Andhra HC (Pre-Telangana)
M. Ravinder Raju vs S. Bansilal on 17 July, 2001
Equivalent citations: 2001(5)ALT374, 2001 A I H C 4557, (2001) 5 ANDH LT 374
JUDGMENT Ghulam Mohammed, J.
1. This revision petition has been filed by the landlord under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 for short "the Rent Control Act", aggrieved by the order dated 3.4.1995 passed in R.A.No.225 of 1994 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad, reversing the order of eviction passed in R.C.No.248 of 1987 dated 23.3.1994 by the IV Additional Rent Controller, Hyderabad.
2. It is stated that the suit mulgi bearing No.2-4-948, Nimboli Adda, Hyderabad was let out to the respondent for the purpose of carrying on business on a monthly rent of Rs.80/-. The revision petitioner filed the R.C. No.248 of 1987 before the Rent Controller, Hyderabad, under sections 10(2)(v), and 3(iii) of the Rent Control Act seeking eviction of the respondent. It is stated that the respondent closed the mulgi for the last four years and he is not carrying on the business, that the respondent committed willful default in payment of rent, that the suit mulgi is next to his house, and has additional facility of bath room and latrine which is not available in other mulgies, therefore he requires the mulgi for personal requirement and that the respondent is doing business at another place under the name and style of Sheshi Electronics Radio Sales and Services in Malgi No.1-8-550, Chikkadapally, Hyderabad and hence, the respondent is liable to be evicted from the suit premises on the ground of securing alternative accommodation. It is stated that the suit mulgi was constructed in the year 1969 and therefore the Rent Controller has the jurisdiction to try the same.
3. The respondent denied the averments made by the petitioner. It is however, stated that the respondent is the tenant of the Mulgi since 1972 onwards on payment of monthly rent of Rs.50/- at the initial stage, which was subsequently enhanced to Rs.70/- and later in the year 1981 for a sum of Rs.80/- per month. It is further stated by the respondent with regard to plea of securing alternative accommodation, that he in no manner dealing with the business under the name and style of "Shashi Electronics Sales and Services" in mulgi No.1-8-550, Chikkadapally, Hyderabad, and that the petitioner absolutely failed to link the business of the respondent at the above two places, as such for any reason or cause the plot of alleged securing alternative accommodation do not withstand in law.
4. On the basis of the pleadings made by the parties, the learned Rent Controller framed the following issues for its consideration.
" 1. Whether the respondent committed default in payment of rent, if so such default is willful default ?
2. Whether the respondent ceased to occupy the suit premises ?
3. Whether the petitioner bonafidely requires the suit premises for his personal occupation to set up legal practice ?
4. Whether the respondent has secured any alternative accommodation to run the business ?
5. To what relief ? "
The petitioner examined himself as PW.1 and marked Exs.P.1 to P.11. The respondent herein examined himself as R.W.1 and marked Exs.B.1 to B.17.
5. The learned Rent Controller on consideration of the evidence allowed the petition in so far as the ground of the respondent securing alternative accommodation and dismissed the eviction petition on all other grounds. Thus, the Rent Controller ordered eviction on the ground of the respondent securing the alternative accommodation.
6. Being aggrieved by the order of eviction, preferred R.A.No.225 of 1994 was filed by the tenant-respondent. The Rent Appellate Court by the order under revision set aside the order of eviction passed by the Rent Controller. Hence, the present Civil Revision Petition has been filed.
7. Learned counsel for the petitioner Sri N. Ashok Kumar, vehemently contended that the entire approach of the Rent Appellate Court is based on surmises and conjectures and contrary to the evidence. The Rent Appellate Court without adverting to the pleadings and evidence, relying upon the Division Bench of this Court reported in S. RAMALAKSHMAMMA v. M/s. LAKSHMI GENERAL STORES ( (1) 1974(2)APLJ 73) erroneously set aside the findings recorded by the Rent Controller. The learned counsel for the revision petitioner also contended that the evidence on record itself would show that the respondent has secured the alternative accommodation and that the Rent Appellate Court is wrong in holding to the contrary. Learned counsel for the revision petitioner has drawn my attention to the judgments of this Court reported in SATHAIAH v. SMT. SAVITHRI BAI ( (2) ) CHAMPALAL BHANDARI v. MAYADEVI ( (3) 1997 (6) ALD 184 ). Learned counsel for the respondent argued that the order under revision does not call for any interference and needs to be sustained.
8. Before adverting further, it is expedient to refer to the observations of the Division Bench of this Court in RAMALAKSHMAMMA's case (1 supra ) as regards the connotation of the terms 'alternative accommodation' in contra distinction to 'additional accommodation'. Their Lordships after referring to the phrase 'secured' observed :
" It follows therefore that whether the tenant has constructed his own building or h as taken a building on rent in either case, it will mean that he has secured a building within the meaning of the said provision provided of course that such building satisfies the essential requirement of being an 'alternative building' to the one from which he is sought to be evicted".
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At paragraph 24 of its judgment it was held as under :
" What follows from what is considered above is that there is implicit in this conception of alternative existence of two buildings similarly circumstanced or so situated as to render a choice between the two fairly probable. The 'alternative building' within the meaning of Sec.10(2)(v) of the Act would mean a building alternative to the one from which the eviction of the tenant is sought under the Act. while considering the question as to whether the building secured by the tenant can be said to be alternative to the building from which he is sought to be evicted, the court could probably take into account not only the physical character of the two buildings but also environmental matters, either as a consideration affecting its suitability to the needs of the tenant."
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" The difference between the additional requirement of the tenant for his expanded business on the one hand and the alternative accommodation to satisfy the present needs of the business of the tenant which he has been carrying on in the suit premises is too patent and obvious."
In SATHAIAH v. Smt. SAVITHRI BAI ( (2) ) another learned single Judge of this Court considering the decision reported in S. RAMLAKSHMAMMA's case ( 1 supra ) has held as follows :
" In Ramalakshmamma's case, the tenant who was doing cloth business in the rented premises constructed a building of his own with two floors and gradually shifted his cloth business from the rented building to the new building. The contention of the landlord was that the suit building was no more necessary for the tenant as he secured more decent alternative accommodation. The tenant's plea was that the new premises was for the purpose of expansion of the business and not for shifting and that the turnover in the old building was Rs.2 lakhs whereas in the new building it was Rs.40 lakhs. Upholding the plea of the tenant, the Division Bench held that the new building constructed by the tenant was meant only for additional accommodation of the expanded business of the tenant and not for alternative accommodation. The Bench observed as follows :
" The difference between the additional requirement of the tenant for his expanded business on the one hand and the alternative accommodation to satisfy the present needs of the business of the tenant which has been carrying on in the suit premises is too patent and obvious. If that difference is kept in view, then there will be no difficulty in reaching the conclusion that the new building constructed by the tenant does not amount to his securing an "alternative building" within the meaning of Section 10(2)(v) of the Act which could provide a ground of eviction to the landlord."
This decision is clearly distinguishable. In the present case, it is not the plea of the tenant and it could not also have been his plea, that he needs for his residential purpose both the premises, the one situated at Esmia Bazar which is subject matter of this proceeding and the other at Amberpet. He can obviously choose one of the two buildings to reside. Thus the question of additional accommodation does not arise here and as the house at Amberpet is admittedly bigger in accommodation than the premises which is subject matter of the eviction petition, it has to be held that the tenant is liable for eviction on the ground of having secured alternative building. Thus I hold that the Courts below are right in holding that the petitioner has secured alternative building and is hence liable to be evicted. "
In CHAMPALA BHANDARI's case ( 3 supra ), the accommodation much larger than the tenanted premises was taken over by the tenant and he started doing the same business therein. The tenant adduced no evidence to show that it was only an additional accommodation, rental deed of the said premises also was not produced, and this Court considering the facts and circumstances of that case sustained the order of eviction passed by the Court below.
9. In Ramalakshmamma's case ( 1 supra), the learned Judges agreed with the appellate authority that the new building constructed by the tenant is only additional accommodation for the expanded business of the tenant and it was not alternative accommodation. Therefore, judgment referred to by the Rent Appellate Court in S.RAMALAKSHMAMMA's ( 1 supra ) has no application to the facts and circumstances of the case.
10. In ADAPA SANTHARAM AND ANOTHER v. SAIT NATHAMAL MANIK CHAND ( (4) 1995(3) ALD 795 ) this Court held as under :
" It is not in dispute that new premises was acquired only in the year 1982 and eviction was filed in the month of August, 1983. The tenant has not pleaded nor placed any evidence on record to show that the landlord had the knowledge of the said acquisition of the new properties by the tenant. The tenant has not intimated such acquisition to the landlord in any one mode known to the law. Having regard to these circumstances only, the moment the landlord came to know such acquisition, he has sought the eviction of the premises in question under Section 10(2)(v) of the Act by amending his petition. It is not the case of the tenant that the said building was not suitable. In fact, in the newly acquired building, the family members of the tenant are doing the same jewellery business. More over, the landlord had no knowledge of such acquisition of alternative building by the tenants and hence, it cannot be held that there was any negligence on the part of the landlord in seeking eviction on the ground of acquiring alternative accommodation. In view of the law declared by this Court, it is clear that the landlord is entitled for eviction of the suit premises on the ground that the tenant secured alternative building. ...
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Moreover, it has come in the evidence of R.W.2 that the first floor of newly acquired building in which business under the name and style of Sri Lakshmi Fashion Jeweler is located is vacant. But, RW 2 further stated that the said first floor was being used for storing boxes, etc. as godown. However, from his own evidence, it is further revealed that the first floor of the said premises was not let out to Sri Lakshmi Fashion Jeweler. On the basis of this evidence on record, the lower Appellate Court concluded that even the first floor of the newly acquired building was available for the tenants to occupy. Having regard to these materials on record, the lower appellate Court allowed the Cross-Objections filed by the landlord and set aside the finding recorded in that behalf by the Rent Controller and ordered eviction in favour of the landlord under Section 10(2) of the Act also."
The learned Rent Appellate Court held that admittedly the respondent executed the rental deed Ex.P.1 dated 15-10-1981 in favour of the petitioner in respect of the suit premises on a monthly rent of Rs.70/- for a period of 11 months only and after the expiry of a period of 11 months mentioned in Ex.P.1 the tenancy is continued from month to month. It is further stated that when there is a written lease executed between the parties, the parties are bound by the terms of the lease as well as the date of commencement of the lease and it is not open either for the petitioner or for the respondent to plead or depose contrary to the terms of the recitals incorporated in the written lease.
11. The Rent Appellate Court further came to the conclusion that any pleading or evidence contrary to the terms of the rental deed Ex.P.1 dated 10-8-1981 has to be ignored for all purposes and held that the respondent obtained the lese of the premises bearing No.1-8-550, Chikkadapally, Hyderabad some time in January, 1976 for starting his business and that when admittedly, securing the tenancy of the premises at Chikkadapally was prior or anterior to the date of obtaining the lease of the present mulgi, the petitioner has no cause of action to seek eviction. It is further held that when the petitioner has not specifically pleaded and relied upon the oral tenancy that existed right from 1971 in respect of the suit premises between the father of the petitioner and the respondent, the petitioner cannot be permitted to lead evidence in this regard.
12. Based on that grounds only, the learned Rent Appellate Court set aside the order of eviction passed by the learned Rent Controller.
13. In the above factual background it is necessary to advert to the pleadings and evidence adduced by the parties.
14. The petitioner in his evidence deposed that the suit mulgi was originally let out by his father in the year 1971 to the respondent for the purpose of business only. The respondent executed rental deed on 15.10.1981 agreeing to pay the rent in advance on or before 10th of each month. R.W.1 in his evidence deposed that about 20 to 30 years back he has obtained the suit mulgi from the father of the petitioner and the tenancy is oral. After the death of the petitioner's father the rent was enhanced to Rs.70/- in the year 1980. The rent agreement is dated 15.10.1981, which was marked as Ex.P.1. Obviously, R.W.1 himself deposed that after the death of his father the petitioner enhanced the rent in the year 1980. The respondent deposed that " I have not secured any alternation accommodation at Chikkadapally". He further deposed in cross-examination as follows:
" The petitioner is having his office in mulgi No.2-4-956. This mulgi is bigger than suit mulgi. There is a mulgi on the last of the suit malgi after that there is a corner turning towards north and then after mulgi No.2-4-956 is the. I am not willing to shift in to mulgi NO.2-4-956 if it is given to me for the same rent. If I shifted to that mulgi it will not be visible to the customers."
It is also stated by the respondent that he is not doing the business at another place under the name and style of Shashi Electronics Radio Sales and Services, Chikkadapally, Hyderabad. It is also stated in cross examination that now and then he used to go to Shashi Electronics Radio Sales and Services at Chikkadapally to clarify his doubts regarding the work once or twice in a week and he cannot say who is the owner of that shop. The respondent also deposed as follows:
" It is not true to suggest that I filed a suit against the owner of the premises where Seshi Electronics Radio Sales and Services is located for injunction claiming that I am the tenant of the same. It is not correct to say tat I am tenant of Mulgi No.1-8-550 i.e. Shashi Electronics Radio Sales and Services since last nine years."
The petitioner filed Ex.P.5 certified copy of the plaint filed by the respondent herein in O.S.No.99 of 1985 on the file of the VI Assistant Judge. The respondent herein filed the above suit O.S.No.99 of 1985 claiming to be the tenant of of Mulgi No.1-8-550, Shashi Electronics Radio Sales and Services, Chikkadapally, Hyderabad, for declaration and permanent injunction. Ex.A.6 is the certified copy of the petition filed by the respondent herein as the petitioner in O.S.No.99 of 1985 seeking temporary injunction, Ex.P.7 is the Vakalat filed by the advocate on behalf of the plaintiff in the above suit, Ex.P.9 is the certified copy of the implead petition filed by the respondent herein. Obviously, the plaint reads as under :
" The plaintiff is operating trade of radio repairing work-shop in the name and style of "Shashi Electronics" situated at mulgi No.1-8-550, Chikkadadpally, Hyderabad under licence NO.2401 dated 5.7.1983 issued by the 1st defendant as the licensing authority. The owners of the plaintiff are Bhoj Krishna Narayana Desh Seva Trust Board with its head office situated at Gagan Mahal.
In I.A.No.13 of 1985 in O.S.No.99 of 1985 the respondent, being petitioner therein, stated that he is operating the trade of radio repairing in the name and style of Seshi Electronics situated Mulgi bearing No.1-8-550, Chikkadapally, Hyderabad.
15. A perusal of Exs.P.5, P.6 and P.7 would itself show that the respondent herein filed the suit for perpetual injunction and that the respondent herein in the plaint, under sworn statement, stated that he took licence for the business of Shashi Electronics Radio Sales and Services, Chikkadapally, Hyderabad under licence No.2401 dated 5.7.1983. The suit O.S.No. 99 of 1985 was filed in the year 1985. The respondent himself stated in the suit that he obtained the licence on 5.7.1983. That apart the respondent in categorical terms admitted in counter that he has obtained the present mulgi on lease in the year 1972. Therefore, observations of the learned Rent Appellate Court that the respondent tenant secured the mulgi at Chikkadapally prior to the execution of Ex.P.1 lease deed dated 15.10.1981 is not borne out from the proper appreciation of entire evidence available on record. There is absolutely no explanation as to why there was a blanket denial by the respondent at the earliest opportunity. It is also not at all the case of the respondent that he secured the premises at Chikkadapally, Hyderabad as additional accommodation for development of his business and there is absolutely no evidence to that effect. It therefore gives rise to an inference that the respondent was out to suppress the truth and he had not come to the Court with clean hands. This conduct on the part of the respondent casts any amount of doubt on the veracity of his version. The fact whether the new premises secured is additional or alternative accommodation would normally be within the exclusive knowledge of the tenant therefore he should divulge all the relevant facts which have real bearing on that aspect.
16. In the above facts and circumstances of the case, the Rent Controller rightly ordered eviction on the ground of tenant securing alternative accommodation. The entire approach of the Rent Appellate Court is not based on proper appreciation of the entire evidence available on record. The learned appellate Judge merely proceeded on the assumptions, leaving the material evidence available on record.
17. For the reasons aforementioned, considering the facts and circumstances of the case, the order passed by the Rent Appellate Court is set aside and the order passed by the Rent Controller is restored. Accordingly, the Civil Revision Petition is allowed. However, considering the facts situation, the respondent-tenant is granted six months time to vacate the premises from today. He shall file an undertaking to that effect. No costs.