Andhra HC (Pre-Telangana)
Ali Bin Mohammed (Died) By Lrs. vs Khaja Moinuddin (Died) By Lrs. on 27 October, 2006
Equivalent citations: 2007(1)ALD438, 2007(1)ALT424
ORDER V. Eswaraiah, J.
1. This civil revision petition is directed against the judgment dated 20.3.2002 passed in R.A. No. 72 of 1997 by the Chief Judge, City Small Causes Court, Hyderabad.
2. The first petitioner is the landlord and the first respondent is the tenant. The landlord filed R.C. No. 831 of 1994 on the file of the I Additional Rent Controller, Hyderabad, under Sections 10(2)(iii) and 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act') seeking eviction of the tenant in respect of the premises bearing No. 4-1-613 situated at Troop Bazar, Hyderabad on the ground that the tenant committed acts of waste and that the premises is required for the personal occupation for the purpose of commencing business by the second son of the landlord. The learned Rent Controller dismissed the eviction petition by order dated 17.1.1997. Aggrieved by the said order the landlord preferred an appeal in R.A. No. 72 of 1997. During the pendency of the appeal the first tenant died and his legal representatives were brought on record as respondents 2 to 6 and the rent appellate Court dismissed the appeal by judgment dated 20.3.2002. Aggrieved by the said judgment this revision petition has been filed. During the pendency of the revision petition the landlord died and his legal representatives were brought on record as petitioners 2 to 5, who are his wife, two daughters and son. The fourth petitioner-Jaffar Bin Ali is the second son. The elder son of the landlord is not brought on record, as he may not be entitled to any right in the subject-matter of the schedule property.
3. The question that arises for consideration are as to whether the said premises is required for the personal occupation of the landlord for the purpose of commencing business by his second son. Admittedly the petition filed under Section 10(3)(a)(iii) of the Act does not specifically mention as to whether the said premises are required either for the purpose of carrying on the business which is carried on by his second son on the date of the petition or only for the purpose of commencing of business by the landlord but the averments of the eviction petition go to show that the second son of the landlord requires the said premises for the purpose of commencing business. Therefore, the petition is filed under Section 10(3)(a)(iii)(b) of the Act. There is no dispute with regard to the relationship of the landlord and the tenant and the respondent is the tenant in respect of the said mulgi bearing No. 4-1-613 situated at Troop Bazar.
4. It is stated in the eviction petition that the landlord is the owner of the owner of the double storied building bearing No. 4-1-613, Troop Bazar, Hyderabad and the respondent is the tenant in respect of the mulgi bearing No. 4-1-613 on a monthly rent of Rs.350/- and originally it was leased out in 1975 and the monthly rent was enhanced from time to time. It is stated that the said premises is a non-residential premises but the tenant has fixed two show cases admeasuring 4' x 3' in the walls reducing the thickness of the walls damaging the premises and therefore, the tenant is liable to be evicted under Section 10(2)(iii) of the Act for committing acts of waste. Originally the petition was filed stating that the second son of the landlord passed intermediate examination in the year 1993 and he got experience in the disposal of electrical goods i.e. purchasing and selling of tubes, fans and bulbs and the said mulgi is required for the purpose of carrying on the business by his second son and it is further stated that his son is not having any other vacant mulgi in the twin cities. Therefore, the double storied mulgi is bona fidely required to his son, who is residing with the landlord, for carrying on business. The eviction petition was filed on 30.12.1994. Thereafter, an application in LA. No. 176 of 1996, filed to amend the petition stating that the second son viz., Jaffar Bin Ali, requires the said premises, was allowed on 4.7.1996. Therefore, the tenant is liable to be evicted under Section 10(3)(a)(iii) of the Act.
5. The tenant filed a counter stating that the landlord is having another mulgi abutting to the petition schedule mulgi bearing No. 4-1-613 and the landlord is also the owner of house bearing No. 23-3-469 and another two mulgies bearing Nos.23-3-467 and 23-3-468 situated at Sultan Shahi, Hyderabad. The family of the petitioner is residing in the said House No. 23-3-469 and the aforesaid two mulgies are vacant and in physical possession of the landlord. Therefore, the eviction petition is not maintainable.
6. It is further stated that, in fact, the landlord earlier filed an eviction petition in R.C. No. 19 of 1989 against another tenant-Shri Afsar in the Court of the II Additional Rent Controller, Hyderabad seeking his eviction from the adjacent mulgi bearing No. 4-1-613/1 on the ground that the said premises is required for the purpose of running a Typewriting and Stationery Shop by his son - Umar Ali and the said petition was dismissed on 25.3.1994. In fact, the said Umar Ali, an Oil Engine Mechanic, left India and doing a job in Saudi Arabia and earning more than Rs. 15,000/- per month. Against the dismissal of the said eviction petition the landlord filed an appeal in R.A. No. 283 of 1994 on the file of Chief Judge, City Small Causes Court, Hyderabad, which is pending. It is further stated that the second son - Jaffar Bin Ali - of the landlord has no experience in disposing of electrical goods i.e. purchasing and selling tubes, fans and bulbs and that the suit mulgi is required for personal requirement i.e. for opening of the shop, is not bona fide and genuine, as the second son of the landlord is a student studying B.Com. The elder brother of the second son of the landlord is doing job at Abu Dhabi and earning a monthly income of Rs. 15,000/-and he is trying for a job visa for his younger brother.
7. The landlord, examined as P.W.I, stated that the premises was originally leased out on a monthly rent of Rs. 110/- in 1975 and it was enhanced from time to time and the present rent is Rs.350/-. The tenant without his permission fixed two show cases admeasuring 4' x 3' developing cracks in the walls. It is stated that his second son passed intermediate course in the year 1993 and he is unemployed without any avocation and he got sufficient experience in electrical business and he is intending to start the business in the petition schedule mulgi. Accordingly, he got issued a notice dated 26.11.1994 for which a reply has been given. It is stated that he is not aware whether his elder son went to Abu Dhabi. He admitted that he owns the adjacent Mulgi No. 4-1-613/1 and possessing of the said non-residential premises is not mentioned in the eviction petition, which was drafted on his instructions. The suggestion that he had purposely not mentioned about his owning the adjacent mulgi with a view to mislead the Court was denied. It is further admitted in the cross-examination that he owns a building bearing Nos.23-3-469, 467 and 468 and he filed eviction petition against his tenant Eswarji seeking his eviction from the Mulgi No. 23-3-467, Bakshi Bazar, Sultan Shahi, Hyderabad in R.C.C. No. 188 of 1978 and Ex.B2 is the certified copy of the eviction petition and it was allowed in the year 1979. Ex.B3 is the certified copy of the eviction order in the said RCC and Ex.B4 is the certified copy of the plan of the entire building bearing Nos.23-3-469, 467 and 468. He took possession of the premises in R.C.C. No. 188 of 1978. Another tenant was there in Mulgi No. 23-3-467 and he vacated the mulgi in the year 1982 and both the mulgies are in his possession. It is also admitted that the eviction petition in respect of the tenant in the adjacent Mulgi No. 4-1-613/1 in R.C.C. No. 19 of 1989 filed on the ground of personal requirement of his elder son was dismissed. The suggestion that his elder son was earning Rs. 15,000/- per month by doing a job at Abu Dhabi was denied. It is further stated that he converted the two mulgies into residential portions due to lack of accommodation in 1982. It is stated that his father purchased the said two mulgies and the house and the area of house is 90 sq. yards but not 106 sq. yards. It is also admitted that he was a Government Servant when he was examined on 15.2.1996 and he was working at Warangal. The suggestion that his elder son was doing job in Gulf countries was denied.
8. The second son of the landlord -Jaffar Ali Bin, examined as P.W.2 stated that he has got experience in electrical goods business and he passed Intermediate in the year 1993 and he appeared for B.Com examination in the year 1995.
9. The tenant, examined as R.W.1, stated that the tenancy commenced in 1975 on a monthly rent of Rs. 110/-, which was enhanced from time to time, and the present rent is Rs.350/-. It is stated that the landlord owns another mulgi adjacent to the petition schedule mulgi and the landlord filed an eviction petition seeking eviction of the tenant viz., Afsar, of the adjacent mulgi, which was dismissed and the appeal filed against the said dismissal is pending, which fact is suppressed by the landlord in the eviction petition. The landlord owns another two mulgies and a residential house at Bakshi Bazar, Sultan Shahi, Hyderabad and inl978 the landlord filed eviction petitions against tenants situated in the said mulgies and the eviction petitions were allowed. The landlord has not stated in the eviction petition as to for whom the petition schedule premises is required for running a business and it is not correct to state that the premises is required by his second son to run business as he is a B.Com student and the suggestion that the second son of the landlord gained experience in electrical goods business was denied. In the cross-examination that the name of the second son of the landlord was amended as per orders dated 4.7.1996 in I.A. No. 176 of 1996. The suggestion that he owned another mulgi opposite to the petition schedule premises was denied. The suggestion that there were show-cases on either side of the petition schedule premises was denied.
10. Insofar as the acts of waste is concerned both the Courts below held that the tenant has been carrying on the business from 1975 and it is not established as to how the acts of waste have been committed. Therefore, the learned Counsel for the petitioner has rightly not pressed the said ground but vehemently stressed the ground with regard to personal requirement of the said premises for the purpose of carrying on business by the second son of the landlord.
11. Under Section 10(3)(a)(iii) of the Act the condition prerequisite entitling the landlord to seek eviction of the tenant is that the landlord shall not be in occupation of a non-residential building in the city, town or village concerned, which is his own or to the possession of which he is entitled under the Act. Admittedly, in the instant case, the landlord is the owner of the petition schedule mulgi, the adjacent mulgi and two other mulgies bearing Nos.23-3-467 and 468 situated at Sultan Shahi, Hyderabad, wherein the tenants have been evicted. The suppression of those facts in the eviction petition is material, as it cannot be said that the landlord is not having any other non-residential building in the city. The lapses on the part of the landlord have been tried to be explained in the oral deposition but the facts remains that the landlord is the owner of the adjacent mulgi and two other mulgies wherein the tenants have been evicted. However, now that the original landlord died and admittedly as his second son has a portion of the adjacent mulgi and other two mulgies where he is residing, it cannot be said that the landlord is not having any other non-residential building apart from the mulgi in question.
12. In view of the aforesaid facts and circumstances of the case, I am of the opinion that there is no illegality, irregularity or impropriety in the order of the learned Rent Controller as confirmed by the rent appellate Court.
13. The civil revision petition is accordingly dismissed. There shall be no order as to costs.