Andhra HC (Pre-Telangana)
Kanchumanu Venkateswara Rao, S/O Late ... vs Chukka Raja Reddy S/O Apparao Opp: S.P. ... on 29 December, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
CIVIL REVISION PETITION No. 1598 of 2014
29-12-2014
Kanchumanu Venkateswara Rao, S/o late Appa Rao Venkata Durga Auto Engineering
Works D.No.19-1-109/A, Vallabai Street, Kakinada,East Godavari District
Petitioner
Chukka Raja Reddy S/o Apparao Opp: S.P. office, Kakinada East Godavari
District and another.. Respondents
Counsel for the petitioners:M/s S. Subba Reddy
Counsel for the respondents:Sri A.S.C. Bose
<GIST:
>HEAD NOTE:
? Cases referred
1. 2012 (1) ALT 384
2. AIR 2001 SC 803
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
CIVIL REVISION PETITION NO. 1598 of 2014
ORDER:
This is a revision preferred by a tenant of non-residential premises located at Vallabai Street, Kakinada, East Godavari District, under Section 22 of the A.P. Buildings (Lease Rent & Eviction) Control Act, 1960, (henceforth referred to as Rent Act), praying to revise the order of eviction passed by the learned Principal Senior Civil Judge-cum-Rent Control Appellate Authority on 06.03.2014 in R.C.A.No.4 of 2012, preferred by the respondents.
The facts which have emerged are:
1. The father of the petitioner herein has taken on monthly rent the scheduled premises in the year 1974 from one Sri Sunkara Venkateswarlu, the grandfather of the second respondent herein.
2. The petitioners father established a lathe machine and was carrying on works thereon in the name of Vijaya Durga Auto Engineering Works. After his death, the petitioner continued to be a tenant and carried on the same business and is currently paying a monthly rent of Rs.1,000/-.
3. It is the case of the petitioner herein that sometime during September, 2005, he was asked to enhance the monthly rent from Rs.1,000/- to Rs.2,000/- and the advance from Rs.10,000/- to Rs.15,000/-, failing payment of which he was threatened by the respondent that he will be forcefully evicted there from.
In those circumstances, the petitioner herein filed civil suit O.S.No.1339 of 2005 on the file of the I Additional Junior Civil Judges Court, Kakinada, seeking permanent injunction not to interfere with his possession and not to evict him there from except in due process of law. It is alleged that as a counter blast, the respondent-landlords have filed the Rent Control Case No.16 of 2009 seeking eviction on three grounds:-
1. Willful default in payment of rent
2. Bonafidee requirement of the premises by the landlords and
3. Due to the acts of waste committed by the petitioner herein.
On behalf of the petitioners/respondents herein, they examined themselves as P.W.Nos.1 & 2 and they also got examined another tenant of one of the shop rooms as P.W.3. They got marked Exs.A-1 to A-10. The petitioner herein examined himself as R.W-1 and got examined one of the relatives of the respondents as R.W.-2. He has not filed any documentary evidence. The Rent Controller dismissed the application on the ground that the respondent-landlords have not let in any evidence as to the nature of business proposed to be commenced by them and they have also not demonstrated as to how the portion that fell vacant during the course of the proceedings was not suitable to carry on the proposed business. Sofaras the damage caused to the flooring of the scheduled shop, since the landlords have not got any expert appointed for ascertaining as to whether the flooring of the shop is damaged because of usage of the lathe machine installed in the schedule premises, the rent control case is dismissed.
The respondent-landlords have preferred Rent Control Appeal No.4 of 2012 before the Appellate Authority. The Appellate Authority has returned a finding that it is for the landlords to choose that particular shop room which is more convenient for them to set up their business and they are not required to set out in detail as to where from they would get the necessary capital input for starting the business or as to the nature of business they intend to carry on. Further, the learned Appellate Court found that, though Ex.A-8 clearly disclosed that the petitioner tenant was very irregular in tendering rent, however, he has only taken the same for purpose of examining the conduct of the petitioner herein, as Ex.A-8 disclosed that the petitioner herein tendered rents due for December, 2004 and January, 2005 February, March, April and May, 2005 at one go. However, the Appellate Court, based upon Ex.A-10 had found that there was damage caused to the flooring of the petition scheduled premises and the petitioner-tenant never moved the Court seeking permission for undertaking repairs thereof. Most importantly, the learned Appellate Court has recorded that the petitioner herein who examined himself as R.W.1, during the course of cross- examination has deposed that he was having his own house in the first street of Sambamurthy Nagar in Kakinada and therefore, he could have carried on his business even from that premises. The Appellate Court therefore allowed the appeal.
Heard Sri S. Subba Reddy, learned counsel for the petitioner, who would contend that the proceedings under the Rent Control Act, for eviction of the petitioner have been initiated as a counter blast to the civil suit filed by the petitioner herein. Further, both Courts have not returned any specific finding that the petitioner has committed willful default in tendering the monthly rent. The landlords have not established the bonafinde requirement of the premises for them to carry on any business there from. It is also contended that the equities have not been properly worked out, inasmuch as, the hardship that is likely to be caused to the petitioner herein, if he is evicted would fairly outweigh that of the respondent-landlords. Sri S. Subba Reddy would further contend that the present petition has been instituted under Section 10(2) (1) of the rent act and hence the eviction petition should not have been ordered by the Appellate Court. He placed strong reliance upon the judgment rendered by this Court in Rayapuraju Venkatarama Rao (died per LRs) v. Gangadharan Nair (Gangadharan Nambiar) .
The undisputed facts that are noticed reflect that, the father of the petitioner herein has taken the scheduled premises for carrying on business in lathe works sometime during the year 1974 from the grandfather of the second respondent herein. After the death of his father, the petitioner was carrying on the business in lathe works. Thus, for four decades, the said business is carried on from the scheduled premises. It was further not in dispute that the petitioner herein instituted Civil Suit O.S.No.1339 of 2005 seeking permanent injunction and that suit was subsequently dismissed. The present rent control proceedings have been initiated sometime in February 2009, that is nearly after 4 years time. Therefore, it would be difficult to assume that the present rent control proceedings have been initiated as a counter blast to the civil suit which the petitioner has instituted seeking permanent injunction.
Ex.A-8 has clearly brought out the fallacy behind the assertion of the petitioner that he was very regular in payment of rents. However, the learned Rent Control Appellate Court has rightly relied upon Ex.A-8 only to demonstrate the conduct of the petitioner and beyond that, the default committed by the petitioner, as evidenced by Ex.A-8 being much prior in point of time to the institution of the present eviction proceedings in February, 2009, has not been relied on any further.
So far as the finding of the Appellate Court that Ex.A-10 clearly brings out the damage caused to the flooring of the scheduled premises is a finding of fact. The learned Rent Controller preferred to ignore Ex.A-10 on the ground that the landlords have not taken out any commission of an expert to examine the extent of damage caused to the flooring of the scheduled premises. The reasoning adopted in this regard by the Rent Controller is hardly satisfactory. If, damage caused to the scheduled premises is otherwise visible, the burden lies on the person disputing it to lead contra evidence. Therefore, the default, if any, in not taking out any commission is attributable to the petitioner herein, but not to the respondent-landlords. I have, therefore, no hesitation to confirm the finding of the Appellate Court based on Ex.A-10 that damage has been caused to the flooring of the scheduled premises and hence, the petitioner has committed acts of waste.
So far as the bonafide requirement of the respondent- landlords are concerned, documentary evidence has been brought on record in the form of Exs.A-4, A-5 & A-6 which demonstrate that the first respondent herein has acquired a technical Diploma in Computer Systems Management. Ex.A-8 vouches for the educational background of the second petitioner herein who has also deposed that she has acquired technical qualification of typewriting by higher grade in three different languages and that she has also obtained a certificate of having passed the Hindi Pracharak Course and that she has worked for a while as a teacher and that since she has suffered a set-back in her health, she resigned to the said post and she wanted to establish a business of her own. D.W.2 has been examined by the petitioner herein to discredit that assertion and he deposed that the family ladies would not carry on business. I am afraid, it does not lie in the mouth of the petitioner or for that matter that of D.W.2 to say that the second petitioner/respondent land lady cannot carry on any business. It is time that one should realize that the Indian women are asserting their right to lead a life of dignity on their own completely without sacrificing their family interests, by undertaking suitable business activity. Therefore, it is certainly not open to the petitioner herein to raise the slightest of doubt with regard to the capability of the second petitioner herein to enter upon any such entrepreneurship. That, in my opinion, is not open for debate. Therefore, the finding of the Appellate Court that the bonafide requirement of the scheduled premises by the respondent-landlords has to be examined independently.
It is never in doubt that the first respondent herein has acquired technical Diploma in Computer Systems Management. Therefore, if he wants to establish a business of his own at the scheduled premises, he is not required to demonstrate anything more. It is not for the tenant to demand the landlords to disclose the nature of business that they would intend to carry on and as to whether it requires the petition scheduled premises or any other premises would also be equally suitable or not. It is a choice of the landlord. He has a right to exercise an option and choose in his view the best premises suitable for carrying on such business.
The fact that some other premises has fallen vacant during the pendency of the rent control proceedings and that was allowed to be leased out again in favour of some other third parties is not a factor to be taken into account for deciding the present proceedings. If, such factors are to be taken into consideration, the subsequent developments alone would be tilting the entire issue instead of the merits of the petition concerned.
In Gaya Prasad v. Sh. Pradeep Srivastava , the Supreme Court set out the principle as under:
10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists
15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused.
Sri S. Subba Reddy, learned counsel for the petitioner has placed reliance upon the judgment rendered by this Court in Rayapuraju Venkatarama Rao (died per LRs) v. Gangadharan Nair (Gangadharan Nambiar), in support of his plea that where the landlord is owning more than one premises, he should specifically set out as to why the other premises is not suitable to him and that the rent controller is required to reject the application if he is satisfied that the hardship which might be caused to him by granting eviction will outweigh the advantage to the landlord and therefore the Court below ought not have allowed the appeal of the respondents.
It will be appropriate to notice that the Appellate Court has adverted to the admission of the petitioner herein during his cross- examination that he owns a building of his own in the first street of Sambamurthy Nagar, Kakinada. Therefore, burden lies on him to establish that the said premises is not suitable for him to carry on the lathe business there from. This apart, if the petitioner sought for a relative assessment of hardship between himself and that of the respondents, he ought to have let in evidence to demonstrate that the special or specific requirements needed for carrying on lathe business and as to how such special requirements cannot be easily obtained in Kakinada City at any other premises. Kakinada City is a fairly industrialized city. It is a port city and consequently, good number of premises are used for non-residential purposes. It is, therefore, for the petitioner to have demonstrated the peculiar hardships which he will have to face, if he was ordered to be evicted there from. Appropriate evidence ought to have been led in for one to record any finding of fact. In the absence of any such material, it will not be proper for this Court to entertain any such claim for the first time in this Court. There is no evidence available on record for noticing any specific or peculiar hardships which the petitioner will have to face in case of his eviction from the premises in question.
More than anything else, the premises in question is leased out to his father initially and to the petitioner herein and they had been carrying the business for 40 years there from. Therefore, in the face of the requirement of the respondents, the petitioner herein has been rightly ordered to be evicted by the Appellate Court from the scheduled premises.
Accordingly, the civil revision petition is dismissed. Consequently, miscellaneous applications pending shall also stand dismissed. No costs.
________________________________ NOOTY RAMAMOHANA RAO, J 27th December, 2014