Andhra HC (Pre-Telangana)
T. Srihari And Anr. vs Haneef Brothers And Ors. on 12 October, 1995
Equivalent citations: 1996(1)ALT678
ORDER N.Y. Hanumanthappa, J.
1. These are landlords' revision petitions filed challenging the judgment dated 28-6-1994 in R.A.No.267 of 1992 and I.A.No.551 of 94 on the file of the Chief Judge, City Small Causes Court, Hyderabad.
2. A few facts which are necessary to dispose of these revision petitions are as follows:- The petitioners are the landlords and the respondents are the tenants of the premises bearing municipal number 4-6-230 (Old No. 1862), the monthly rent being Rs. 850/- per month. The case of the landlords is that the petitioner No.l being an employee of Niloufer Hospital, intends to start a cloth business on his retirement from service. So also his son by name Narasingdas, who has been carrying on his business in repairs and service of refrigerators under the name and style of 'Supra Refrigeration' intends to start his business in the demised premises. As such the landlords made several requests to the respondents to vacate the demised premises, in view of landlords' born fide personal requirement. Failure on the part of the respondents compelled the landlords to approach the Court of the Rent Controller, Secunderabad in R.C.No.273 of 1987.
3. The claim of the landlords was resisted by the respondents on two grounds, namely, the bona fide requirement, so far as the first petitioner is concerned is premature as he is having three more years' service, and so far as his son is concerned, the demised premises is quite insufficient in space for such businesses. The respondents further contended that because the demand of the landlords to enhance the rent from Rs. 851/- to Rs.1,200/- per month and also Rs.15,000/- towards paged was not met by them, this case is filed and in order to show the respondents as defaulters, the landlords refused to receive rent also.
4. On the basis of the above pleadings., the Trial Court framed the following points:-
1. Whether the petition is maintainable without imp leading all the partners of the respondent-firm?
2. Whether the petitioners bona fide require the demised premises for their self-occupation to carry on their own business?
5. In support of their rival contentions, both the parties adduced evidence, both oral and documentary. On behalf of the petitioners, the first petitioner and his two sons were examined as P.Ws.1 to 3 and Exs.P-1 to P-35 were marked. On behalf of the respondents, a partner of the firm was examined as R.W.1 and Exs.R-1 to R-8 were marked.
6. The trial Court after appreciating the entire evidence, both oral and documentary, answered both the points against the landlords and in favour of the respondents, and dismissed the R.c. by its judgment dated 20-4-1992.
7. Aggrieved by this judgment, the landlords preferred an appeal in R.A.No.267 of 1992 before the Chief Judge, City Small Causes Court, Hyderabad, wherein they have also filed I.A.No.1559 of 92 seeking the amendment by adding all the partners as respondents and also by adding a new paragraph No.4 (a) to the original petition, which was allowed on 19-1-1993.
8. The purport of the new paragraph is that another son of the first petitioner also passed LLB and started his legal practice in the office of some senior counsel, and he requires the demised premises for his use as law chambers.
9. The appellate Court, by its order dated 29-10-1993 in I.A.No.1630 of 93 remitted the matter to the trial Court to give a finding whether the youngest son of the first petitioner, by name Jaikishandas, bona fide requires the demised premises for setting up him own office.
10. After the matter was remitted to the Lower Court, the Trial Court framed the following point for consideration:-
Whether the requirement of the petitioners of a portion of the schedule premises for the purposes of locating the proposed office of their son, who is the Junior Advocate is genuine and bona fide?
11. R.W.1 was further examined and no documents were marked on either side. On a consideration of this point, the trial court found the point in favour of the respondents and the petition came to be ended up in dismissal.
12. The learned appellate judge framed the following point for consideration.
Whether the petitioners bona fide require the demised premises for their occupation?
13. The learned appellate Judge once again appreciated the entire evidence, both oral and documentary, and taking into consideration the various decisions relied upon by the parties, found the point in favour of the respondents and dismissed the appeal, and also I.A.No.551 of 94 filed with a request to receive the additional evidence holding that the electricity bills sought to be filed have no relevancy to the facts of the case and also mat the petition a belated one.
14. The learned Chief Judge, City Small Causes Court found that even though the petitioners are carrying on the business in a 'dabba' situated just a adjacent to the demised premises, as reported by the Commissioner, that is not sufficient for them to carry on the intended business. According to him the premises leased out to krishna Yarn Merchant was for a non-residential one. When the said Krishna Yarn Merchant vacated it and now in occupation of the petitioners, question of once again seeking for eviction of the tenant from the premises for non-residential use not warranted. According to him, suitability, convenience or sufficiency of the existing building are not a ground to consider the petitioners' request, he further held that from the facts an circumstances, no doubt, the present non-residential premises which is in occupation of the petitioners is not sufficient for their needs, but unfortunately and to their ill-luck, the legal position is against them. According to him the law laid down by the Full Bench of this Court in Vidyavathi Bai v. Shankerlal, (F.B.), and approved by the Supreme Court in D. Devaji v. K. Sudarshan Rao, 1994 (1) APLJ 5 (SC) = 1994 Supp. (1) SCC 729, bars a landlord seeking eviction of the tenant from the premises for the Reason that a landlord in possession of a non-residential building cannot get back possession of another non-residential building in possession of the tenant. Also observed that the suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord or the bona fide need of any member of the family of the landlord independent of and over and above the need of the landlord are all irrelevant considerations. He lastly observed that if the landlord had filed an application under Section 10(3)(c) of the Act seeking the premises by way of additional accommodation for their non-residential purpose, the position would have been different. Thus observing, he dismissed the appeal.
15. Aggrieved by such judgment, these revision petitions, contending that the Courts below erred in appreciating the evidence properly, so also in holding the rear side of the building a non-residential one and the mere presence of the name boards would make it a non-residential one, also erred in not considering the report of the Commissioner, which establishes that the demised premises is not a non-residential one, and also erred in not properly reading the Full Bench decision of this Court.
16. It is further contended that the lower appellate Court would have seen that the documents sought to be filed through I.A.No.551 of 1994 by way of additional evidence, would establish that the portion occupied by M/s Krishna Yarn Merchant was not a non-residential building, but it is part and parcel of the residential building bearing D.No.4-6-231 and the lower appellate Court erred in stating that such a petition was a belated one.
17. To know how far the contentions raised by both the sides require consideration, it is proper to understand the scope of Section 10 (3) (a) (iii) of the A.P. Building (lease Rent and Eviction) Control Act, 1960 (hereinafter, for short, referred to as 'the Act'), which is extracted hereunder,-
"Eviction of Tenants:
(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13.
xxxx xxxxx xxxx xxxx xxxxx xxxx (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-
xxx xxx xxx xxx xxx xxx
(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;
The effect of the said Section or similar provisions of Rent Control Acts in other States, came up for judicial scrutiny and the Courts, in some of the asses, took the views in the following manner:-
18. In the case of Balaiah v. Lachaiah, (D.B.), while considering the scope of Section 10(3)(a) (iii) of the Act, a Division Bench of this Court took the view that a landlord can seek eviction of the tenant of the premises for the bona fide use and occupation of his undivided major son.
19. In M. Narasimha v. Jayanthilal Gokuldas, , while referring to similar provisions in Karnataka Rent Control Act, the High Court of Karnataka took the view that requirement of landlord}s wife and other members is also the requirement of the landlord himself.
20. In Padmanabha Setty v. Papaiah Sett, , the Supreme Court took the view that a landlord's possession of another building as a tenant, is no bar to the eviction of a tenant.
21. In Vijayalaxmi Printing Press v. N. Shankar, (F.B.), a Full Bench of this Court took the view that a landlord in occupation of a non-residential premises of his own, but conducting his business as a tenant in a non-residential premises belonging to another person, is not barred from seeking permission of the Court to evict the tenant on the ground that he requires the premises for his bona fide use and occupation.
22. In J. Pandu v. R. Narsubai, , while considering the suitability, convenience and need of other members of the family, the Supreme Court took the view that ownership of malgis which are not used as shops nor suited for such purpose, does not disentitle the owner to seek recovery of possession from the tenant.
23. However, if the tenant is in occupation of a separate building and not a portion of the building which is in occupation of the landlord, the landlord is not entitled to seek eviction of the tenant, as held by the Supreme Court in Gangaram v. N. Shankar Reddy. .
24. Whereas in Vidyavathi Bai v. Shahker lal (1 supra), a Full Bench of this Court took the view that the 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.
25. Again the effect of the above section had fallen for consideration in D.Devaji v. K. Sudarshana Rao (2 supra) and the Supreme Court observed that the intendment of the legislature 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 in the occupation of a tenant. It further observed that the question that had fallen for consideration in Vidyavathi Bai's case (1 supra), namely, whether the bona fide need of any other member of the family of the landlord, independent of and over and above the need of the landlord, was left open, since that question did not arise in Devaji's case (2 supra) on facts.
26. The point for consideration is whether the landlord, in possession of the residential premises, but not in occupation of a non-residential premises, can seek eviction of the tenant from a non-residential building for the bona fide use and occupation of his son or other family member?
27. In order to answer this question both sides placed reliance on various decisions already referred to. The Courts in Balaiah's case (3 supra), M. Narasimha's case (4 supra), Padmanabha Setty's case(5 supra), Vijayalaxmi Printing Press case (6 supra), and Pandu'a case (7 supra) took the view, that a landlord who is not in occupation of non-residential building but tenant in occupation of such a premises, can seek for eviction of the tenant, for bona fide use and occupation of himself or other members of his family, whereas respondents contended that in view of law laid down in Vidyavathi Bai's ease (1 supra), Vijayalaxmi Printing Press case (6 supra) and Devaji's case (2 supra), eviction not permissible. But the circumstances involved and the point arisen had not cropped up for consideration in above three cases. On the other hand the Supreme Court, while disposing of Devaji's case (2 supra) observed that the question, namely, whether the bona fide need of any other member of the family of the landlord, independent of and over and above the need of the landlord -did not arise for its consideration on the facts of Devaji's case (2 supra).
28. Keeping in mind the effect of Section 10 (3) (a) (iii) of the Act and its interpretation by Courts, now we have to analyse how far the views taken by the Courts below on rival contentions, are valid and tenable.
29. On a perusal of the judgments of the Courts below, it is clear that the courts below, particularly, the learned Chief Judge proceeded with the case as if the premises that was in occupation of M/s. Krishna Yarn Merchants was a non-residential one, because they were carrying on Yarn business in the said premises, even though the Assessment made against the said premises and nature of water and electric consumption shows it as residential. From the evidence given, it is clear that the landlord wanted the premises in question for use and occupation of himself and his sons for non-residential purposes. It has come in evidence that the petitioners are staying in the premises that was leased out to M/s. Krishna Yarn Merchants. Commissioners' report is to the effect that they are carrying on cloth business in a Dabba, a small one. Learned Chief Judge misunderstood the scope of the point that had arisen for consideration in Vidyavathi Bai's case (1 supra) and Devaji's case (2 supra). If the same was understood properly, the finding would have been that the landlord who is in occupation of a non-residential building as a tenant is entitled to seek eviction of a tenant in occupation of a non-residential building, for the bona fide use and occupation of either himself or any other family member for the same use.
30. Further, the Court below also committed a mistake in not considering the request of the petitioners for production of additional evidence. The procedure followed and reasoning adopted by the Courts below are quite incorrect and contrary to the provisions of the Act and the principles laid down by several Courts. As such the judgment and orders of the Courts below are liable to be set aside.
31. An attempt was made by the learned counsel for the tenants that the Rent Control Act is a beneficial piece of legislation, meant for the tenants and interpretation of any of the provisions of the Act shall go in favour of the tenant and not in favour of the landlord. Respondents contended that if this principle is extended to their case also, there cannot be their eviction. But, it is very difficult to accept such a proposition, in view of the law laid down by the Supreme Court in the following two cases.
32. In Lakshmi Venkateshwara Enter prises (P) Ltd. v. Syeda Vajhiunnissa Begum, 1994(2)RCR 121 (SC), the Supreme Court categorically held in Para 14, that it is not correct to hold that the Rent Control Act is a beneficial enactment only to the tenant.
33. In K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, 1994 (2) RCR 236 (SC), the Supreme Court held as follows:-
"... We may also indicate here that the contention that the Rent Act is a legislation for protecting a tenant will be oversimplification of the legislative import of the Rent Act. In our view, it will be more appropriate to hold that the Rent Act regulates the incidence of tenancy and inter se rights and obligations of the landlord and tenant".
34. The respondents, lastly, contended that these two revision petitions are not maintainable as they are directed against the orders which are the resultant of finding of facts. To support his contention,the learned counsel for the respondents placed reliance on Rukmini amma v. Kalyani Sulochana, , wherein the Supreme Court, while dealing with the powers of High Court under Section 20 of the Kerala Buildings (lease & Rent Control) Act to reappreciate the oral and documentary evidence, held as follows:-
'Even the wider language of Section 20 of the Act cannot enable the High Court to Act as a first or a second Court of appeal. Otherwise the distinction between appellate and revisionary jurisdiction will get obliterated. Even by the presence of the word 'propriety' it cannot mean that there could be a reappreciation of evidence. Of course, the revisional Court can come to a different conclusion but not on a reappreciation of evidence; on the contrary but confining itself to legality, regularity and propriety of the order impugned before it."
So far as the scope of Revision is concerned, there cannot be any second say. But, if the Revisional Court finds out an arbitrariness, illegality or incorrect interpretation of effect of the concerned provisions of law, then the revisional Court can draw a different conclusion. The question of law and facts involved in this case quite peculiar, as such the above decision is not applicable to these revision petitions.
35. From the discussion made above, it is clear that the judgment and decree of the courts below do not reflect the correct legal position.
C.R.P.No.3453 of 199436. In the result, this revision petition is allowed and the judgment and decree of the Courts below are set aside O.R.C. No.273 of 1987 on the file of the Additional Rent Controller, Secunderabad is allowed, but without costs.
37. However, in view of the difficulty in finding an alternative and suitable accommodation immediately, in a city like Hyderabad, it is proper to grant reasonable time for the respondents to vacate the premises and put the landlords in vacant possession of the same. Hence, time is granted to the respondents till the end of October, 1996 to vacate the premises and put the landlords in vacant possession of the same, without driving them to the Executing Court for delivery of possession. During this period, the respondents shall be regular in payment of rents, they shall not sub-lease the premises and they shall maintain the premises in good condition.
C.R.P.No.3454 of 199438. In view of allowing the CRP No.3453/94 and allowing R.C.No.273/87on the file of the Additional Rent Controller, Secunderabad, nothing deserves to be considered in this revision petition. Hence this revision petition is dismissed as infructuous.
39. There shall be no order of costs throughout.