Andhra HC (Pre-Telangana)
Hardhayandas And Anr. vs Hifazat Hussain (Died) Per L.R. Aizaz ... on 21 September, 1994
Equivalent citations: 1994(3)ALT550
ORDER S.V. Maruthi, J.
1. These two civil revision petitions arise out of a rent control petition filed by the landlord for eviction of the tenant. C.R.P.No. 3782 of 1991 is filed against the judgment of the Chief Judge, City Small Causes Court at Hyderabad in Rent Appeal No. 508 of 1987 which was filed against R.CNo. 95 of 1980. The landlords are the petitioners in the civil revision petition.
2. Civil Revision Petition No. 4005 of 1991 arises out of an order in LA. No. 912 of 1990 in Rent Appeal No. 508 of 1987.1. A.No. 912 of 1990 was filed for adducing additional evidence, which was dismissed by the Chief Judge, City Small Causes Court, Hyderabad against which C.R.P.No. 4005 of 1991 was filed.
3. Both the civil revision petitions are disposed of by a common order. Tine facts, in brief, are as follows:
The petitioners are the landlords of the premises bearing Municipal No. 5-3-1064, Nizamshahi Road, Hyderabad. The building was a three storeyed building consisting of ground floor, first floor and second floor. In the ground floor there were mulgies with a godown on the rear-side, which are used for non-residential purposes and the first and second floors were used for residential purposes. On Dr. Fakurddin Hussain was the original owner of the building. One of the mulgies in the ground floor was occupied by the petitioners as tenants and they were running partnership business in ply-wood and hardware under the name and style of M/s. Sri Shyam Hardware and Ply Wood centre. The other mulgies and the godown in the ground floor were under the occupation of the respondent-tenant. The respondent is carryingon business in hardware and gardening tools as a tenant occupying the first floor and second floor as his residence. The petitioners purchased the entire building from its owner Dr. Fakruddin Hussain under a registered sale deed dated 9-9-1978. Thereafter the respondent alloted his tenancy to the petitioners and had been paying the rents to them.
4. The original tenant was inducted into possession of the premises on a monthly rent of Rs. 25/- about fifty years back and the rent had been raised to Rs. 150/- per month. The landlords, namely, the petitioners, filed R.C.No. 95 of 1980 on the file of the First Additional Rent Controller, Hyderabad seeking eviction of the respondent-tenant from the rest of the building on the ground they require the ground floor for their additional needs and the first and second floors for their residence as they were put up in a small flat belonging to the wife of the 2nd petitioners, which was not sufficient for their residential need and that if they shift their residence to the first and second floors of the demised premises, it would help them in looking after their business in the ground floor efficiently. The respondent resisted the eviction on the ground that the requirement of the petitioners was not bona fide and the eviction petition was brought which mala fide intention as he did not agree for enhancement of the rent.
5. The kei... Controller on the basis of the evidence addused, dismissed the eviction petition. On appeal, the Chief Judge, City Small Causes Court, Hyderabad confirmed the order of the learned Rent Controller, against which the present revision petition was filed.
6. During the pendency of the appeal before the Chief Judge, City Small Causes Court, Hyderabad I.A.No. 912 of 1990 was filed under Order 41 Rule 27 of the Civil Procedure Code to admit zerox copy of the ration card, Income Tax assessment orders, assessment orders passed by the Commercial Tax Department, rent receipts, sale deeds agreements, and extracts from the Registration of Firms. The said LA. was dismissed on the ground that except five documents, tine rest were already in the possession of the landlords at the time When P.W.I was examined in the year 1987. The learned judge also held that these documents were not necessary to dispose of the rent appeal, against which C.R.P.No. 4005 of 1991 was filed.
7. When C.R.P. 3782 of 1991 came up for hearing in the Court, a learned single judge passed the following order on 2-11-1993:
"After considering the various submissions made on behalf of the parties, I am of the view that there is a tain of unreasonableness in the order dismissing I.A.No. 912, of 1990 dated 30-7-1991 by the Chief Judge, City Small Causes Court and if it is allowed to stand, it will lead to miscarriage of justice. The petitioners landlords were unable to adduce these documents in evidence in defence notwithstanding their due deligence. I am of the view that the documents must go in record. Under these circumstances, I have no alternative except to set aside the order made in I.A.No.912 of 1990dated 30-7-1991 and allow I.A.No.912 of 1990 and mark the documents as additional evidence as 'P' series. Since the matter is of the year 1980 the learned Chief Judge, City small Causes Court is directed to record evidence relating to the documents filed as additional evidence only and submit the same to this Court within three weeks from to-day".
8. Pursuant to the above order, the learned Chief Judge, City Small Causes Court recorded the evidence of P.Ws. 1,2 and 3, documents were marked and the evidence and documents recorded by the Court were sent.
9. The Rent Controller while dismissing R.C.No. 95 of 1980 held that the 2nd petitioner, namely, Purushotham Lal Agarwal, acquired a flat in Brindavan Appartments which consists of three bed rooms, one hall, kitchen and W.C. and bath room and he was residing in that house. The contention of the petitioner that the said accommodation was no sufficient and that there was still the requirement of the 1st petitioner was rejected on the ground that the 1st petitioner was not living in Hyderabad and he was a resident of Calcutta-. In support of the said finding he relied on the following circumstances; that he never exercised vote in any of the elections at Hyderabad; that no ration card was produced evidentially that the 1st petitioner was a resident of Hyderabad; that the 1st petitioner was not examined and, therefore, adverse inference should be drawn that he was not a resident of Hyderabad and that no other document was filed. He also found that the petitioners were not specific whether they wanted to expand the business or to start any new business; that in the pleadings it was stated that they wanted to start glass business and that they have taken another house for their godown on rent. He found that the petitioners did not have any non-residential building except the building that was now under consideration. He also found that the respondent was carrying on business in the suit mulgi and it was his livelihood and the hardship that would be caused to the respondent if he was evicted would be more than that of the petitioners. He also found that the petitioner was not speaking the truth.
10. While confirming the judgment of the learned Rent Controller the appellate Court found that the petitioners were occupying about 2/3rds of the area in the ground floor in which they were running plywood business and that they have taken another premises near the demised premises for the purpose of godown on a monthly rent of Rs. 850/-. The appellate Court also found that the petitioners have not shown how the existing premises was insufficient for their plywood business and if they wanted to expand their business by opening new section in aluminium materials and glass, it cannot be said that they want to expand their existing business i.e., plywood business because the business in aluminium material and glass do not come under their existing business, namely, plywood business, and therefore, their requirement was not bona fide in so far as tire non-residential premises was concerned. As regards bona fide requirements of the residential premises, the learned Judge observed as follows:
"At the time when the eviction petition was filed, the petitioners were residing at Chikkadpally from where they moved into the present accommodation in Brindavan Apartments. But, the 1st petitioner did not come into the witness box to deny the contention of the tenant that he never lived at Hyderabad. Even if he was sick at any particular point of time, nothing prevented him from getting himself examined on Commission. No documentary evidence was adduced to show that the 1st petitioner was a resident of Hyderabad".
11. The learned Judge disbelieved the ration card for the period from 1987 to 1991, which contained the names of the 1st petitioner, his wife and also the name of the 2nd petitioner and his family members, on the ground that they failed to explain why it could not be filed at the time when P.W.I was examined, secondly, the 1st petitioner had not exercised his franchise in any of the general elections at Hyderabad, and that no voters list was produced from 1978 to 1991 evidencing that the 1st petitioner was living at Hyderabad. Even a certificate ' from the Census Department was not filed and from a mere looking at the ration card it cannot be said that the 1st petitioner was living at Hyderabad especially when no satisfactory explanation was offered for his non- examination. Since the 2nd petitioner was living with his wife and children in Brindavan Appartments owned by his wife, he held it was difficult to appreciate that the three bed room flat which was 1218 sq. yards insufficient for the needs of P.W.I, his wife and four children. The learned Judge also observed that "it is no doubt true that from the point of convenience to look after his business, the occupation of the first and second floors by P.W.I may be useful". Therefore, holding as above, the learned Chief Judge, City Small Causes Court dismissed the appeal filed by the petitioners.
12. The learned Counsel for the petitioners raised the following contentions:
(1) That tine petitioners who belongs to a family having large business would not purchase the suit premises in a prestigeous commercial ; locality merely for earning a monthly rent of Rs. 150/- after investing about Rs. 90,000/- in the year 1978. Therefore, while assessing the bona fide requirement this factor should be taken into account (refer to M/s. Bhoolchand v. M/s. Kay Pee Cee Investments, .
(2) They were carrying on business in plywood and aluminium and glass are ancilliary business and, therefore, they required the premises for the purpose of expanding the existing business. In this context the learned Counsel for the petitioners relied on a judgment of the Supreme Court in Blianwar Lal v. T.K.A. Abdul Karim, ., where it was held that:
"......The partnership was dealing in paper and paper products including stationery. It was doing the business of cutting, printing, and binding through job workers. Such business would certainly be allied to the business of paper and paper products".
13. The learned Counsel also relied on a judgment of the Supreme Court in Ahmedabad Mfg. & Calico Ptg. Co. v. Ramtahel, ., wherein it was held that:
......."The bungalows and gardens on which the malis in that case worked were a kind of amenity supplied by the mills to its officers and on this reasoning the malis were held to be engaged in operations incidentally connected with the main industry carried on by the employer. It was by relying on the ration of this decision that the High Court in the present case came to the conclusion that the workers in order to come within the definition of "employee" need not necessarily be directly connected with the manufacture of textile fabrics".
14. in J.K. Cotton Spg. & Wvg. Mills Co. v. L.A. Tribunal of' India, AIR (51) 1964 SC 1964., it was held that "malis are employed in the industry and are workmen within Section 2 (s) and Section 2 of U.P. Act 28 of 1947".
15. Therefore, the business that they proposed to carry on, namely, aluminium and glass are not only ancillary but incidental to the business that they were carrying on, namely, plywood business.
16. The learned Counsel further submitted that the main basis on which the eviction was sought in so far as the non-residential building is concerned is that they intend to expand the business, whereas both the Courts below found that the petitioners required the premises for setting up a new business, which is not based on facts. Therefore, the learned Counsel submitted that the findings of both the Courts below are liable to be set aside as it is not based on pleadings and evidence.
17. The Counsel appearing on behalf of the respondent vehemently opposed the arguments of the Counsel for the petitioners. According to the learned Counsel, Sri P.R. Prasad, there is no specific plea that the non-residential premises is required for expansion of the existing business. There is also no evidence that the business in aluminium and glass are incidental or ancillary for the purpose of carrying on business in plywood. The pleadings are vague and, therefore, the petitioners are not entitled to seek eviction on this ground. Further the eviction petition is filed seeking eviction under Section 19 (3) (a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as 'the Act')- If the petitioners are seeking eviction on the ground that they require the non-residential building for the purpose of expanding the existing business, the eviction petition ought to have been filed under Section 10 (3) (c) of the Act. The landlords have miserably failed to bring out the particulars necessary for the purpose of causing eviction and they have failed to plead specifically in terms as per the requirements of law and, therefore, the eviction petition suffers from infirmity in not establishing the case for eviction (refer to G. Narayam v. G. Kishanji, 1988 (2) ALT 218.).
18. A landlord is not entitled to evict the tenant from a non-residential building if the landlord is already occupying a non-residential building in the samecity or town which is his own or to the possession of which he is entitled to (rlier to D. Hanumayya v. G.R.K. Murthy, 1989 (2) ALT 100.).
19. Therefore the Counsel for the-respondent submitted that the petitioners are not entitled to evict the respondent. Before the petitioners seek eviction of the tenants from the non-resf dential building on the ground that the same is required for their own business, they must give the particulars of proposed business and also the preference as to why the particular premises are required in the eviction petition itself and any contravention will be fatal. The particulars must not be vague or equivocal. The landlords must bring out adequately the necessary material without any ambiguity enabling thereby the tenant to counteract the claims sought to be made by the landlords (refer to P. Latchanna v. G. Appa Rao, .).
20. In view of the ambiquity in the pleadings the Counsel submitted that the petitioners are not entitled for the relief claimed in the eviction petition. The Counsel also submitted that the hardship of the tenant is one of the considerations to be taken into account before ordering eviction under Section 10 (3) (c) of the Act. The learned Counsel brought to my notice, in this context, the following observations of the Supreme Court in Gangaram v. N. Shankar Reddy, .:
".....If the hardship experienced by landlords is to be alleviated, then it is for the Legislature to remedy the situation by making suitable amendments to the Act and it is not for the Court to read Section 10 (3) (c) beyond its terms oblivious to the limitations contained therein and hold that a separate tenanted building adjoining the building in the owner's occupation would also form part of the latter building". Counsel submitted that in view of the infirmities in seeking eviction of the respondent from the non-residential building the revision petition cannot survive.
21. Further, the lease being a composite lease, namely, both for residential and non-residential, and if the petitioners cannot succeed for eviction in respect of either of the buildings, namely, non,-residential or residential, the eviction petition is not maintainable. Therefore, the revision petitions have to be dismissed in limini. In Miss S. Sanyal v. Gian Chand, . it was held as follows:
"The jurisdiction of the Court may be exercised under Section 13 (1) (e) only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purposes residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts. One of letting for residential purposes and the other for non- residential purposes, and to grant relief to the landlord under Section 13 (1) (e) limited to the portion of the demised property which is being used for residential purposes".
22. Justice Rama Rao, as he then was, in Dr. Madhusudan Mahuli v. L. Indira Bai, 1987 (2) ALT 504.,observed that:
".....There is no provision under the Rent Control Act for eviction based upon bona fide personal requirement in respect of premises let out for mixed purpose of residential and non-residential. The bona fide personal requirement is founded upon the legitimate necessity of the landlord and in the event of composite lease, the landlord is deprived of the remedy under the Rent Control Act. The ingredients for eviction for residential and non-residential are distinct and separate though there are certain similar features and in the absence of any provision in respect of premises bearing composite lease it is not possible to lead Section 10 (3) (a) with a provision for eviction in respect of premises having composite lease".
Similar is the view expressed by a Division Bench of this Court in Susheela Bai v. Chandulal T. Parikh, 1975 ALT 133. It was held as follows:
"If a statute has provided for securing a relief in a particular manner, that cannot be given a go by and recourse cannot be taken to the power of exemption, thereby defeating the provisions of the statute and the purposes for which the Act has been made".
23. The learned Counsel submitted that in view of the above decisions, the petition for eviction is not maintainable as the lease was a composite lease, namely, both for residential and non-residential and, therefore, the revision petitions are not maintainable and they are liable to be dismissed in limine.
24. The learned Counsel also submitted that, this being a pure question of law, though such plea was not raised and no fresh facts required to be investigated, the matter could be dealt with at the stage of revision, (refer to State Bank, Hyderabad v. V.A. Bhide, .).
25. Replying on the judgment of the Supreme Court in Pankaj Bhargava v. Mohinder Nath, ,. Counsel submitted that an inference from facts admitted or found is a question of law if such an inference is to be drawn on the application of proper principles of law to the facts. Such determination is a mixed question of fact and law. Therefore, it is open to this Court to consider this question in a revision petition.
26. As regards tine relief claimed seeking eviction of the residential premises, the learned Counsel submitted that both the Courts below found that the 1st petitioner was not a resident of Hyderabad and the documents filed do not establish that he is a resident of Hyderabad. At the most, they establish that he is a partner of the business. Moreover, it is emphatically stated by the tenant that the 1st petitioner is a resident of Calcutta and there is no evidence that he is a resident of Hyderabad.
27. The learned Counsel appearing for the petitioners submitted that there is a specific plea that the premises is required for expanding their business.
Further the argument that the eviction petition is not maintainable if the landlord fails in seeking eviction in respect of residential /non-residential as the lease was a composite lease was not raised neither in the pleadings nor during the course of arguments and that therefore, the tenant should not be permitted to raise at this stage.
28. The learned Counsel for the petitioner also relied on the (i) zerox copy of Ration Card for the years 1987 to 1991; (ii) Income tax assessment orders dated 28-1-1988, 30-9-1985 and the advance tax payment receipt dated 7-12-1982; (iii) assessment orders of the Commercial Tax Department dated 31-1-1986, 13-11-1981,26-5-1988,30-9-1985 and 7-6-1989, and (iv) a letter dated 2-6-1982 addressed by the firm to the Commissioner of Income Tax, West Bengal stating that the 1st petitioner was a resident of Hyderabad since 12 years prior to that date; that he was a partner of M/s. Shyam Hardware and Plywood Centre since ten years prior to that date; that the said firm was assessed to income tax by the Income Tax Officer, Hyderabad; that he had no source of income in Calcutta and he does not stay at Calcutta and that he would pay advance tax at Hyderabad for the assessment year 1983-84 and thereafter, he would file the return of his income at Hyderabad and, therefore, requested the Income Tax Officer, T- Ward, Calcutta to transfer his file to Hyderabad after completing the pending assessment till assessment year 1982-83. The acknowledgement of this letter is dated 7-3-1984. Similarly, there were two acknowledgments issued by the office of the Chief Commissioner of Income Tax, Calcutta dated 15-6-1982 and 3-3-1984 acknowledging the receipt of the petition for transfer of file from Calcutta to Hyderabad. There is another letter dated 3rd March, 1984, wherein the 1st petitioner wrote to the Commissioner of Income Tax, West Bengal, Calcutta stating that he was facing hardship as his files and records were not transferred to Hyderabad. The fourth set of documents which were relied on by the Counsel for the petitioners are certificates of registration issued by the Registrar of Firms, in which the 1st petitioner is a partner, was shown as 18-9-1973 and there was no change in the partnership concern and the 1st petitioner was shown as one of the partners in the certificate of registration. The other documents relied by the petitioner is the sale deed in respect of the flat obtained in Brindavan Appartments by the petitioners. The other document on which reliance was placed by the petitioners was a challan-cum-bill dated 16-6-1978, wherein the 1st petitioner was shown as a resident of Hyderabad. The Counsel for the petitioner submitted that in view of the voluminous documentary evidence adduced, pursuant to the order of the learned Single Judge dated 2-1-1993 establishing that the 1st petitioner namely the father of the 2nd petitioner as a resident of Hyderabad, both the Courts below gave a finding based on no evidence and is liable to be set aside. Whereas, the learned Counsel for the Respondent submitted that the zerox copy of Ration Card is not admissible in evidence; that no evidence of renewal of these Ration Cards was adduced; that the assessment orders, at the most indicate that the 1st petitioner was a partner of the firm and nothing more than that and that in none of these documents the residential address was given and only the address of the firm was given and, there even these documents do not establish that the 1st petitioner is a resident of Hyderabad.
29. The first contention is that there was no specific plea that the petitioners required the premises for expanding their business. It is not disputed that the petitioners were carrying on in plywood business. It is also not disputed that they were originally the tenants of the building and they have purchased the same from the original landlord in the year 1978 under a registered sale deed. The building is also situated in a commercial locality. Therefore, it would be difficult to believe that the petitioners have purchased the suit premises in a prestigeous locality merely for earning a petty rent of Rs. 150/- per month from the tenants by investing Rs. 90,000/- to acquire the said business premises. This factor weighs heavily in favour of the landlord in assessing the landlords' bona fide requirement set up in the present case as stated by the Supreme Court in M/s. Bhoolchand v. M/s. Kay Pee Cee Investments (1 supra).
30. The next aspect to be considered is whether there are pleadings seeking additional accommodation for the purpose of expanding their business. Now I may refer to the pleadings in the rent control petition. The preamble refers to Section 10 (3) of the Act. It is further stated "that one of the mulgies in the ground floor of the said building was already in possession and enjoyment of the petitioners herein who were doing their plywood and hardware business in partnership. Under tine name and style of Sri Shyam Hardware and Plywood Centre. The said mulgi was neither suitable nor sufficient to expand their business or to commence their new business of glass etc. The petitioners submit that the mulgi under their occupation wherein they are running the business of plywood and hardware in partnership is not sufficient and bonafidely intend to commence their own business of glass in the mulgiand ground floor under the tenancy of the respondent; that the business of the petitioners is a flourishing business and they bonafidely intend to expand their business by opening glass and aluminium sections and other items allied to their present business. Thus their need and requirement is genuine and bona fide". In the counter-affidavit filed by the respondent it was stated that "the petitioners are having another plywood shop by name Plywood Traders in the same road and that the petitioners are owners of mulgi No. 5-3-960/1 in the same locality which is in their possession for running business and the present accommodation is sufficient for their business and that the requirement is neither genuine nor real". There is no specificaverment stating that neither the petitioners proposed to expand their business nor that the business is glassware is not allied business to the business of plywood. On the basis of these pleadings, the 2nd petitioner was examined. In his evidence he stated "that the mulgi is not sufficient for the business and, therefore, the petitioners have taken godown on rent for their transaction; that they have purchased the build ing for Rs. 90,000/-; that they wanted to commence glass business in the suit mulgi and that the petitioners have funds to commence that business. The glass business is concerned to ply-wood when both are needed for the same purpose. They have a furniture making". In the cross-examination he stated "that he is doing business in hardware and plywood in the mulgi in their possession under the name and style of 'Sri Shyam Hardware and Plywood Centre". They wanted to expand the business of glass, aluminium sections which are allied to their present business and that they are running business in aluminium hardware, plywood at present and they have not started the glass business at present".
31. R.W.I in the chief examination stated that the plea of the 2nd petitioner that he intends to start new business is false. In the cross-examination he stated that he does not know if along with plywood and hardware business, glass and aluminium business is also being carried on, and admit that the petitioners have sufficient funds to start the business and that it is incorrect to say that the petitioners want to have glass and aluminium business in the shop in the occupation of the respondent and that it is not true that the present shop in occupation is not sufficient for their business. He has further stated that he knew the business of Sri Shyam Hardware was a partnership business wherein both the petitioners are carrying on business.
32. From the above narration of the pleadings as well as the evidence, it is clear that the petitioners went to the trial on the specific ground that they wanted the premises for the purpose of expanding the business, that the present premises is not sufficient and that the glassware is allied business to plywood and aluminium business. Therefore, the contention of the learned Counsel for the respondent that mere is no specific plea that the eviction was sought under Section 10(3)(c) of the Act and, therefore, the eviction petition is not maintainable is not correct. In the light of the view expressed above, it is not necessary to refer to various judgments relied on by the learned Counsel for the petitioners referred to in the earlier paragraphs. It is not disputed that the petitioners do not possess any non-residential building in Hyderabad and that they have taken a godown on rent for the purpose of their business. From the pleadings and evidence referred to above, it is clear mat the petitioners have laid the foundation that the premises is required for the purpose of expanding the existing business. Both the Courts below have not taken into consideration the evidence on record and the pleadings. There is no cross-examination by the respondent when the petitioner stated that aluminiumand glassware are allied and they are running plywood and aluminium business and they have yet to start glassware.
33. It is true that in the preamble of the eviction petition Section 10(3) of the Act was referred but in paragraph 6 a reference was made to Section 10(3)(i)(a)(i) and Section 10(3)(a)(iii)(b). However, in view of the specific pleadings and evidence adduced and in view of reference to Section 10 (3) in the preamble and failure to mention Section 10(3)(c) of the Act does not disentitle them to seek eviction as the petitioners have categorically established that the premises is required for expanding their plywood business by establishing aluminium and glassware which is ancillary and incidental to the said business.
34. In K. Veeraswamy (died) per LRs. v. G. Nagarathnamma (died) per L.Rs. ., a case where both the Courts below have applied wrong tests and ignored the pleadings and evidence on record in dismissing the eviction petition and, therefore, suffered from manifest error in the exercise of its jurisdiction in deciding the petition and, therefore, it was held that it is open to interfere in exercise of the power conferred under Section 22 of the Act.
35. I may also point out at this stage a Division Bench of this Court in B. Eswaramnui v. A Appu Rao, 1988(1) ALT 366.; was held that "what is necessary under the Act is the satisfaction of the Controller about the requirement of the premises by tine landlord for starting a business. It does not deal with pleadings at all. It is the satisfaction of the Controller that is important and that satisfaction must be on a consideration of the entire material on record i.e., the pleadings as well as evidence. It may be any business as there is no limitation in the section as to the nature or type of business. Whether the requirement is bona fide or not depends upon the evidence. In spite of the fact that no particulars are given in the petition, if there is sufficient material in the case to show that the requirement of the premises to start a business is bona fide the relief of eviction cannot be denied. The question of bona fide requirement has to be decided on a consideration of the entire material on record and by taking the cumulative effect of all the circumstances".
36. In B.R. Andewar v. Lingari Narsimha, ., a learned Single Judge of this Court held that "under SectionlO(3)(c) of the Rent Control Act, it is merely necessary to establish that the landlord born fide requires additional accommodation for residential purpose or for the purpose of business which he is carrying on an the case may be and it is not necessary to plead that he has no other suitable accommodation".
37. In Ananta v. P. Govindaswamy and Anr., 1992(1) ALT 45., rejecting the plea of the respondents that the eviction is based on their personal requirement only and is not based on any plea that the premises is required for their additional accommodation, it was held that "a complete reading of the eviction petition clearly shows that the respondents, in fact, pleaded that they require the premises for their additional accommodation. The Court will not be justified in insisting on technicalities but has to look into the spirit of the petition".
38. It was next vehemently contended by the learned Counsel for the respondent that there is a specific plea by the respondent that this is the only business that he is carrying on and this is the livelihood and if he is evicted from the premises his livelihood would be effected and it would create a greater hardship than the hardship that may be caused to the petitioners and under Section 10(3)(c) proviso, one of the considerations is that the authorities have to assess the relative hardship that would be caused to the landlord as well as the tenant and if the hardship that would be caused to the tenant is greater than the hardship that would be caused to the landlord and even if the landlord establishes bona fide requirement, no eviction should be ordered. The learned Counsel submitted that there is a categorical finding that the hardship that would be created to the tenant would be greater than the hardship that would be created to the petitioner and in view of it no eviction would be ordered.
39. It is true that the Rent Controller found that the hardship that would be caused to the respondent is more than that of the petitioners, whereas the Chief Judge, City Small Causes Court, Hyderabad has not considered this aspect. According to the learned Rent Controller, since the petitioners are carrying on business in a portion of the building, if the tenant is asked to vacate, it should cause hardship to the tenant.
40. It is true that the evidence of the respondent discloses that it would create hardship if he is evicted. It is also true that under Section 10(3)(c) of the Act the relative hardship is to be taken into account before ordering eviction. I have already pointed out that this building was purchased by the petitioners in 1978 for dual purpose of having both residential and non-residential accommodation. As stated by the Supreme Court, it would be something unheard of that a person would purcha se a building in a commercial locality for the purpose of letting it out fora petty sum. From the evidence referred to above, the petitioners have established that they proposed to expand their business and also they have taken a godown on rent and they are not in possession of a non-residential building, or to the possession of which they are entitled. In a case like this, while making the assessment of relative hardship, when the landlords have established the bona fide requirement and when they are not in possession of a non-residential building or to the possession of a non- residential building they are not entitled, the relative hardship is more in favour of the landlords than in favour of the respondent.
41. The next contention of the learned Counsel for the respondent is that it is a composite lease. In view of my finding that the petitioners have established that they need the premises for expanding their existing business it is not necessary to consider this. Further, they cannot be permitted to raise the same for the following reason.
42. Admittedly, this point was not raised either in the pleadings or during the course of evidence. Therefore, he cannot be permitted to raise the same at the stage of revision petition. In this context, I may refer to a judgment of a learned Single Judge of this Court in Ananta v. P. Govindaswamy and Anr. (18 supra), wherein the contention that the building comprises of residential and non-residential premises and hence the lease is a composite lease and that the rent controller has no jurisdiction to deal with the matter was rejected as the said contention was not raised either before the rent controller or before the appellate authority and it was held that "petitioner cannot be permitted to raise the contention for die first time in revision the question involves investigation of facts which cannot be done without any plea or raising of an issue and the adduction of evidence by both the parties."
43. The next contention to be considered is whether the 1st petitioner is a resident of Hyderabad and whether the requirement of the landlords in respect of the residential building is bona fide. Admittedly, the first and second floors were in the occupation of the respondent as a residential building. The object with which the petitioners have purchased the building is that they can use the first and second floors for their residential purpose and carry on business in tine ground floor which would be more convenient for them. The subsequent events establish that the petitioners were forced to vacate the residential premises which they were occupying and shifted to a flat in Brindavan Appartments purchased by the wife of the 2nd petitioner. It is not in dispute that the 2nd petitioner is having four children and the accommodation available was three bed-room flat which is said to be 1218 sq. ft., that he has to accommodate his wife and four children and that the building that they have purchased has a built up area of the ground floor 1664 sq. ft., first floor 977 sq. ft., and the second floor 977 sq. ft. Admittedly, the built up area in the building which is available for the purpose of residential accommodation is double the accommodation that is available in the Brindavan Appartments which they have purchased during the pendency of the eviction proceedings. The 2nd petitioner has to accommodate his wife and four children along with his father (namely, 1st petitioner) and mother in the three bed-room flat. It is something unreasonable and unjust to drive the landlords to suffer in a small appartment having purchased a bigger accommodation by investing huge amount in the year 1978. Apart from that, even if the ration card of the 1st petitioner is excluded, the certificate of registration issued by the Registrar of Firms indicates that the firm was registered on 18-9-1973 and the name of the partner is shown as the 1st petitioner and his residential address is shown as Barkatpura, 3-4-575/1, Hyderabad and there is no change in the partnership even on the date on which a copy of the registration was issued, namely, on 25-4-1990. There is no reason why this document should not be relied upon for the purpose of holding that the 1st petitioner is a resident of Hyderabad. Even the assessment orders, both income tax as well as sales tax, indicate that the 1st petitioner is a resident of Hyderabad. It is pointed out by the learned Counsel for the petitioners that the Income Tax Department insists on giving the address of the firm in the assessment order and hence the 1st petitioner has given the address of the firm in the assessment orders. There is no reason why these documents should not be relied vipon for the purpose of holding that the 1st petitioner is a resident of Hyderabad.
44. Coming to the oral evidence, R.W.I in his evidence admitted that he knew mat the business of Shyam Hardware was a partnership business wherein the petitioners are carrying on business and that he heard that petitioner No.l is residingat Calcutta. In other words, the case of the respondent that 1st petitioner is resident of Calcutta is hear - say evidence.
45. Therefore, taking into consideration the above material, I am of the view that the petitioners are entitled to succeed and tine revision petitions are accordingly allowed with costs.
46. Time for vacating the premises is granted for six months subject to the condition that the respondent should continue to pay rent. In default, the above order stands vacated.