Andhra HC (Pre-Telangana)
Nazeer Hussain vs Farooq Ali on 5 February, 2004
Equivalent citations: 2004(2)ALD808, 2004 A I H C 1576, (2004) 2 RENTLR 445, (2004) 2 ANDHLD 808, (2004) 1 ANDHWR 693
ORDER P.S. Narayana, J.
1. Nazeer Hussain, the revision petitioner/landlord, aggrieved by the reversing order made in RA No. 37/94 on the file of Chief Judge, City Small Causes Court at Hyderabad/Appellate authority had preferred the present civil revision petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, hereinafter in short referred to as "Act". The petitioner, hereinafter referred to as "landlord" filed RC No. 191/84 which was renumbered as RC No. 1748/86 on the file f IV Additional Rent Controller, Hyderabad on the grounds of bona fide personal requirement and acts of waste. The learned Rent Controller, after recording evidence had arrived at a conclusion that the personal requirement of the landlord is bona fide, but however, negatived the ground relating to acts of waste and had ordered eviction. Aggrieved by the same, the respondent herein, hereinafter referred to as "tenant" preferred R.A. No. 37/94 on the file of Chief Judge, City Small Causes Court, at Hyderabad/Appellate Authority and the Appellant Authority had allowed the Appeal and had set aside the order of eviction made by the learned Rent Controller. Aggrieved by the same, the landlord preferred the present civil revision petition.
2. Sri Ashok Rama Rao, the learned Counsel representing the landlord made the following submissions. The Counsel would maintain that the landlord is claiming property under oral gift which had been well established by both oral and documentary evidence and hence the question of one of the co-owners claiming relief of eviction does not arise in the facts of the case. Even otherwise, the Counsel would maintain that a co-owner can definitely pray for the relief of eviction. The learned Counsel had pointed out to the factual aspects and had submitted that the Appellant Authority had definitely erred in negativing the relief of eviction on the ground that the landlord is running business along with his brother and hence the landlord cannot claim the relief of eviction. This approach of the Appellate Authority is an erroneous approach. The learned Counsel also had pointed out to the decretal order made in OS No. 1061/84 on compromise memo and the judgment made therein and ultimately the learned Counsel commented that when the alleged other co-owners or other co-sharers had entered into an amicable settlement which had resulted in a decree, the tenant is in no way concerned. The Counsel also had commented about the conduct of the tenant in this regard. The learned Counsel also had placed reliance on certain decisions to substantiate his contentions.
3. On the contrary, Sri Bajrang Singh Thakur, the Counsel representing the tenant made elaborate submissions commencing from the respective pleadings of the parties, the nature of evidence let in by the parties and the findings recorded by the learned Rent Controller and the Appellate Authority as well. The Counsel would maintain that in the absence of a plea in the pleading relating to oral gift, any amount of evidence on record would be of no consequence since such evidence is without a plea and hence on this ground alone the landlord is bound to fail. The learned Counsel also further had pointed out that RC No. 191/84 was initially filed which was renumbered as RC No. 1748/86 and the documents relied upon by the landlord are subsequent thereto and these are all documents which came into existence during the pendency of the litigation and hence the documentary evidence is of no help to the landlord. The Counsel also had pointed out that even if the compromise in OS.No. 1061/84 is taken into consideration, in the light of Section 10(3)(iii)(b) first proviso of the Act, definitely the eviction petition is premature and on this ground also the landlord is bound to fail. The Counsel also would maintain that the fact that the landlord is running business along with his brother is not in controversy and in view of the same, definitely the ground of bona fide personal requirement is not available to the landlord. The Counsel also had placed reliance on certain decision in this regard.
4. Heard the Counsel.
5. The factual matrix in nutshell runs as follows:
6. The landlord filed eviction petition RC No. 191/84 which was renumbered as RC No. 1748/86 on the file of IV Additional Rent Controller, Hyderabad on the grounds of bona fide personal requirement and acts of waste. It was pleaded that the respondent is a tenant of the suit premises on a monthly rent of Rs. 140/- and Nazratunnisa who died on 4-10-1982 and the landlord became the owner and landlord of the said property and he has been collecting rents from the tenant and the tenant also accepted the landlord as landlord after the death of Nazratunnisa. The landlord is a business man having sources of money and also experience to start cloth business and business in stitching bedding, razaai, gaddi, pillows, bed sheets etc., and he intends to commence the said business in the petition schedule premises and hence his requirement is bona fide personal requirement. It is also stated that the landlord is doing business along with his brother jointly at Lad Bazar at premises No. 21-2-351 under the name and style of India Textiles and they decided to separate themselves in the business and except this non-residential premises which had fallen to his share, there is no other non-residential premises. It was also pleaded that the tenant indulged in acts of waste and nuisance and had opened a door unauthorisedly on the Southern side which had impaired the value and utility of the petition schedule building and the tenant also had allowed his neighours Rajeswar to construct staircase on his site attached to the petition schedule premises wall and thus the tenant had committed acts of waste and on both the grounds aforesaid, the relief of eviction was prayed for.
7. The tenant resisted the same disputing several of the allegations. The fact that the tenant obtained the suit premises from Nazratunnisa Begum is not in controversy. It was pleaded that after the death of Nazratunnisa Begum, the landlord herein, Lakhman Mohd. Subhan came independently and claiming that each of them are the exclusive owners of the petition schedule property demanded rents and hence the tenant filed the petition under Section 9 of the Act for deposit of rents. Specific stand was taken that it is false to say that after the death of the Nazratunnisa Begum, the present landlord became the owner and landlord of the petition schedule premises. It is pertinent to note that the tenant not only denied the ground of bonafide personal requirement but also had denied the landlord doing cloth business at Lad Bazar under the name and style of India Textiles along with his brother etc. Acts of waste also had been specifically denied.
8. The learned Rent Controller had recorded the evidence of PW1 to PW4, RW-1 and RW2 and marked Exs.Pl to P22 and Exs.R-1 to R-4. The learned Rent Controller on appreciation of oral and documentary evidence had arrived at a conclusion that the landlord is entitled to the relief of eviction only on the ground of bona fide personal requirement and the other ground of acts of waste had been negatived and ultimately the relief of eviction was granted. The tenant, aggrieved by the same, had preferred R.A.No. 37/94 on the file of Chief Judge, City Small Causes Court, Hyderabad/Appellate Authority wherein the order of eviction made by the learned Rent Controller was reversed. Aggrieved by the same, the present Civil Revision Petition is preferred.
9. At para-6 of the eviction petition, the landlord pleaded as hereunder:
"The respondent is occupying the above premises as a tenant on a monthly rent of Rs. 140/- which does not include water and electricity charges. The present petitioner has become the owner/landlord of the above premises after the death of (previous landlady) his mother Smt. Nazrathunnisa who expired at Hyderabad on 4-10-1982. During the life time of his mother the petitioner was collecting the rents on her behalf from the respondent and he was passing the receipts in her name and on her behalf. After the death of Nazrathunnisa the petitioner has become the owner/landlord of the petition property as is has devolved upon him and thereafter he is collecting the rents and his name is being shown as that of the owner in the rent receipts being issued. The rent receipt book containing the counter foils is filed herewith."
Elaborate arguments had been advanced relating to the aspect that the plea that by virtue of oral gift made by Nazrathunnisa, the landlord became owner of the premises and hence he is the landlord within the meaning of the Act was not specifically pleaded. Reliance also had been placed on Mahboob Sahab v. Syed Ismail, , in relation to the essential conditions to be satisfied in the case of gift under Muslim Law. I had gone through the findings recorded by both the learned Rent Controller and the Appellate Authority. Reasons in detail had been recorded by the learned Rent Controller that in certain other proceedings specific plea relating to the oral gift had been taken, but however the said plea was not specifically pleaded in the present RC. It is also pertinent to note that one of his brothers filed a suit for partition O.S. No. 1061/84 of the file of II Additional Judge in relation to the properties of the mother Nazrathunnisa. The said suit ended in compromise. Apart from Exs.P1 to P3, certified copy of the decretal order judgment of the compromise, certified copy of the compromise memo in OS.No. 1061/84, the evidence of PW1 to PW4 and also the admission made by RW1 in this regard would clearly establish this aspect. Hence, the mere omission to plead oral gift, in my considered opinion, would not alter the situation in any way. It is needless to say that the rent control proceedings are summary proceeding and pleadings cannot be strictly construed in such proceedings. In Mahabir Prasad v. Sri Jai Dayal Dalmia, 2001 (2) RCJ 476, it was held that pleadings need not be strictly construed in rent control proceedings. Reliance also had been placed on Abdul Samad v. Sudha Anant, AIR 1985 Bom. 585, Valarshak v. Standard Coal Company, AIR 1943 PC 159, M. Harischandra Prasad v. Chitturi Krishnamurthy, 1997 (1) ALD 330, Ram Samp Gupta v. Bishun Narain Inter College, and S.B. Noronah v. Prem Kumari Khanna, . In this view of the matter, I am of the opinion that the approach of the Appellate Authority so far as it relates to the non-raising of specific plea of oral gift definitely cannot be sustained especially in the light of the over-whelming evidence available on record and hence the approach of the Appellate Authority in this regard cannot be definitely sustained.
10. Section 10 of the Act deals with Eviction of tenants. Section 10(3)(a)(iii) of the Act reads as hereunder:
"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) ............
(ii) ................
(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 a 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."
Strong reliance was placed on the first proviso to Section 10(3)(a)(iii)(b) of the Act which says "Provided that a person who become 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". The Counsel for the tenant made an attempt to equate the decree made on compromise in OS.No. 1061/84 to that of an instrument specified in the proviso and it was contended that inasmuch as eviction petition was filed before the expiry of three months, the said eviction petition is premature. A careful reading of the proviso would go to show that it is not applicable to the facts of the case. Ex.P1 to Ex.P3 relate to compromise in OS.No. 1061/84. The proviso refers to ".............the date on which the instrument was registered". From the very reading of the language it is clear that the said proviso is not applicable and hence the contention that the eviction petition is premature cannot be sustained. Even otherwise this question was raised on the ground that this is a pure question of law and hence the same can be raised even at the revisional stage. In the light of the view expressed by me that the proviso itself is not applicable, there is no need of further discussing this Point any further.
11. It is no doubt true that as far as the ground of acts of waste is concerned, the learned Rent Controller at paras 14 and 15 while answering Point No. 2 discussed the point in detail and had negatived the relief to the landlord and the same was confirmed by the Appellate Authority. Hence, I do not see any reason to disturb the concurrent factual findings of both the Tribunals below and the said findings are hereby affirmed.
12. The next question that survives for consideration is whether the Appellate Authority is justified in reversing the order of eviction granted by the learned Rent Controller on the ground of bona fide personal requirement of the landlord. The fact that Nazratunnisa was the original owner of the petition schedule premises and this tenant was a tenant under her is not in controversy and the present landlord claims to have become the absolute owner of the said property by virtue of oral gift made by his mother. It is no doubt true that there was some controversy and the suit OS.No. 1061/84 was filed and a compromise was arrived at and the same is clear from the evidence of PW1 to PW4 and also the admission made by RW1 and Exs.P1 to P3. Certain contentions had been advanced by both the Counsel on the aspect whether a co-owner can maintain an eviction petition. Reliance had been placed on K. Lakshmanarao and Ors. v. Gulam Habeeb Khan and Ors., , Super Forgings and Steel (Sales) Private Limited v. Thyabally Rasuljee (dead) through LRs. , and Satyanarayana Singh v. Y. Maniamma, 1991 (1) AIR CJ 260. No doubt the Counsel representing the landlord submitted that it is only in the alternative since the main ground on which the eviction sought is that the landlord is the absolute owner of the petition schedule premises by virtue of oral gift. The oral evidence available on record had been discussed in detail by the learned Rent Controller at paras 9 to 12. In the facts and circumstances of the case when the other co-owners are not raising any objection, a tenant cannot be permitted to raise such objections for the purpose of continuing on the premises or to protect himself from being evicted from the premises. Hence the stand taken by the tenant in this regard cannot be accepted.
13. Yet another strong contention raised by the tenant is that in the light of the evidence of PW-1 and also the plea taken by him that he has been jointly running the business along with his brother, in the light of the provisions of the Act the landlord is not entitled to the relief of eviction. Since factual details are not in controversy, all the details need not be repeated again. The evidence of PW-1 to PW-4, RW-1 and RW-2 and Exs.P-1 to P-22 and Exs.R-1 to R-4 had been discussed at length by both the learned Rent Controller and the Appellate Authority. The main ground on which the Appellate Authority had reversed the order of eviction made by the learned Rent Controller is that in view of the fact that the landlord is doing joint business along with the brother, he is not entitled to the relief of eviction on the ground of bona fide personal requirement. In the decision referred Super Forgings and Steel (Sales) Private Limited v. Thyabally Rasuljee (Dead) through L.Rs (supra), the Apex Court while dealing with a case under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in relation to bona fide requirement of a landlord of a non-residential building held that the statutory requirement is that a landlord should not be occupying for his business another non-residential building in the city 'which is his own', for claiming benefit of the ground of eviction under Section 10(3)(a)(iii) of the said Act and that the expression "which is his own" includes co-ownership. On the strength of this decision the tenant had advanced a contention that inasmuch as the provisions under Section 10 of the Act also being in pari materia with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the said decision is applicable and also it being a binding decision, the landlord is bound to fail. The Counsel representing the landlord placed strong reliance on Lingala Kondala Rao v. Vootukuri Narayana Rao, 2003 (1) RCR 79, wherein the Apex Court while dealing with bona fide requirement and alternative accommodation where one shop was exclusively owned by the landlord and the other shops owned and possessed by him jointly with Joint Hindu Family, held that the landlord is entitled to evict the tenant from the shop exclusively owned by him on the ground of bona fide requirement. The Apex Court in the said decision at paras 10 and 11 held further as hereunder :
"We hold that joint Hindu family premises in which joint family business is being run and wherein the landlord too has a share and interest and juridical possession on account of being a member of the family would not disentitle the landlord from seeking recovery of possession from tenant of a non-residential building exclusively owned by him subject to his satisfying other requirements of Section 10(3)(a)(iii).
It was submitted by the learned Counsel for the appellant that the respondent's requirement cannot be said to be bona fide. It was submitted that a Full Bench of Andhra Pradesh High Court rendered its decision in Smt. Vidya Bai and Anr. v. Shankerlal and Anr., on 24-9-1987 wherein the Court took the view that availability of non-residential building belonging to joint family was a relevant factor for denying recovery of possession by landlord under Section 10(3)(a)(iii) of the Act and shortly thereafter on 24-6-1988 the late father of the respondent executed and registered the deed of settlement conferring title on the respondent. In the year 1991, the father of the respondent died and then the present proceedings were initiated by the landlord. This shows that exclusive ownership over the suit premises vesting in the landlord-respondent is a manipulation pointing out to mala fides. Suffice it to observe that it is too far fetched an inference to draw that the object behind execution of the registered deed of settlement was the eviction of the tenant-appellant more so, when there is no material available on record to base such an inference. This execution and registration of the deed of settlement is not disputed. In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal. It is pertinent to note that no member of the family adversely affected by the deed of settlement has chosen to lay any challenge to it. Incidentally, it may be noted that the Full Bench decision in Smt Vidya Bai's case was cited with approval before a two-Judge Bench of this Court in D. Devaji v. K. Sudarashana Rao, (1994) Supp. 1 SCC 729 = 1994 (1) RCR (Rent) 185 (SC). However, the correctness of the decision of this Court in D. Devaji's case was doubted by another two-Judge Bench in Boorgu Jagadeshwaraiah and sons v. Pushpa Trading Co., . In D. Devaji's case, the view taken by this Court was that the landlord should not be in possession of another non-residential building of which he is entitled to be in possession in the city, town or village concerned. The intendment of the Legislature was that the landlord who is in occupation of a non-residential building or of which he is entitled to under the Act or any other law should not be permitted to recover a possession of another non-residential building belonging to him by evicting the tenant therefrom. In Boorgu Jagadeshwaraiah's case the three-Judge Bench held that the view so taken in D. Devaji's case was an extremely narrow and literal construction placed on the provision which had the effect of scuttling the intention of the Legislature. The view of the law taken by the High Court of A.P. in Smt. Vidya Bai's case becomes, therefore, of doubtful authority."
14. It is no doubt true that in the present case, the parties are Muslims. But however, the principle is in relation to the joint ownership and the exclusive ownership of the landlord. In Smt. G. Kaushalya Devi v. Ghanshyamdas, , while dealing with bona fide requirement of landlord of non-residential premises it was held that the expression "possession which he is entitled" would not include possession otherwise than as a owner, such as a tenant. It is pertinent to note that both the decisions of the Apex Court referred Super Forgings and Steel (Sales) Private Limited v. Thyabally Rasulee (Dead) Through LRs. and Lingala Kondala Rao v. Vootukuri Narayana Rao, (supra) are of two Judge Benches of the Apex Court, the former arising under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the latter arising under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. No doubt, Article 141 of the Constitution of India specifies that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. It is no doubt true that there appears to be some conflict between the said two co-equal Bench decisions referred Super Forgings and Steel (Sales) Private Limited v. Thyabally Rasidjee (dead) through L.Rs and Lingala Kondala Rao v. Vootukuri Narayana Rao, (supra). In Kalabai Choubey v. Rajabahadur Yadav, AIR 2002 MP 8, a Division Bench of Madhya Pradesh High Court (Gwalior Bench) while dealing with the aspect of the binding nature of precedents and the conflict between decisions of co-equal Benches of Supreme Court had observed at para 47 as hereunder :
"It is, therefore, obvious that even where there is a direct conflict between the decisions of the co-equal Benches of Hon'ble the Supreme Court, the High Court has to follow the judgment, which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act. Both the views of the Supreme Court cannot be binding on the Courts below. In such a situation, a choice, however difficult it may be, has to be made."
Justice D.K. Seth, as a Member of the Full Bench while agreeing with the leading judgment delivered by Kabir, J., in New India Assurance Co., Ltd. v. Smt. Tara Sundari Phauzdar and Ors., , while dealing with the aspect of conflicting judgments of co-equal Benches rendered by the Apex Court held:
"Conflict between judgments of the Apex Court rendered by co-ordinate Benches creates certain uncomfortable situation for the High Courts. Article 141 makes the decision of the Apex Court binding on all Courts. But conflicting decisions, if bind the High Court, then the High Court would be at a fix as to which one is to be followed. At one point of time it was the latter decision that was to be followed, at one point of time it was the earlier decision, which was to be followed. But, these views have now been replaced. Now the High Court has to undertake an uncomfortable job of preferring one and not the other or others. The principle of preference is guided by the system of acceptability of the preferable judgment by the High Court on the basis of which of them lay down of the law elaborately and accurately. It is the decision, which appears to the High Court to have elaborately and accurately dealt with the law, is to be preferred.
The Full Bench of Allahabad High Court in Ganga Saran v. Civil Judge, Hapur, Gaziabad, (FB), held that if there is conflict between the judgments of the Supreme Court consisting of equal authorities, incidence of time is not a relevant factor. The High Court must follow the judgment, which appears to lay down law elaborately and accurately. The Full Bench in Indo Swiss Times Ltd., Dundahera v. Umrao, had taken the same view. A Division Bench of Allahabad High Court in New India Insurance Co. Ltd. v. Jagadish Prasad Pandey (1998) 1 TAC 600 : (1997) All.L.J. 2415) taken the same view following Indo Swiss Times (supra) by Punjab and Haryana High Court. The Punjab and Haryana High Court had taken the view that when judgments of superior Court are of co-equal Benches, namely, of matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by mere fortuitous circumstances of the time and date on which they were rendered. Both of the conflicting judgments cannot be binding on the Court below. Inevitably a choice, though a difficult one, has to be made. On principle, the High Court is to follow the judgment, which appears to lay down the law more elaborately and accurately, A Special Bench of this High Court in Bholaknath Karmakar v. Madanmohan Karmakar, , had also followed the same principle and held it is highly embarrassing for the High Court to declare one out of two or more decisions of the Supreme Court to be more reasonable implying thereby that the other or others is or are less reasonable. But if such a task falls upon the High Court because of irreconcilable contrary decisions of the Supreme Court emanating from Benches of co-ordinate jurisdiction, the task, however uncomfortable, has got to be performed."
It is no doubt true that the relevant provision in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 appears to be in pari materia and substantially the same. As already stated supra, the decision referred Lingala Kondala Rao v. Vootukuri Narayana Rao, (supra) is not only the one decided under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, but it also referred to a three Judge Bench decision of the Apex Court rendered in Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co., and ultimately a view was expressed that the view of the law taken by this Court in Smt. Vidya Bai and Anr. v. Shankerlal and Anr., , becomes a doubtful authority. In the light of the said legal position and the ratio laid down in the decision referred Lingala Kondaia Rao v. Vootukuri Narayana Rao, (supra), I am of the considered opinion that the approach of the Appellate Authority cannot be sustained since the relief on the ground of bona fide personal requirement was negatived on the ground of the landlord running the same business along with his brother. This cannot be a ground on which the relief can be negatived. It is needless to say that all the other incidental findings recorded by the Appellate Authority in this regard also cannot be sustained. Hence, the landlord is bound to succeed on the ground of bona fide personal requirement though he cannot succeed on the ground of acts of waste. Accordingly the impugned order of the Appellate Authority so far as it relates to the bona fide personal requirement is concerned, is hereby set aside and the order made in RC No. 1748/86 by the IV Additional Rent Controller, Hyderabad is hereby restored.
15. Accordingly, the civil revision petition is hereby allowed, with costs. A month's time is granted to the tenant to vacate the premises.