Andhra HC (Pre-Telangana)
Sathaiah vs Smt. Savithri Bai on 13 June, 1995
Equivalent citations: 1995(2)ALT693, 1995 A I H C 5162, (1995) 2 LS 138 (1995) 2 ANDH LT 693, (1995) 2 ANDH LT 693
ORDER S. Dasaradharama Reddy, J.
1. Parties are described as arrayed in C.R.P. No. 2569 of 1993.
2. The petitioner is a tenant of one portion of residential premises bearing No. 4-7-427 situate at Esamia Bazar, Hyderabad, on -a monthly rental of Rs. 60/-. The respondent-land lady filed petition under Section 10(2)(i), (ii) (b), (iii), (iv) (v) and 10(3)(i)(a) of the Act seeking eviction of the petitioner on the ground that she needs the same as she has large family consisting of her husband, her mother-in-law and four children aged 8,5,3 and 11/2 years. She says in the petition that her husband has purchased other two portions of the premises bearing Nos. 4-7-425 and 4-7-426 where two other tenants are staying, against whom eviction petitions have been filed by her husband and that she does not own or possess any other property in the City or elsewhere. It is also alleged that the petitioner has purchased a house bearing No. 2-3-54/B, Khadribagh, Amberpet, Hyderabad, and in view of his securing alternative accommodation, he is liable to be evicted. Other grounds of waste, nuisance and default in payment of water and electricity charges are also alleged. The tenant has filed counter denying purchase of house No. 2-3-54/Bat Amberpet and bona fide requirement of the premises by the land-lady. It has been stated that the petition has been filed only because he did not accept the demand of the landlady for enhanced rent. He also denied default in payment of electricity and water charges, acts, of waste and nuisance. The Rent Controller allowed the petition on the ground that the tenant has secured alternative accommodation and rejected the other grounds raised by the land-lady. R.A. No. 586 of 1989 filled by the tenant was dismissed and the tenant has preferred C.R.P. No. 2569 of 1993.
3. The only contention raised by Sri M.P. Ugle, learned Counsel for the petitioner, is that the petitioner has not secured alternative accommodation and the Courts below are wrong in holding to the contrary.
4. Section 10(2) of the Act reads as follows:
"A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied-.....
(v) that the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause, The Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application."
In the cross-examination, the tenant (R.W.I) admitted that there is house in the name of his wife in Khadribagh, Amberpet, and that there are four tenants in that house, besides one tenant in the Mulge. The contention of Sri Ugle is that though the tenant has got house with bigger accommodation than the house in dispute which consists of one room of size 8'9" x 9'6" and a varandah, it cannot be said that the accommodation is 'alternative' to the accommodation in question and relies on a decision of the Division Bench of this Court in Sistla Ramalakshmamma v. Lakshmi General Stores, 1974 (2) An.W.R. 2O9. On the other hand, Sri S. Balachand, learned Counsel for the respondent, contends that the expression 'alternative' is not synonymous with 'identical' and that if interpreted other wise, it leads to anamol us results and will not be in consonance with object and spirit of the Act which is meant to protect the interests of the tenants.
5. In Ramalakshmamma's case. 1974(2)An.W.R.2O9, 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 ex3pande 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 purposes both the premises, the one situated at Esamia 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.
6. In C.R.P. No. 3150 of 1993 filed by her, the landlady challenges the finding of the Courts below that she is not justified in seeking eviction on the ground of bona fide requirement. She could have taken this ground while supporting the order under revision. However, as this ground is relevant for the other C.R.P. No. 3149 of 1993 filed by her against another tenant, she has perhaps filed this civil revision petition by way of abundant caution taking this ground. As this question has to be decided in the other C.R.P. No. 3149 of 1993, it is necessary to examine the same in this revision petition also.
7. Admittedly, the landlady was residing in premises bearing No. 4-7-428 with her sister-in-law Durgabadi, who is the owner of the said premises, either as a tenant or as a licencee. On the date of filing of eviction petition, she had no house of her own. But subsequent to the filing of the petition, the premises bearing Nos. 4-7-425 and 4-7-426 purchased by her husband fell vacant. Counter was not amended by the tenant referring to the subsequent event, which, it is well settled now, can be taken into consideration for deciding the bona fide requirement of the house owner. Even if non-amending the counter is ignored as a technicality, there is no evidence on record to show that the house owner had sufficient accommodation and does not require the premises in question. In cross-examination, the husband of the respondent (P.W.I) said that they are continuing to reside at the premises bearing No. 4-7-428 and are not residing at portions in premises bearing Nos. 4-7-425 or 4-7-426. The petitioner, except to suggest that the respondent has seven rooms, which suggestion is denied by her husband, has not proved that there are seven rooms ready to be occupied. The Rent Controller gave three reasons in support of his conclusion that the house owner's requirement of the premises is not bona fide.
(1) That she was residing at premises No. 4-7-428 all these 15 or 20 years.
(2) She had obtained possession of the premises, which is subject matter of R.C.C. No. 436 of 1986, filed against Anjaiah, who is the respondent in C.R.P. No. 3149 of 1993.
(3) She had sufficient vacant accommodation in premises No.-4-7-425 and 4-7-426.
8. None of these reasons is tenable. Merely because the landlady resided for 15 years in the premises, either as tenant or licencee, which is of meagre accommodation, it does not follow that she can afford to continue to reside at any premises with meagre accommodation. This is a very strange reasoning which is not tenable. The appellate authority also has committed the same error in adopting this reasoning. The second reasoning given by the Rent Controller is that the landlady has obtained possession of the premises from Anjayya in R.C.C. No. 436 of 1986. It does not also stand a moment's scrutiny. R.C.C. No. 436 of 1986 filed against Anjaiah was dismissed by the very same Rent Controller on the same day when he allowed the R.C.C. No. 437 of 1986 and it is surprising that he says that the landlady obtained possession of the premises from Anjaiah. The appellate authority, however, has not adopted this reasoning. Similarly, the third reason given by the Rent Controller that the respondent has sufficient accommodation in premises Nos. 4-7-425 and 4-7-426 is without any basis. The evidence on record does not disclose the actual accommodation available at the said two premises. The appellate authority has also committed the same mistake. Thus I hold that both the Courts below erred in rejecting the plea of bona fide requirement made by the respondent.
9. The learned Counsel for the petitioner has urged that Section 10(3)(c) applies to the instant case and that as per proviso to the said Section, the petition is liable to be rejected as the hardship caused to the tenant by granting eviction will out-weigh the advantage to the landlady. Section 10(3)(c) reads as follows:
"A landlord who is occupying only a part of a building, whether residential or non-residential may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be, Provided that, in the case of an application under clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweight the advantage to the landlord."
This ground was not raised either in the Courts below or in the grounds-of revision. To invoke this provision, the tenant has to prove that the premises which is now in occupation of the landlady, and the premises from which the tenant is sought to be evicted, form part of the same building and also that hardship that is caused to him by ordering eviction outweighs the advantage to the landlord. As no evidence has been adduced in this behalf, the tenant is not entitled to raise this ground at this belated stage.
10. Accordingly, I hold that the landlady has established that she bona fide requires the premises in question for residential purpose and that both the Courts below erred in holding to the contrary.
11. Thus the landlady is entitled to obtain eviction order on both the grounds i.e., on the ground of tenant having secured alternative building and on the ground of bona fide requirement. Accordingly, C.R.P. No. 2569 of 1993 filed by tenant is dismissed and C.R.P. No. 3150 of 1993 filed by the landlady is allowed and the finding of both the Courts below regarding bona fide requirement is reversed. However, the tenant is granted three months time from today to vacate the premises, subject to the condition that he will continue to pay the rent in time. There shall be no order as to costs.
C.R.P. No. 3149 of 199312. The petitioner-landlady has filed eviction petition under Section 10(2)(i) (default), 10(2)(iii) (acts of waste), 10(2)(iv) (nuisance) and 10(3)(i)(a) (bona fide requirement) of the Act in respect of another portion of the premises, consisting of one room of small size (exact measurement not available from record, admittedly smaller than the room which is the subject matter of R.C.C. No. 437 of 1986) bearing No. 4-7-427 situated at Esamia Bazar, Hyderabad. She was unsuccessful in both the Courts below on all the grounds. The facts in this case are similar to the facts in C.R.P. No. 2569 of 1993, which I disposed of just now, except that there is no plea of tenant securing alternative accommodation. The Rent Controller dismissed the petition on all the grounds, holding inter alia that the petitioner's need for requirement of the house is not bona fide on the following grounds:
(1) that she was residing at premises No. 4-7-428 all these 15 or 20 years, (2) that she had obtained possession of the premises which is subject matter of R.C.C. No. 437 of 1986 (C.R.P. No. 3150 of 1993) filed against Sattaiah; and (3) that she had sufficient vacant accommodation in premises Nos. 4-7-425 and 4-7-426.
13. As already held by me in C.R.P. No. 3150 of 1993, the first and third reasons given by the Courts below are not tenable. The second reason given by the Rent Controller is that the petitioner obtained possession of the premises from Sattaiah. Though it is true that R.C. No. 437 of 1986 filed against Sattaiah was allowed by the very same Rent Controller on the same day on which this petition was dismissed, the Rent Controller has overlooked the fact that that order has not become final and two months time was granted to the tenant to vacate. Thus, this reasoning also is unsound. No doubt, the appellate Court has not adopted this reasoning.
14. Following the decision given by me in C.R.P. No. 3150 of 1993, I hold that the petitioner is entitled to obtain eviction order on the ground of bona fide requirement and the finding of the Courts below to the contrary is reversed.
15. The Civil Revision Petition is accordingly allowed. No costs. However, the tenant is granted three months time from today to vacate the premises subject to the condition that he will continue to pay the rent in time.