Andhra HC (Pre-Telangana)
Narasaiah vs P. Narasimha Reddy (Died) And Ors. ... on 22 March, 1995
Equivalent citations: 1995(1)ALT734
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER B.S. Raikote, J.
1. This revision petition is directed against the judgment and order dated 16-8-1994 passed in C.M.A.No. 6 of 1990, by which the learned Subordinate Judge, Nizamabad, confirmed the judgment and order dated 13-7-1990 in R.C. No. 14 of 1984 on the file of the Rent Controller, Nizamabad. The revision petitioner is the tenant and the respondents herein are the landlords.
2. Originally, the eviction petition was filed by the landlord P. Narasimha Reddy. After his death, during the pendency of the appeal, his legal representatives Smt. P. Mangamma, his wife, and Dr. Mahipal Reddy, his adopted son, were brought on record. For the sake of convenience, the parties will be referred to as landlord and tenant, as referred to in the lower Courts.
3. The landlord filed an eviction petition against the tenant on two grounds. The first ground was that the premises in question was required bona fide, because his adopted son Dr. P. Mahipal Reddy wants to start a clinic in the suit schedule premises. The other ground was that the tenant committed wilful default in payment of rents from September, 1981 to May, 1984 amounting to Rs. 4,800/-.
4. The tenant denied these allegations of the landlord and contended that the landlord does not bona fide require the premises in question on the ground that he has no son by name Mahipal Reddy. The tenant also denied that he was a wilful defaulter in payment of rent and contended that the landlord filed O.S.No. 47/81 for eviction, as the landlord was demanding enhancement of rent to Rs. 500/- per month and he refused the same. The landlord refused to take the agreed rent. He also contended that he has paid Rs. 4,500/- to the landlord in the month of June, 1984 through a demand draft and accordingly, the tenant submitted that the eviction petition filed by the landlord was liable to be dismissed.
5. The landlord examined P.Ws. 1 to 3 and marked Exs.A-1 to A-4. The tenant examined R.Ws. 1 to 3.
6. On appreciation of the entire evidence, the Rent Controller, Nizamabad, allowed the petition filed by the landlord and directed eviction of the tenant. Being aggrieved by the said judgment and order of the Rent Controller, the tenant filed an appeal before the Subordinate Judge, Nizamabad, in C.M.A. No. 6/90, which was dismissed on 16-8-1994. Being aggrieved by the said judgments and orders of both the Courts below, it is the tenant who has filed this revision petition.
7. The learned Counsel, Mr. A. Gopal Reddy, appearing for the revision petitioner - tenant assailed the judgments and orders of both the Courts below and contended that the Courts below committed an error in passing the impugned orders and the same are liable to be set aside.
8. On the other hand, the learned Counsel Mr. S. Satyam Reddy appearing for the landlord supported the judgments and orders of both the Courts below and contended that the concurrent finding of fact recorded by the Courts below does not call for interference in this revision petition.
9. The learned Counsel for the tenant contended that since the landlord's son . Dr. P. Mahipal Reddy, (P.W.2) as per the admission in his evidence, has been running a clinic in the premises belonging to his natural father, he is not entitled to seek eviction Under Section 10 (3) (a) (iii) of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, (hereinafter called 'the Act'). He invited my attention to the relevant provisions of the Act, which reads as under:-
"10. (3) (a): A landlord may subject to the provisions of Clause (d), apply to the Constroller for an order directing the tenant to put the landlord in possession of the building -
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(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;"
Relying on this provision, he contended that the landlord is already in occupation of another non-residential building and he cannot seek eviction of the non-residential building now in the possession of the tenant.
10. In view of the adoption deed, (Ex.A-4) dated 2-6-1959, wherein it is shown that P. Mahipal Reddy, son of Raji Reddy, while he was six years old, was adopted by the landlord, the tenant as observed by the Court below, has not seriously contested the case of adoption of Dr. Mahipal Reddy by the landlord. Both the Courts below have held that Mahipal Reddy is the adopted son of landlord. The said Mahipal Reddy, who was examined as P.W.2, has stated that he passed M.B.B.S., in the year 1980 and wanted to establish a private clinic at Nizamabad in the Mulgi in question and asked the landlord to get it vacated, and accordingly, the eviction petition was filed against the tenant. In view of the pendency of the case, he started the clinic after obtaining the premises on lease at Hammalwadi, Nizamabad till 1983. In the meanwhile, he had to go to Nigeria in July 1983 and returned back to India in March, 1987. Even after his return, he found that the Mulgi was not vacated. In those circumstances, he started two bedded Nursing home at his natural father's house at Kanteshwar, Nizamabad, on the specific understanding that he would vacate the same after taking possession of the premises in question. The landlord, who was then alive and who was exaimed as P.W.1, has stated that he required the premises in question for running a clinic for his son, P.W.2, who passed M.B.B.S., and accordingly, he issued a legal notice to the tenant under Ex.A-1 for eviction of the premises in question. P.W.1 also got Ex.A.-3 notice dated 1-12-1980 issued to the tenant, but the tenant refused to receive the same and did not reply to it. P.W.1 further stated that he adopted Dr. Mahipal Reddy in the year 1959 and that he does not have any Mulgies at Nizamabad and thus, required the petition schedule premises bona fide for starting a clinic by his adopted son.
11. P.W.3 Dr. B. Prakash, another Medical Practitioner, was examined by the landlord. He deposed mat the suit mulgi was suitable for running a clinic. On the basis of this material, by holding that P.W.2 is the adopted son of the landlord, and the mulgi in question required bona fide for use and occupation by the landlord, the Rent Controller ordered eviction and the same was confirmed by the appellate Court.
12. But the learned Counsel for the petitioner tenant contended that, according to the evidence on record, when the landlord is already in occupation of a non-residential building, he cannot seek eviction of mulgi in question in view of Section 10(3) (a) (iii) of the Act. He relied upon a Full Bench decision of this Court reported in Smt. Vidya Bai and Anr. v. Shankerlal and Anr., (F.B.) in which it was held that a landlord is not entitled to eviction of the tenant of a non residential building, if he is already in occupation of a non-residential building, of which he is the owner. On the basis of this decision, he contended that the landlord is not entitled for eviction of the premises in question, which is a non-residential building, when he has already been in the occupation of another non-residential building.
13. It is to be noted at this stage that considerable law has grown with reference to Section 10 (3) of the Act. In another case, the question was, when the landlord was in possession of a non-residential building, as a tenant, and there was a threat of his eviction by his landlord, whether he would be entitled to eviction of the non-residential building, which he was seeking in the eviction petition. In view of the Full Bench Decision in Smt. Vidya Bai and Anr. v. Shankerlal and Anr., (F.B.), the same was referred to another Full Bench. The later Full Bench decision is reported in M/s. Vijayalaxmi Printing Press, through its Proprietor Anand Rao, Nizamabad v. Nandula Shankar and ORs. , . The later Full Bench distinguished the earlier Full Bench Decision in Smt. Vidya Bai's case, (F.B.) and held that when a landlord is in the occupation of a non-residential building as a tenant and when there is a threat of eviction, he can seek eviction of a non-residential building in the occupation of the tenant. The later Full Bench decision clarified the position of Law stating that only in case of such a landlord, who is in occupation of a non-residential building in the city, town, village concerned, "which is his own or to the possession of which he is entitled to whether under this Act or otherwise ", cannot seek eviction. If the landlord himself is a tenant in a non-residential building and there is a threat of eviction against him, he can seek eviction of his non-residential building in the occupation of a tenant. In fact, both these Full Bench decisions were considered by the Supreme Court in D. Devaji v. K. Sudarshana Rao, 1994 Supp. (1) SCC 729. The Supreme Court referring to both the above Full Bench Decisions of this Court, held that:-
"The object of the Act is to enable the landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or which he bona fide proposes to commence. 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 entilied 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. In Vidya Bai v. Shankerlal (1 supra) a Full Bench considered this question afresh and held that Under Section 10 (3) (a) (iii) a landlord in occupation of a non-residential building is not entitled for carrying on his business or for commencement of business to get back possession of another non-residential building in the occupation of a tenant. The bar Under Section 10 against securing eviction of the tenant of such non-residential building is absolute. 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 are not relevant. This Full Bench decision was again reconsidered by another Full Bench in Vijayalaxmi Printing Press v. Nandula Shankar (2 supra). The question therein was whether the landlord in occupation of a tenanted premises where he was threatened of ejectment under the Act is entitled to possession of his non-residential building for his self-occupation. In view of the ratio in Vidya Bai case (1 supra), it was contended that the landlord is not entitled to the possession since he has already been in possession of the tenanted premises. Rejecting the contention, the Full Bench held that when the threat of eviction looms large at the instance of his land, operation of later clause in Section 10(3) (a) (iii) is not a bar to seek eviction of the tenant. It was also held that the ratio in Vidya Bai case (1 supra) should be confined to the first case namely whether the landlord who was occupying a non-residential building of his own was not entilied to evict a tenant in occupation of another nun -residential building. It was held that it is not incumbent on a landlord to first vacate the non-residential premises in his own occupation as a condition precedent for maintaining an eviction petition in respect of his own non-residential premises in the occupation of his tenant. We agree with the ratio of both the Full Bench decisions in that behalf".
14. The learned Counsel for the petitioner tenant submits that in the instant case, no doubt, the landlord is neither the owner nor the tenant of the building, but he is a person, who is "otherwise" entitled to possession. He submitted that this case is of a third type, not the one contemplated by the earlier Full Bench Decision or by later Full Bench decision. He submitted that the landlord's son P.W.2 Dr. Mahipal Reddy being in occupation of a non-residential building, belonging to his natural father is a person, who is entitled to such possession of that building under the words "or otherwise". In other words, he submits that his possession of non-residential building belonging to his natural father, would be a possession which he is entitled to "otherwise". He emphasized the words "or otherwise".
15. Though the words "or otherwise" was considered by the later Full Bench decision (Vijayalaxmi Printing Press Case (2 supra)), the facts of that case did not specifically call for interpretation of the words "or otherwise". These words "or otherwise" did call for an interpretation in more than one decisions of the Supreme Court In Smt. Lilawati Bai v. State of Bombay, the Supreme Court while interpreting the words "or otherwise" found in Section 6 (4) (a) of the Bombay Land Requisition Act, held that:-
"The rule of edjusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and speciwords. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning".
In another decision in Kavalappara Kottarathil Kochuni @ Moopil Nayar and Ors. v. Slates of Madras & Kerala and Ors ., the Supreme Court while interpreting the words "or otherwise" held that:-
"The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified".
16. In the Law Laxican by T.P. Mukarjee & K.K. Singh, the meaning of the phrase "ejusdem generis" is stated at page 481 as under:-
"There is a distinct difference between the word 'ejusdem generis' and 'atleast analogous. The latin pharse "ejusdem genris" according to Chamber's Twentieth Century Dictionary means "of the same kind". The same dictionary defines "analogous" as "bearing same; correspondence with: or resembles to, similar in certain circumstances or relations. So, the phrase "ejusdem generis" is more restricted than the word "analogous".
In Byrne's Law Dictionary "ejusdem generis" is defined as follows:-
"It is a rule of legal construction that general words following enumeration of particulars are to have their generality limited by reference to the preceding particular enumeration and to be construed as including only all other articles of the like nature and quality". K.K.S.A.R. Firm v. Maung kye Nyun-AIR 1928 Rand.31 at 32:5 Rang 675:107 I.C 161".
17. The ordinary meaning of the principle of 'ejusdem genesis' as clarified by the above Supreme Court Judgments equally applies to the provisions in question. Under Section 10 (3) (a) (iii) of the Act, the possession of non-residential building by the landlord should be such, for which he would be entitled to under this Act "or otherwise". The words "or otherwise" further mean that he must be entitled to such possession under any other Law as an owner or a status similar to that of an owner. The meaning of the words "or otherwise should be such that it is similar to the meaning that is carried by the preceding words. In fact, the Supreme Court of India while considering the two Full Bench decisions of this Court in Vidya Bai's case and Vijayalaxmi Printing Press case (1 and 2 supra) in D. Devaji's case (3 supra) held:-
"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".
From this, it follows that the adopted son (P.W.2) is such a person who would not be entitled to the possession of the building belonging to his natural father as an owner or in any other capacity either under this Act or in any other Law for the time being in force. As per the principles of Hindu Law, the adoption has the consequence of severing all the relationship of the adopted son with his natural family and by fiction, as if he is born in the family adopted. Such an adopted son, if he is in permissive possession of the natural father of non-residential building, such possession cannot be the one for which he is entitled under the Act or under any other Law. Therefore, even though the landlord's adopted son P.W.2 is in occupation of a non-residential building, belonging to his natural father, such possession does not disentitle him to seek eviction Under Section 10 (3) (a) (iii) of the Act. It has come on records that there is an agreement or understanding between P.W.2 and his natural father that the moment he gets the possession of the premises in question, after eviction, he would vacate the same. That being gentlemen's agreement, he is bound to comply with the same. It has also come on record that when P.W.2 returned back from Nigeria he found that the eviction petition was still pending, in those circumstances, he made temporary arrangement with his natural father to start a clinic in the non-residential building belonging to his natural father. Therefore, the contention of the learned Counsel for the petitioner-tenant that the landlord is not entitled to eviction, because he is in possession of a non-residential building belonging to his natural father cannot be accepted and accordingly, the same is rejected.
18. The learned Counsel for the petitioner-tenant further submitted that from the material on record, it cannot be said that the bona fide requirement of the landlord subsisted as on the date of the filing of the petition. He submitted that in view of the decision of the Supreme Court reported P. V. Papanna v. K. Padmanabhaiah, , it is the duty of the landlord to show that such bona fide requirement subsisted even after the filing of the petition and continued to exist till the completion of the trial. He submits that P.W.2 returned to India from Nigeria in the year 1987 and started two bedded Nursing Home in the premises belonging to his natural father. Therefore, as on the date of the petition, the bona fide requirement was not subsisting. But I am of the opinion that this contention also has absolutely no substance. As observed above, from the evidenced is clear that even after his return from Nigeria, P.W.2 found that the eviction petition was still pending without resulting in eviction and hence, he made that arrangement with his natural father, till the eviction of petition schedule premises is ordered in his favour. Therefore, it is clear that the bona fide requirement subsisted even on the date of filing of the eviction petition and even if subsisted as on to-day. This contention is accordingly rejected.
19. Nextly, the learned Counsel for the petitioner-tenant contended that there is no default much less wilful default on the part of the tenant in paying the rent. He submitted that no doubt, the landlord filed O.S.No. 47 of 1981 for arrears of rent and also for recovery of possession against the tenant, but that suit was withdrawn onl2-6-1984 in view of the decision of the Supreme Court reported in Manubhai Jethalal Patel v. State of Gujarat, , and he immediately thereafter paid the entire arrears.
20. It is to be noted at this stage only that earlier, Section 32 (b) of the Act exempted the building constructed on or after 26-8-1957 from the operation of the Act. Therefore, for eviction regarding the buildings constructed after 26-8-1957, one had to approach the Civil Court. But by the said decision of the Supreme Court in Manubhai Jethalal Patel's case, , the said Section 32 (b) of the Act was struck down as being violative of Article 14 of the Constitution of India. This judgment was rendered on 26-10-1983, as a result of which from 26-10-1983, the Act became applicable even to the buildings constructed on or after 26-8-1957. In these circumstances, since the Rent Control Act became applicable to the premises in question, the landlord withdrew his suit O.S. No. 47/81 and filed the present petition for eviction on the ground of bona fide requirement and wilful default in payment of the rent.
21. The learned Counsel for the petitioner/tenant submitted that there is no wilful "default" on the part of the tenant. He" submitted that soon after the withdrawal of the suit O.S.No. 47/81, the landlord filed the eviction petition on 14-6-1984 and immediately after filing the same, he paid the entire amount due, by way of demand draft on 18-6-1984. At the most, such an action on the part of the tenant could be described as a default but not wilful default. But from the evidence on record, it is quite clear that the tenant did not pay the rent right from the month of September, 1981 to May, J984. In his evidence, R.W.1 /the tenant stated that he used to go to the house of the landlord to pay the rent and when the landlord refused to accept the same, he sent the Money Orders and when the Money Orders were refused, he did not pay any rent and he has paid the rent only after filing the eviction petition. But the tenant has not produced any material to support his case. He has not filed any money order coupons showing that the said money orders have been refused by the landlord. Under the Act the rent falls due when the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no agreement before the last date of the month next following for which rent is payable.
22. The learned Counsel for the petitioner-tenant submits that immediately after filing the eviction petition, the entire amount due has been paid to the landlord and therefore, there is no wilful default on his part. This submission of the learned Counsel for the tenant cannot be accepted, in view of the Full Bench decision (consisting of Five Judges) of this Court reported in Palleapethu Narasimha Rao and Anr. v. Kidari Radhakrishnamacharyulu and Anr., 1978(1) ALT 311. In this decision, the Full Bench of this Court held that the moment the tenant fails to pay the rent within 15 days after the expiry of the time fixed in the agreement or if there is no agreement, before the last day of the month next following that for which rent is payable, there is default and a right on the part of the landlord to have the tenant evicted arises subject only to the proviso. This Court has also held that there is nothing in this section which enables the tenant to contend that the right is lost merely because the tenant pays or tenders the rent due subsequently. This Court has further held that, the mere fact that the rent which had net been paid or tendered within fifteen days after the expiry of the time so fixed in the agreement or in the absence of such agreement before the last day of the month next following that for which rent is payable, was tendered prior to the petition, would not be an answer to an eviction petition Under Section 10 (2)(i) of the Act. Therefore, the contention of the learned Counsel for the petitioner that the tenant has deposited the entire arrears of rent on 18-6-1984 immediately after filing the eviction petition cannot be an answer. Notwithstanding such deposit made by him subsequent to the filing of the eviction petition, he is liable for eviction on the ground of wilful default in paying the rent immediately on the commencement of the Act. Therefore, this contention of the learned Counsel for the petitioner-tenant cannot be accepted.
23. However, the learned Counsel for the petitioner-tenant contended that the appellate Court was in error in holding that the tenant has not deposited the rent as required Under Section 8 of the Act, when this Act was not applicable prior to the judgment of the Supreme Court in Manubhai Jethalal Patel's case (7 supra). From the reading of the Judgment, it is clear that he trial Court did not make any such observation. But the appellate Court among other reasons, made the observation, perhaps under mistaken impression. The fact remains that the tenant has not proved by any document either by M.O. coupons or otherwise to show that the landlord at any time refused to accept the rent. The finding of fact recorded by both the Courts below, that the tenant was a wilful defaulter, it is not possible for this Court to reassess the entire evidence and come to a different conclusion. Therefore, this contention cannot be accepted.
24. The learned Counsel for the tenant further submitted that the Rent Controller has to quantify the amount of arrears of rent. In the instant case, it is not in dispute that Rs. 4,500/- was the arrears of rent due as on the date of filing of the petition. It is the specific case of the tenant that at the rate of Rs. 50/- per month, he deposited the said arrears of rent fallen due from September, 1981 to May, 1984 at Rs. 4,500/-. That is the quantified arrears of rent in the case. Therefore, even this contention of the learned Counsel for the petitioner-tenant merits only for rejection.
25. For the foregoing reasons, I do not think it necessary to interfere with the orders of the Courts below. Therefore, the revision fails and it is accordingly dismissed, but in the circumstances of the case, without costs.
26. By the order of the Rent Controller, the tenant was given three months time to vacate the premises in question and by the appellate Court, he was given two months more from the date of the Judgment of the appellate Court i.e., dated 6-8-1994. Having regard to the circumstances of the case, I think that it would be in the interest of justice and equity, to grant 3 months time, from today, for vacating the premises in question.