Andhra HC (Pre-Telangana)
Pushpa Trading Company vs Boorgu Jagadeshwaraiah & Sons on 24 July, 1998
Equivalent citations: 1998(5)ALD294, 1998(5)ALT348, 1999 A I H C 289, (1998) 2 LS 121, (1998) 5 ANDHLD 294, (1998) 5 ANDH LT 348, (1998) 2 RENCJ 599, (1998) 2 RENCR 591, (1999) 1 RENTLR 35, (1998) 3 APLJ 256
ORDER
1. This revision petition filed by the tenant was earlier heard and allowed by order dated 26-6-1995. Aggrieved by that order the land-lord approached the Supreme Court and in Civil Appeal No.8466 of 1995 the Supreme Court remanded the matter to this Court for considering the objection of the tenant as to the claim of the land-lord. Therefore on remand from Supreme Court this revision petition is taken up for consideration,
2. The facts in brief are as follows:
The landlord-respondent is the owner of the premises bearing No.7-3-697 to 701 situated at Rashtrapathi Road, Secundcrabad. He filed R.C.No.275 of 1978 on the file of the Principal Rent Controller, City Civil Court, Secunderabad for eviction of the tenant-petitioner from the said premises leased out to him on a monthly rent of Rs.460/-, exclusive of water and electricity consumption charges, on the ground of bona fide personal requirements and also on the ground that the tenant committed acts of waste. The said premises is non-residential The respondent-landlord is carrying on the business in wholesale cloth in partnership under the name and style of 'Boorugu Textiles' in a rented premises No.2096 and 2097, situated at Tobacco Bazar, Secunderabad. Since the demised premises are required for carrying on wholesale cloth business, the landlord filed the rait case before the Rent Controller for eviction of the tenant, which was allowed. The tenant-petitioner filed the appeal against the order of eviction in R.A.No.342 of 1997 on the file of the Chief Judge, City Small Causes Court, Hyderabad, who confirmed the order of the trial Court. Against that order the tenant preferred the present revision.
3. In this revision the only argument advanced at the time of hearing was that during the pendency of the proceedings the land-lord acquired a non-residential premises at Begumpct and therefore the bona fide personal requirement of the demised premises by the landlord ceased to exist and consequently the revision petition should be allowed dismissing the eviction petition filed by the landlord. On the basis of the submission made by the tenant, I have called for a report from the Rent-Controller as to the suitability of the building constructed by the landlord in Begumpct for the purpose of carrying on wholesale cloth business. The Rent-Controller submitted his report on 27-9-1994 on a consideration of the evidence of PW1 and RW1, which reads as follows :
"Textile business is not a sellers party but it is buyers patty. The textile business is unlike the profession of a doctor. The customers if will not secure cloth which they require in a particular shop they will immediately go to the next shop and purchase the cloth. They will not go to a far of place for purchasing cloth leaving all the shops in the area of the cloth business. Therefore even if the cloth business is being run in the building at Begumpet no customer will come and purchase the cloth there leaving all the shops in the area of the cloth business. In view of the above circumstances it is evident that the building at Begumpet is not suitable and convenient for carrying on cloth business. Hence I answer this point in favour of the petitioner and against the respondent."
The Rent-Controller, in other words, found that the building at Begumpet is not suitable for the purpose of carrying on wholesale cloth business.
4. In the civil revision petition the tenant contended that the question of suitability of alternative building is concluded by the Supreme Court in D.Devaji v. K. Sudarshana Rao, therefore this Court cannot go into the same. Therefore the revision petition has to be allowed.
5. Though in ray view the suitability of alternative accommodation is one of the relevant factors to consider the request of bona fide personal requirement of the landlord, since I am bound by the judgment of the Supreme Court in Devaji 's case I have allowed the revision petition and dismissed the eviction petition filed by the landlord, against which the landlord preferred Civil Appeal No.8466 of 1995 before the Supreme Court. While disposing of the Civil Appeal the Hon'ble Supreme Court observed as follows;
"The aspects of quality, size and suitability of the buildings 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 's case standing in the way of the landlord-appellant to have the issue examined from the point of view which would cany out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlord's claim is based lost the manner they are recounted cause prejudice to either of the parties."
The Supreme Court further observed thus:
"We, therefore, upset the impugned order of the High Court, hindered as it felt in proceedings further because of D.Devaji's case and remit the matter back to it for considering the objection of the tenant as to the claim of the landlord. Let the matter be decided by the High Court most expeditiously, preferably within a period of four months from today as the matter is fairly old and has been in Court far too.
6. Holding as above the learned Judges of the Supreme Court have set at naught the principles laid down by the Supreme Court in D. Devaji's case and directed the matter for consideration of the issue in the light of their Lordship's observations. In other words, according to the Supreme Court the suitability alternative accommodation is one of the relevant factors in determining the bona fide requirement of the landlord for eviction of the suit premises.
7. From the order of the Supreme Court it is clear that the only question that acquires consideration is whether the alternative accomodation namely, the building constructed by the landlord at Begumpet is suitable for the purpose of carrying on his wholesale cloth business. Before considering this question, it is pointed out that the Rent-Controller as well as the appellate authority found that the landlord has established his bona fide requirement of the demised premises. Tliis being a finding of fact, the same cannot be interfered with unless it is not based upon material evidence. It is not the case of the tenant that the findings recorded by both the Courts below are not based on material evidence. Therefore finding relating to the bonafide personal requirement of the landlord has become final. The only question is whether the alternative accomodation constructed by the landlord during the pendency of the proceedings is suitable for carrying on his wholesale cloth business.
8. I have already referred to the report of the Rent-Controller holding that the building at Begumpet constructed by the landlord is not suitable for carrying on wholesale cloth business. The learned Counsel for the petitioner-tenant does not dispute the correctness of the said rinding. On the other hand he filed a petition in CMP No.13557 of 1998 seeking permission to adduce additional evidence on the ground that there is changed scenario around Begumpet and a number of cloth shops have come up and therefore the building is now suitable for carrying 011 wholesale cloth business.
9. At this stage it is necessary to refer the contents of the affidavit filed by the tenant in support of the C.M.P, the relevant portion of which reads as follows:
"It is repectfully submitted on this aspect is that a fresh approach is necessary having regard to the present set of facts. On Begumpet road and also Somajiguda and Panjagutta Road and also just near and opposite to the premises now owned by the respondent a number of shops have come into existence and those shops arc dealing in textiles, cloth and readymade garments. The shops are Shoppers Stop, Pantaloon, Cow boy, Cotton club, Monalisa, Route Cotton and Vimal Harmony. I am submitting the photographs of the area and also to prove the existence of textile shops in that area. Moreover, it is necessary that an appotunity should be given to the petitioner for adducing proper evidence on this aspect."
10. To this petition the respondent-landlord filed counter affidavit and paragraph 5 of which reads as follows:
"The allegation in paragraph-2 that the Begumpet Road and also Somajiguda and Panjagutta Road are just near and opposite to the premises now owned by the respondent, number shops have come into existence, which deal in textile, cloth and readymade garments, viz., Shoppers Stop Pantaloon, Cow Boy, Cotton Club, Monalisa, Houte Cotton and Vimal Harmony is not correct. I submit that Somajiguda and Panjagutta X-Roads are anywhere near the showroom of Rahul Automobiles and they arc totally different localities, which are far away at a distance of about 4kms. Shoppers Stop and Pantaloon are departmental stores dealing with readymade garments etc. Likewise, the other shops sell only readymade garments. Vimal Harmony shop deals in furnishing fabrics. AH these shops are situated far away from the premises in question. All the said shops were opened very recently within a span of one year."
11. From a reading of the affidavit, it appears that some textile and readymade garments shops have come up in Somajiguda and Panjaguta Road. While in the counter affidavit the landlord says that the readymade garments shops in Panjagutta and Somajiguda, are 4kms. away from the building which is newly constructed in Begumpet, wherein Rahul Automobile Shop is located. From the affidavit filed by the tenant it is clear that apart from the fact that these readymade garment shops are 4 kms. away from the alternative accommodation, these are only readymade garments shops and none of the shops located are dealing in wholesale cloth business. The undisputed fact is that the landlord wants to deal in wholesale cloth business and therefore unless in the area in which the alternative accommodation is constructed is the centre of wholesale cloth business, it cannot be said that the said building is suitable for the purpose of carrying on wholesale cloth business.
12. Therefore, I am of the view that it is not a case where a further opportunity should be given to the petitioner-tenant to adduce further, evidence as the affidavit does not disclose the existence of wholesale cloth business around the building in question. I therefore reject the prayer of the petitioner-tenant seeking permission to adduce additional evidence.
13. Therefore, from the report of the Rent Controller it is abundantly clear that the premises is not suitable for the purpose of carrying on wholesale cloth business. Even the additional evidence sought to be adduced also does not establish that in the area there are any wholesale cloth business located.
14. The learned Counsel for the petitioner tenant submitted that the landlord has closed his business, that his bona fide personal requirement ceased to exist and that therefore the petitioner for eviction is liable to be dismissed. It is not open to the petitioner to raise this objection in view of the findings of both the Courts below that the personal requirement of the landlord is bona fide.
15. The learned Counsel for the petitioner next contended that in the building constructed at Begumpet the upstairs portion fell vacant in 1980 and he ought to have occupied the said premises for doing wholesale cloth business with the aid of telephone connection. I am afraid I cannot accede to this contention as the tenant cannot dictate to the landlord as to the manner in which he has to carry on his business.
16. The learned Counsel also submitted that the premises at Begumpet is suitable for carrying on cloth business and that the demised premises at R.P.Road is not suitable. The suitability of the premises in R.P. Road does not arise for consideration. Therefore the argument of the learned Counsel for the petitioner cannot be sustained.
17. In view of the above it follows that the new building constructed at Begumpet and let out to Rahul Automobiles during the pendency of the eviction petition is not suitable for the purpose of carrying on wholesale cloth business.
18. The civil revision petition is therefore, dismissed with costs.
19. In normal circumstances this Court would grant six months time to the tenant for eviction of the demised premises. However, having regard to the fact that the proceedings are pending since 1978 i.e., for a period of about 20 years, I direct the tenant to vacate the premises in question and hand over vacant possession of the same to the landlord within three months from today.