Andhra HC (Pre-Telangana)
Syed Ahmed Ali (Died Per Lrs) vs Shaik Mohd. Bin Abdul Bin Ali Ramazan on 2 June, 2014
Author: M.Seetharama Murti
Bench: M.Seetharama Murti
THE HONOURABLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.5019 of 2011
02-06-2014
Syed Ahmed Ali (died per LRs) . Petitioner
Shaik Mohd. Bin Abdul Bin Ali Ramazan. Respondent
Counsel for the Petitioner : Sri Fazal Yousufuddin
Counsel for the Respondent : Sri R.A.Achutanand
<Gist :
>Head Note:
? Cases referred:
1. (2003) 1 SCC 672
2. AIR 2003 SC 532
3. AIR 2000 SC 656
4. AIR 1988 Andhra Pradesh 184 Full Bench
5. 1994 Supplement (1) SCC 729
6. (2009) 9 SCC 752
7. 2007 (1) ALD 323
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.5019 of 2011
ORDER:
This is a Civil Revision Petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, (for short the Act) by the unsuccessful respondent/tenant, assailing the orders dated 30.09.2011 of the learned Additional Chief Judge, City Small Causes Court, Hyderabad, made in R.A.No.25 of 2007, whereby the learned Chief Judge while dismissing the said appeal had confirmed the order dated 30.12.2006 of the learned IV Additional Rent Controller, Hyderabad, made in R.C. No.422 of 2000, filed under Section 10 (3)(a)(iii)(b) of the Act by the petitioner/landlord for eviction of the respondent/tenant from the premises bearing No.20-4-1119 and 20-4-1120 situated at Ladbazar, Hyderabad, more fully described in the schedule annexed to the petition.
2. (a) The case of the landlord/respondent herein, in brief, is as follows: The petitioner/landlord (for short, the landlord) is the owner of the schedule premises. Originally the schedule property belonged to one Masood Ali. He had sold the schedule property to the landlord. By issuing a notice, the tenancy of the respondent/tenant (for short, the tenant) was attorned to the landlord. After purchase of the property by the landlord, the tenant had filed R.C. No.667/1999 for permission to deposit rents and the said rent control case was allowed and permission was accorded to the tenant to deposit the rents regularly to the credit of the Bank account of the landlord. The landlord required for his personal occupation the ground floor mulgi and also the first floor wherein one Mohd. Yousufuddin was a tenant. The landlord so required the said premises for his personal occupation to start imitation jewellery business in the ground floor and ladies garments business in the first floor. Except the schedule premises, the petitioner does not own any other non-residential premises in the twin cities. The landlord had also filed an eviction petition against another tenant, Mohd. Yousufuddin, who is in occupation of the first floor. Hence, the petition for eviction is filed against the tenant for eviction from the ground floor mulgi.
2. (b) The averments in the counter of the tenant, in brief, are as follows:- The tenant is regularly depositing rents to the credit of the Bank account of the petitioner/landlord. The landlord has got no experience in the alleged businesses. The paternal uncle of the landlord had purchased the schedule premises in the name of the landlord. His said uncle had got number of properties. The landlords paternal uncle, the father of the landlord and the landlord are doing business in the premises bearing municipal door Nos.21-3-356 and 357 at Lad Bazaar and they are having number of shops in their names. The landlord is the owner and possessor of mulgi Nos.21-2-344 and 345 at Lad bazaar. The landlord had also entered into an agreement of sale with one Mohd. Ilyas Khan to purchase the property bearing Nos.21-2-344 and 345. The tenant and his family members are depending upon the business being carried on in the schedule premises. If the tenant/respondent is evicted, he and his family would suffer great hardship. Hence, the petition may be dismissed.
2. (c) During the course of enquiry before the learned Rent Controller, the landlord was examined as P.W.1 and exhibits A.1 to A.8 were marked. The tenant and his witnesses were examined as R.Ws.1 to 5 and exhibits B.1 to B.12 were marked. On merits, the learned Rent Controller had allowed the petition of the landlord and directed the tenant to vacate and handover vacant possession of the schedule property to the landlord within two months from the date of the order. As already noted, the Rent Appeal preferred by the tenant was dismissed by the learned Additional Chief Judge, Hyderabad, confirming the orders of the learned Rent Controller. Hence, the tenant had preferred this instant revision.
2. (d) Before proceeding further, what is to be noted is that the landlord herein had also preferred a Civil Revision Petition No.1124/2012 assailing the order dated 30.09.2011 of the learned Additional Chief Judge, City Small Causes Court made in I.A.No.58/2011 in R.A. No.25/2007 whereby the learned Additional Chief Judge had refused permission to the landlord to introduce additional documentary evidence in the Rent Appeal. However, the said Civil Revision Petition was dismissed as withdrawn on 05.03.2014. It is also appropriate to mention that the landlord had also filed a Civil Revision Petition in C.R.P. No.3077/2012 assailing the orders dated 30.09.2011 of the learned Additional Chief Judge, City Small Causes Court made in I.A.No.397/2010 in R.A.No.25/2007 whereby the learned Additional Chief Judge had refused to grant a request of the landlord to seek amendment of the eviction petition to include a pleading or ground to the effect that the tenant had secured an alternative accommodation. The above said Civil Revision Petition was also dismissed on 07.03.2014 as withdrawn.
3. I have heard the submissions of the learned counsel for both the sides. I have carefully perused the material record.
4. Now the points for determination are (1) Whether the landlord had made out valid and sufficient grounds and had satisfied the factual and legal requirements for ordering eviction of the tenant on his plea that the schedule property is required for the personal occupation of the landlord?
(2) Whether the tenant had made out valid and sufficient grounds to set aside the impugned order?
5. POINTS:
5. (a) The jural relationship between the petitioner/landlord and the respondent/tenant is admitted. In this eviction proceedings initiated by the landlord for eviction of the tenant on the ground that the property is required for the bona fide personal occupation of the landlord, the initial onus of proof as well as the legal burden are on the landlord. The landlord is seeking eviction not only of the tenant in this instant case who is in the occupation of a mulgi in the ground floor, but also seeking simultaneously the eviction of the another tenant in the first floor of the same premises by initiating separate proceedings for eviction against the said tenant. The requirement as stated by the landlord is that the ground floor mulgi is required for starting imitation jewellery business and that the first floor which is in the occupation of another tenant is required for starting business in ladies garments.
Be that as it may, we are now concerned only with the mulgi in the ground floor which is in the occupation of the tenant herein and, therefore, the enquiry in this revision shall be limited to the present subject matter. In the petition for eviction, the landlord had stated that except this mulgi in the ground floor and the portion in the occupation of the other tenant in the first floor, he does not own any other non-residential property in twin cities. By the date the landlord had purchased the present schedule property, the present tenant is already in occupation of the schedule property as a tenant. In other words, the tenant herein is a pre-existing tenant in the property. What is to be further noted is that the eviction petition is filed under Section 10(3)(a)(iii)(b) of the Act. The said provision, which is relevant, reads as under:
10. Eviction of tenants : (3) (a) 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 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;
5. (b) As already noted, the landlord is seeking eviction of the tenant from the schedule premises which is a non-residential premises on the ground that he does not own and is not occupying a non-residential building in the city and that he bona fide proposes to commence a business in imitation jewellery, and that therefore, the premises is required for his bona fide personal occupation. On the other hand, the specific defence of the tenant is as under: The petitioner has got no experience in the business which he alleges to commence. The paternal uncle of the landlord had purchased the schedule premises in the name of the landlord. His said uncle has got number of properties. The landlords paternal uncle, the father of the landlord and the landlord are doing business in the premises bearing municipal door nos.21-3-356 and 357 at Lad Bazaar and they are having number of shops in their names. The landlord is the owner and possessor of mulgi Nos.21-2-344 and 345 at Lad bazaar. The landlord had also entered into an agreement of sale with one Mohd. Ilyas Khan to purchase the property bearing Nos.21-2-344 and
345. The tenant and his family members are depending upon the business being carried on in the schedule premises. If the tenant is evicted, they would suffer great hardship. The landlord had testified in the matter in line with his pleadings. The tenant had also adduced evidence in support of his defence. The case of the landlord and the defence of the tenant, which is multi-fold, deserve examination in juxtaposition.
5. (c) The first contention of the tenant is that the landlord has no experience in the business, which he proposes to commence in the schedule property, and that therefore, the requirement is not bona fide. There is no requirement in law that the landlord must have experience in the business, which he proposes bona fide to commence in the schedule premises. Even according to the defence of the tenant, the landlord, his father and his uncle are doing business in shops bearing Nos.21-3-356 and 357 at Lad bazaar, and therefore, the very defence of the tenant would go to show that the landlord is having experience in business. Therefore, the first contention of the tenant is devoid of merit and, therefore, cannot be countenanced.
5. (d) The next contention of the tenant is that the landlord, his father and his uncle are doing business in shops bearing Nos.21-3-356 and 357 at Lad bazaar, and that as the landlord is already doing business in the same locality of the petition schedule property, there is no requirement of the petition schedule property for the proposed business. Admittedly, that business is not an exclusive business of the landlord even assuming for a moment that the landlord is carrying on such business jointly with others is true. In the decision in Lingala Kondalarao Vs. Vootukuri Narayana Rao , the facts would show that in a suit for eviction of tenant from non- residential premises based on the ground available under sub-clause
(iii) of clause (a) of sub-section (3) of Section 10 of the Act, the unsuccessful tenant had approached the Honble Supreme Court by a Special Leave Petition, and it was contended before the Honble Supreme Court that the landlord is entitled to a share in joint Hindu family property in the shops which are in occupation of a joint Hindu family wherein joint family business is being carried on, and that therefore, the landlord is not entitled to seek eviction of the tenant from an accommodation exclusively owned by him. Having referred to the above said provision and having considered the legal position and the rulings on the aspect, the Honble Supreme Court had held as follows:
To disentitle the landlord from claiming eviction under Section 10(3)(a)(iii) of the Act, it must be shown that the landlord is in occupation of a non-residential building in the city, town or village concerned, and that such building is his own or to the possession of which he is entitled to under the Act or otherwise and that in case of occupation of property by members of the joint Hindu family wherein the interest of a member remains fluctuating depending on the increase or decease in the number of members of the family, it cannot be said that the landlord is in occupation of a non- residential building, which expression, in the setting in which it has been used, would mean his own occupation in his own right and that on the same reasoning the non-residential building owned by the joint Hindu family cannot be called a non-residential building which is his own. The expression to the possession of which he is entitled has to be construed as an immediate entitlement to possession so as to satisfy his requirement as stated in (a) and (b) parts of sub-clause (iii).
Having so held, the Honble Supreme Court had dismissed the Special Leave Petition of the tenant. Therefore, the fact that the landlord in the instant case is doing business in a non-residential premises along with his father and uncle does not disentitle him from seeking recovery of the possession of the petition schedule property from the tenant as the schedule property is exclusively owned by him. Further, in the decision in Akhileshwar Kumar and others Vs. Mustaqim and others , the facts are as follows: Under the provision of Section 11(1)(c) of the Bihar Rent Control Act, the landlord had sought eviction of the tenant as the premises was required by his educated and unemployed Son for starting new business. The Son was already provisionally assisting his father in family business. Therefore, the tenant had contended that the relief of eviction shall be denied to the landlord. The Honble Supreme Court did not accept the contention of the tenant and had held that simply because the first plaintiff is provisionally assisting his father in their family business it does not mean that he should never start his own independent business. In view of the precedential guidance, the landlord in this case cannot be denied the relief simply either because he is assisting his father and uncle in the business or because he is jointly carrying on business with them in another non-residential premises.
5. (e) The next line of defence of the tenant is that the paternal uncle of the landlord is having number of properties in the city. This ground on the very face of it is untenable as it is not the case of the tenant that the landlord owns number of properties in the city.
5. (f) The next contention of the tenant is that the petitioner had entered into an agreement of sale with Mohd. Ilyas Khan to purchase the property bearing No.21-2-344 and 345, and that the landlord is the owner and possessor of the said properties.
Admittedly, even according to the contention of the tenant, there is no document of title like a sale deed in favour of the landlord in regard to that property. It is pertinent to note that exhibit B.5 is a certified copy of sale deed dated 27.12.1991 with plan and the same on a perusal would show that the mulgies bearing Nos.21-2- 344 and 345 situated at Lad bazaar were originally purchased by their father in the names of the landlord and his brother during their minority, and that subsequently the said property was sold under a sale deed dated 19.05.2000. The copy of the said sale deed with plan is exhibit B.6. The present petition schedule mulgi was purchased under a sale deed dated 05.08.1999, and the copy of the said sale deed with plan is exhibit B.4. Therefore, after purchase of the present schedule property the aforementioned properties were sold. Hence, it cannot be said that the landlord is the owner and possessor of the mulgies bearing Nos.21-2-344 and 345.
5. (g) The next contention of the tenant is that the landlord owns several other properties. In support of the said contention the tenant had exhibited certified copies of six gift deeds as exhibits B.7 to B.12. Exhibit B.7 on a perusal would show that under the original of the said document, a portion of the house bearing No.21- 2-319 was gifted to the petitioner. There is no evidence much less conclusive evidence that the said property is a non-residential premises. Exhibits B.8 to B.12 on a perusal would show that the petitioner is not the beneficiary under the said deeds of gifts.
5. (h) Therefore, none of the contentions raised by the tenant are established as required under law to disentitle the landlord to seek eviction of the tenant. It is not pleaded by the tenant that the ground for eviction is invented with an oblique motive and is not bonafide.
5. (i) It is pertinent to refer to the ratio in the decision in Smt. G.Kaushalya Devi Vs. Ghanshyamdas . The facts of the case show that the landlord who is already in possession of a non- residential premises in the very same city on leasehold basis had applied for eviction of the tenant under Section 10(3)(a)(iii) of the Act by stating that he required the premises in the occupation of the tenant and that the landlord is not occupying a non-residential building of his own in the city. The Honble Supreme Court held that the landlords possession of non-residential premises on a leasehold basis does not prohibit the landlord to seek eviction on the grounds of bona fide requirement for personal occupation. In that case a contention was also raised that another shop has been purchased by the mother of the landlord with the amounts loaned by this landlord and that on that ground it could be said that the landlord was entitled to possession of that shop as well. The High Court had not accepted the said contention of the tenant. Further, the High Court was of the view that the Act did not prohibit the eviction of the tenant by the landlord even if the members of the family of the landlord possess other non-residential properties. The Honble Supreme Court had held that the contention of the tenant has been rightly repelled by the High Court.
5. (j) Before parting with the case, it is necessary to refer to the following decisions relied upon by the learned counsel for the tenant. (1) Smt. Vidya Bai and another Vs. Shankerlal and another . In this decision, a Full Bench of this Court while dealing with a rent control case for eviction of a tenant filed under Section 10(3)(a)(iii) of the Act held as follows:
It is our considered opinion that under Sec. 10(3)(a)(iii) of the Act, a landlord in occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another non-residential building in the occupation of a tenant; the bar under the Section against securing eviction of the tenant of such non- residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the applicant (landlord) or to-, meet the bona fide need of any other member of the family of the applicant (landlord), independent of and over above the need of the applicant (landlord), are all, in our view, irrelevant considerations in the context of construing the provisions in S.10(3)(a)(iii) of the Act which, in clear terms interdicts the landlord, in absolute terms, from seeking recovery of the non-residential building belonging to him in the occupation of the tenant. We, therefore, hold that the ruling given by the Division Bench to the contrary in Balaiah's case : AIR1965AP435 (supra) does not represent the correct legal position. For the same reasons, the observations made by the learned Judges who decided M. Venkata Reddy's case (I966) 2 A LT 352 K. Venkaiah's case :
AIR1972AP123 and C. Manikya Rao's case (1976) 1 Andh WR 100, following Baliah's case : AIR1965AP435 (supra) also could not be upheld. Karachi Stores' case: AIR1982AP470 is distinguishable as the same is one failing under Sec. 10(3)(c) of the Act. So also is the decision in Madala Chinna Subba Rao's case (1983) 1 APLJ 125.
Reliance was also placed by the learned counsel for the tenant on the decision (2) D.Devaji Vs. K.Sudarashana Rao wherein the ratio in Vidya Bais case (4 supra) was approved. However, this Court has already referred to a decision of the Honble Supreme Court in Lingala Kondalaraos case (1 supra) wherein the Honble Supreme Court had doubted the correctness of Smt. Vidya Bais case (4 supra) and had observed as follows:
Incidentally, it may be noted that the Full Bench decision in Vidya Bai case was cited with approval before a Two Judge Bench of this Court in D.Devaji Vs. K.Sudarashana Rao (1994 Supplement (1) SCC 729). However, the correctness of this decision of this Court in D.Devaji case was doubted by another Full Judge Bench [See Boorgu Jagadeshwaraiah and sons Vs. Pushpa Trading Co. (1997) 8 SCC 108], whereafter, the matter came to be considered by a three Judge Bench in Boorgu Jagadeshwariah and sons Vs. Pushpa Trading Co. (1998 (5) SCC
572).
Further, in the decision in Gulab Chand Pukhraj Vs. R.B.Jinender Raj and another , the Honble Supreme Court had considered the questions - whether under Section 10(3)(a)(iii) of the Act, 1960, the co-owner can be treated as the owner of the premises and whether he is entitled to seek eviction of tenant from another non- residential premises? The Honble Supreme Court had referred to Vidya Bai case, D.Devaji case, and Boorgu Jagadeshwaraiah & sons case (all referred to supra) and other precedents and had held as follows:
In Boorgu Jagadeshwaraiah & Sons (supra), a three-Judge Bench of this Court examined all these three decisions given in D. Devaji (supra), Dr. Saroj Kumar Das (supra) and J. Pandu (supra) and came to the conclusion that the aspects of quality, size and suitability of the building have been totally put out of consideration. Non- consideration of the quality, size and suitability of the building would be to frustrate the purposes of the Act. The Court observed as under:
5. The expression "reasonably suitable accommodation" is the pivot of the provision permitting the court going into the question whether the premises involved were reasonably suitable for the purpose. It is on that count that Dr Saroj Kumar Das case was decided by making the following observation:
So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and to this counsel for both the parties also agreed but the main contention was that on the facts appearing in evidence in this case whether the inference could be drawn that the flat on the thirteenth floor in South Calcutta was reasonably suitable to satisfy the need of the appellant- landlord.
6. J. Pandu case is closer being one under Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 which we are examining. That case apparently was decided on its own facts as would be evident from the finding culled there from:
The fact that the respondent has been using the entire house purchased in 1970 i.e. including the `malgis' for residential purposes and that the respondent is forced to run the family business in a rented premises in the same locality where the lease premises are situate have weighed with the Rent Controller and the appellate authority to concurrently hold that the respondent's requirement of the building is undoubtedly bona fide. The findings have been sustained by the High Court as well. We cannot, therefore, accept the argument of Mr. Subba Rao that the order of eviction passed by the courts below and affirmed by the High Court is vitiated because of the ownership of four `malgis' by the respondent. The `malgis' have ceased to be non-residential premises from 1970 onwards and hence their mere ownership cannot preclude the respondent from seeking the eviction of the appellant under Section 10(3)(a)(iii).
7. It, thus, becomes evident that there is no conflict as such between the said decisions and they have gone on in the context of their own facts and the provisions of law. Even so, the argument of the appellant's learned Counsel carries weight that the intention of the legislature in D. Devaji case has been scuttled by putting an extremely narrow and literal construction on the provision. It has been observed therein as under: (SCC p. 732, para
4) The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom.
8. The aspects of quality, size and suitability of the building 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 case standing in the way of the landlord-appellant to have the issue examined from the point of view which would carry out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlord's claim is based lest the manner they are recounted cause prejudice to either of the parties.
In Boorgu Jagadeshwaraiah & Sons (supra), this Court was clearly of the opinion that the aspects of quality, size and suitability of the building cannot be out of consideration and doing so would be to frustrate the purposes of the Act. In the said case, the court remitted the matter to the High Court for considering the objection of the tenant as to the claim of the landlord.
The three-Judge Bench decision in Boorgu Jagadeshwaraiah & Sons (supra) seems to be a reasonable view and of course is binding on us.
Therefore, the decisions in Vidya Bai case and D.Devaji case are not helpful to the tenant in view of the precedential guidance in the later and larger Bench decisions of the Honble Supreme Court. Further, the decision in the case of (3) Narayanam Venkata Chalamaji Vs. Bairundan Amarsing was also relied upon by the learned counsel for the tenant in support of the contention that the landlord having possession of a part of the building cannot seek eviction of the tenant on the ground of personal requirement. The facts of the case show that in a batch of cases one case is filed under Section 10(3)(a)(iii)(b) by the landlord, who was running a lodge in part of the building, seeking eviction of the tenant on the ground of requirement of premises to commence business in computer training and sales. This Court held that under Section 10(3)(c) of the Act, the building must be the same in case eviction is sought for additional accommodation, and that under Section 10(3)(a)(b) the condition precedent is that the landlord cannot have any other non-residential building of his own for the bona fide purpose to commence a business in the year 2000. However, the Court referred to the ratio in the decision in Boorgu Jagadeshwariah & sons case and had held that there is no bar for seeking eviction of a tenant in the occupation of a non-residential building even if the landlord is in occupation of a portion of the non-residential building if it is not sufficient or suitable, but distinguished the facts of the case from the facts of the precedent. Therefore, this decision is helpful to the landlord. The legal position, therefore, is that even if a landlord is in possession of a non-residential building, which is not reasonably suitable and is not going to serve the purpose of his need, he can seek eviction of the tenant in occupation of a non- residential building as aspects of quality, size and suitability of building cannot be put out of consideration and as doing so would frustrate the purpose of the Act.
5. (k) One more important aspect which is to be taken note of is that the learned Rent Controller and the Additional Chief Judge had recorded concurrent findings of fact that the landlord had established the requirement of the schedule premises for the bona fide purpose of commencement of business, and that the tenant had failed to establish any of the contentions raised in the defence to show the disentitlement of the landlord to evict the tenant. The tenant could not point out that the said findings suffered from any factual or legal infirmity. Therefore, on careful examination of the facts and evidence, this Court is satisfied that it is not open to this Court in exercise of revisional jurisdiction to interfere with the concurrent findings of the Courts below, more particularly, when such findings are based on proper appreciation of the facts and evidence and are also found to be legally sustainable. The points are accordingly answered in favour of the landlord and against the tenant.
6. For the aforesaid reasons, the Revision is devoid of merit and is unsustainable; and is liable to be dismissed.
7. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. The tenant/revision petitioner is granted six months time from the date of this order to vacate and handover the vacant possession of the schedule property to the landlord. On the failure of the tenant to do so, the landlord is at liberty to obtain possession of the schedule property in accordance with the procedure established by law.
Miscellaneous petitions pending, if any, in this Civil Revision Petition shall stand closed.
____________________ M.SEETHARAMA MURTI, J 2nd June 2014