Court reported in Omer Bin Salam Askari v. Dr. Yousuf, , to contend that there was no bona fides on the part of the landlord seeking eviction. The learned Single Judge observed as follows:
"The bona fide is used in this provision could be effectively applied only if the landlord is likely to be exposed to any hardship if he is prevented from commencing a new business from the demised premises. If there is no hardship, the requirement certainly is not bona fide. Even if any hardship is going to be caused, greater hardship is likely to be caused to the tenant because he has no other means of livelihood. The landlord who is a Doctor by profession is not shown to be a person of any scanty means. In that view of the matter, therefore, there can be no constraint on receding a finding that the landlord cannot be held to be bona fide proposing to commence new business from the demised premises."
26. The facts of the present case are entirely different. Here is a case, where the premises is sought to be required for the business of the daughter of the landlord, who is a Post Graduate and unemployed. It cannot be said that there is no bona fide requirement for commencing the business. Admittedly, she possessed the M.A. Degree and having Certificate in the Computers. That itself shows that she is capable of conducing the business in computers and requirement cannot be said to be wholly unrelated to the business. Comparative hardships can be considered when the landlord is already having another business. In this case the business is yet to be commenced.
27. Under these circumstances, I am of the considered view that the findings recorded by the learned Rent Controller as affirmed by the Appellate Court, do not suffer from any infirmities.
28. Coming to the question of repairs, in view of my findings that the bona fide requirement has been upheld, this issue pales into insignificance,
29. Even otherwise, the Courts below concurrently held that it requires for repairs. The learned Counsel tried to convince this Court that the repairs are minor in nature and it could be rectified without disturbing the residence of the tenant. But, since the finding recorded was on the basis of the evidence, interfering with such finding, more especially under revisional jurisdiction is wholly unwarranted.
30. Under these circumstances, I do not find any merits in the Civil Revision Petition.
31. Accordingly, the Civil Revision Petition is dismissed.
32. Taking into consideration the petitioner has been running the tea stall for a considerable length of time, the petitioner-tenant is given six months time to vacate the demised premises. He shall vacate the premises on or before 31-5-2003. He shall pay the rent as usual without any default.
No costs.