Andhra HC (Pre-Telangana)
Savani Transport Pvt. Ltd. (Now Savani ... vs Datti Venkateswara Rao on 12 February, 1997
Equivalent citations: 1997(2)ALT249, 1997 A I H C 2044, (1997) 2 ANDHLD 451, (1997) 2 RENCJ 99, (1997) 2 RENCR 257, (1997) 2 ANDH LT 249, (1997) 1 APLJ 373
ORDER S. Dasaradha Rama Reddi, J.
1. The petitioner is the tenant who lost in both the Courts below. The respondent-landlord filed the petition under the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short 'the Act') seeking eviction of the petitioner from the non-residential premises situated at Meraka Street, Rajahmundry town on the ground that he requires it for his business purposes and also that repairs have to be effected to the building which is old. The tenant filed counter stating that as the respondent owns several non-residential and residential houses in Rajahmundry town, the alleged requirement is not bona fide and that the eviction petition is filed with oblique motive of obtaining enhanced rent. The necessity of effecting repairs is denied. The maintainability of the petition is also challenged on the ground that the petitioner which is a limited company has to be sued represented by its Director or any Principal Officer but not the Manager. The learned Rent Controller held that the landlord bona fide requires the premises for carrying on Vani Paper Mart business in the schedule premises, that the landlord does not have any other non- residential premises, that the building requires extensible repairs and that the petition is maintainable even though the respondent is shown as represented by its Manager. It was confirmed on appeal and the tenant has preferred this Civil Revision Petition.
2. Mr. S. Balchand, learned Counsel for the petitioner has raised the following contentions:
(i) the burden of proving that the respondent does not own any non- residential premises is on him Under Sections 101 to 103 of the Evidence Act and as the same has not been discharged by him, he is not entitled to obtain eviction as per the decision of the Supreme Court in D. Dvaji v. K. Sudarshana Rao, 1994 (1) APLJ 5 (SC) and the Full Bench decision of this Court in Smt. Vidyavathi Bai v. Shanker Lal; 1987 (2) ALT 550.
(ii) that as both the parties have failed to produce oral and documentary evidence in support of their respective contentions and in view of 20 the conflicting evidence of P.W. 1 and R.W. 1 the matter may be remanded for determination of the question as to whether the respondent has any other non- residential premises of his own available for occupation.
(iii) that the requirement of personal-occupation is not bona fide;
(iv) that the eviction petition is not maintainable as it was filed as represented by the Manager of the Branch Office, who is not competent to represent the company;
(v) that in any event, as eviction will result in hardship to the tenant, partial eviction may be granted under Section 10(3)(a)(iii) of the Act.
Contention (i):
3. It is now well settled that for purpose of obtaining eviction from a non- residential premises, it must be established that the landlord must not be occupying any other non-residential premises which is his own or to the possession of which he is entitled. So, the question is whether the landlord owns any other non-residential premises in Rajahmundry town. In the eviction petition, the landlord has stated that he requires the suit premises for purpose of carrying on the business which he is now carrying on under the name and style of 'Vani Paper Mart' in K.V.R. Swamy Road, Rajahmundry in rented premises. It is also averred that he is not owner or entitled to the possession of any other non-residential premises within Rajahmundry Municipal limits.
4. In the evidence deposing as P.W. 1, the landlord stated that he is doing paper business in Gantalamma Gudi Street in a rented building belonging to one Pilladi Satyam paying a monthly rent of Rs. 1950/-. He also stated that he was not living with his father and was separated from him in the year 1986. The tenant deposing as R.W. 1 has stated that he does not know whether the premises in Gantalamma Temple Street in which the landlord is doing business is a rented premises or his own premises. He further stated that the landlord is having one building in Seethamma Sandu and another premises at Market Yard.
5. Mr. S. Balchand has contended that the burden of proving that the landlord has no other non-residential premises is on him and as he has not examined either his lessor or produced any rent receipt or any account books in proof of having paid the rents, in respect of the premises at Gantalamma Gudi Street and as the facts which are within his knowledge were not disclosed, adverse inference has to be drawn that the premises in which landlord was presently carrying on business belongs to him.
6. Mr. E.S. Ramachandra Murthy, on the other hand, contends that the 15 burden is on the tenant to show that the landlord has any premises of his own or any premises available for immediate occupation. He relied on the decision of the Madras High Court reported in Vincent v. T. Raman, . That was a case arising under Tamil Nadu Rent Control Act. There the eviction petition was filed under Section 10(3)(a)(i) of the Tamil Nadu Rent Control Act on the ground that the landlord requires the residential premises for his own occupation. The Rent Controller held in favour of the landlord, but on appeal the appellate authority held that the landlord failed to prove that he was living as a tenant paying rent to the aunt with whom he was staying and that in absence of proof of payment of rent to another landlord, the fact that he was residing with his aunt would not suffice to satisfy the requirement of Section 10(3)(a)(i) of the Tamil Nadu Act and accordingly dismissed the eviction petition. On revision, the Madras High Court held that the accent should not be on the payment or non-payment of rent for the premises which the landlord is occupying, but should be on the fact whether the building in which he is residing or occupying is his own or not, and that as it is established that the building belongs to the aunt of the landlord, the landlord is entitled to seek eviction even though the payment of rent was not proved. This clearly supports the contention of Mr. E.S. Ramachandra Murthy. But Mr. S. Balachand, distinguishing this decision contended that there the special feature is that the landlord was admittedly staying with his aunt and that fact must have weighed with the Court in arriving at the conclusion. I am afraid I cannot agree with Mr. Balchand's contention, The Madras High Court held that the test is whether the building in which the landlord is residing or occupying is his own or not and accent is not on the payment of rent. The respondent- landlord has stated in his petition that he is carrying on the business of Vani Paper Mart in a rented premises in K.V.R. Swamy Road, Rajahmundry and that he is not owner of that premises or any other non-residential premises in Rajahmundry town. Even assuming that payment of rent is not proved, it does not follow that he is the owner of the premises. He may be occupying the premises as licencee or mortgagee. As the petitioner has alleged that the respondent is the owner of the premises, at Gantalamma Gudi Street, burden is on him to prove it. The landlord cannot be expected to prove the negative viz., that he is not the owner of the building in which he is carrying on business. Though in the eviction petition, the landlord says that he is carrying on business, at K.V.R. Swamy Road, in the evidence, he stated that he is carrying on business at Gantalamma Gudi Street. But this discrepancy is not material since both the parties proceeded on the assumption that the landlord is doing business in Gantalamma Gudi Street only. The reference to another rental premises owned by Killadi Satyavathi is also not relevant as the reasoning applicable to the premises in Gantalamma Gudi Street applies to this also. Further it is not elicited in the cross-examination regarding the details of this premises. Again, except stating that the landlord is having one building in Seethamma Sandu and another premises at Market yard, no details of these are given as to whether they are residential premises or non-residential premises. Mr. Balchand submits that in the context of the evidence, it must be understood as referring to non-residential premises. Even assuming that the reference is to non-residential building, no details are given by the tenant to show that the respondent is the owner of these buildings. Mr. Balchand also submitted that the respondent having admitted that he has separated from his father in the year 1986 ought to have filed some document to show the properties allotted to him in partition which will have bearing on the question whether the landlord is having any non-residential premises of his own. But as held already, it is for the tenant to prove that the landlord has any other non-residential premises of his own. In view of the above discussion, I hold that the petitioner has not proved that the respondent-landlord has any other non-residential premises of his own or to which he is entitled to immediate possession. Thus, the first contention is rejected.
Contention (ii):
7. Regarding the request of Mr. Balchand for remand, I do not see any 35 necessity for remand since I have already held that the burden is on the tenant to prove that the landlord has any other non-residential premises of his own. Merely because the evidence adduced is not sufficient, the tenant cannot seek remand for filing better evidence. Accordingly this contention is rejected.
Contention No. (iii): Whether the requirement is Bona fide:
8. This plea has two limbs. The first limb is that the vendor of the respondent has filed earlier R.C. 88/78 in respect of the same premises against the petitioner which ended in compromise and the respondent has filed this petition to extract higher rent. There is no merit in this contention. Merely because the vendor of the landlord had earlier permitted the petitioner to continue on certain terms, it does not prevent the present owner from claiming eviction on the ground that he needs the premises for his own occupation. The second limb is that the eviction petition was filed both under Section 10(3)(a)(iii) and Section 12(l)(a) of the Act and the real object of the landlord is to make repairs and let out to others at higher rent.
9. Though in the eviction petition the provision of law is shown as both Section 10(3)(a)(iii) and Section 12(l)(a) if the contents in para-6 are closely examined, it is obvious that the ground of repairs is not an independent ground raised but is only incidentally raised to show that the building is more than 50 years old and that the landlord wants to occupy the premises after carrying out repairs.
10. Para 6 of the petition reads as follows:
"The petitioner truly and humbly states that the petition schedule building in the occupation of the respondent is in dilapidated condition with dents on the floors and cracks on the walls of the schedule premises. Further the roof of the building became rickety and leaky, the same having been constructed more than 50 years ago, requires extensive repairs to be attended and those repairs cannot be carried without the schedule premises being vacated by respondent. Therefore, the petitioner submits that he bona fide requires the schedule premises for his personal use for carrying repairs".
11. The Commissioner appointed by the learned Rent Controller has stated in his report that the building is atleast 60 years old and needs repairs.
12. As the claim for eviction on the ground of repairs is not an independent one but is connected with the bona fide requirement, mere reference to Section 12(l)(a) in the preamble of the petition does not make it an independent ground and hence the question of the landlord giving an undertaking under Section 12(2) of the Act that he will re-deliver the premises to the tenant after repairs does not arise nor can it be said that the requirement for personal occupation is not bona fide.
Contention No. (iv):
13. Mr. Balchand next contended that the eviction petition is not maintainable as it was filed against the company as being represented by its Branch Manager, Rajahmundry. It is admitted by both sides that though there is no specific provision under the Act, by virtue of judicial decisions it is well settled that the provisions of Civil Procedure Code would apply to the proceedings under the Act as far as practicable, provided there are no provisions to the contrary in that behalf in the Act or the Rules.
14. Order 29 Rule 1 C.P.C. says that in suits by or against a Corporation, any pleading may be signed and verified on behalf of the Corporation by the Secretary, or any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case. Under Order-6 Rule 14, every pleading shall be signed by the party and where for some good cause he is unable to sign it may be signed by any person duly authorised by him to sue and defend on his behalf. Order 29 Rule 1 has been interpreted by Kerala High Court in the decision reported in M/s. Kalpaka Shrimp Exports v. Kerala Financial Corporation, . that it is only permissive and not mandatory and that any person authorised by the Board of Directors can file or defend the suit on behalf of the company. The next question is whether such authorisation must be in writing. In All India Reporter Ltd. v. Ramchandra, the Bombay High Court held that such authorisation need not be in writing but may be oral. In that case the plaint signed by a person orally authorised by the Managing Director of the Company was held to be valid.
15. Article 122(h) of the Articles of Association (Ex. B. 1) enables the Board of Directors to institute, conduct, defend, compound or abandon any legal proceedings by or against the company or its officer. Article 122(1) enables the Board of Directors to provide for management of affairs of the company in such manner as they may think fit and in particular to appoint any person to be the attorneys or agents of the company with such powers and upon such terms as may be thought fit. No doubt, no written resolution of the Board of Directors has been filed authorising the Manager of the Rajahmundry Branch to resist the eviction petition and to conduct the litigation.
16. That the Rajahmundry Branch Manager is authorised to conduct the litigation on behalf of the company is clear from the fact that the Branch Manager filed counter, gave evidence, filed appeal as also the revision in this Court, including Vakalat in all these proceedings. It is not the case of the tenant that the entire proceedings have been conducted by the Manager of Rajahmundry Branch without the authority of the Head Office. In fact the Head Office knew about these proceedings, as is clear from Ex. A-2, which is the reply given by the advocate at Bombay, where the Head Office of the company is situated, to the legal notice Ex. A-l issued by the respondent. Further no prejudice is caused to the respondent-company, by not showing it as represented by Managing Director or other Principal Officer. In view of this, I hold that the petition is maintainable.
Contention No. (v):
17. Mr. Balchand finally argued that as the tenant has been carrying on business in Rajahmundry town for the past 25 years, if it is evicted now, it will be put to hardship and that as the respondent does not require the entire ground floor which contains six rooms, partial eviction, may be ordered. Mr. E.S. Ramachandra Murthy opposes this contention saying that there is no pleading to that effect, no issue, no evidence much less any finding. I agree with him. Apart from it, merely because eviction results in hardship, no relief can be granted to the tenant under the Act. It is only in the special circumstances contemplated Under Section 10(3)(c) that comparative hardship to the tenant and advantage to the landlord has to be examined. Obviously Section 10(2)(c) does not apply. If this plea is to be accepted it will be open to every tenant to make such a plea and defeat the right of the landlord given under the Act. In the circumstances this contention has to be rejected.
18. In the result, the C.R.P. is dismissed. No costs. However, the petitioner is given FOUR MONTHS time to vacate the premises, subject to payment of rents in time.