Andhra HC (Pre-Telangana)
B. Ataullah vs K. Nisar Ahmed on 27 July, 2001
Equivalent citations: 2001(5)ALD517, 2001(5)ALT103
ORDER
1. This civil revision petition is directed against an order made in CMA No. 25 of 1997 dated 7-12-1998 on the file of the Senior Civil Judge, Adoni reversing the order made in RCC No.8 of 1996 on the file of the Principal District Munsif-cum-Rent Controller, Adoni.
2. The revision petitioner is the landlord and the respondent is the tenant. For the purpose of convenience the parties will be referred to as landlord and tenant hereafter.
3. The landlord filed RCC No.8 of 1996 on the file of the Principal District Munsif-cum-Rent Controller, Adoni claiming the relief of eviction of the tenant under Section 10(3)(a)(iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the Rent Control Act") on the ground of bona fide requirement. The dispute relates to a non-residential premises in Adoni town. The case of the landlord is that he is a retired Municipal Teacher and he had retired from service in the year 1992 and he is unable to maintain himself, his son, daughters-in-law, sisters and other members of the family with the meagre pension amount and with a view to enhance the income for the sake of his family by doing business in cutlery-cum-electrical goods in the premises let out to the tenant, he bona fide requires the premises for running business. The tenant had filed a detailed counter and had denied all the allegations. The tenant had taken a specific stand that the dispute is relating to the unreasonable demand made by the landlord for enhancement of rent and that is the reason why though the landlord does not bona fide require the premises he thought of the present rent control case. The parties had let in evidence and on the side of the landlord PW1 to PW4 were examined and Exs. A1 and A2 were marked and on behalf of the tenant he examined himself as RW1 and Ex.B1 was marked.
4. The learned Rent Controller, after appreciating the oral and documentary evidence, came to the conclusion that the landlord requires the premises bona fide and had ordered eviction by order dated 17-11-1997. The tenant aggrieved by the same filed CMA No.25 of 1997 on the file of the Senior Civil Judge, Adoni and the appellate authority by order dated 7-12-1998 had reversed the order of the learned Principal District Munsif-Rent Controller. Aggrieved by the same the landlord had filed the present civil revision petition.
5. Sri K. Sitaram, learned Counsel representing the landlord-revision petitioner had contended that the bona fide requirement of the landlord relating to non-residential premises had been clearly established by both oral and documentary evidence and the Court of first instance had recorded clear findings and after a detailed discussion had arrived at a conclusion that the landlord bona fide requires the premises. The learned Counsel also had further contended that the appellate authority reversed the well considered findings of the Court of first instance mainly on two grounds that the requirement of the landlord is not bona fide and this litigation was thought of in view of his demand relating to enhancement of rent that too periodically and the second ground on which the order of the learned Rent Controller was reversed by the appellate authority was comparative hardship. The learned Counsel had further contended that in the case of bona fide requirement the question of comparative hardship and its consideration does not arise at all and the appellate authority had totally erred in giving such a finding. The learned Counsel had placed reliance on the decision reported in S. Gopinath Pillai v. K. Venkateswarlu, . The learned Counsel also had drawn my attention to the evidence of PWs.2 and 3 who are the mediators, Ex.A1 notice and Ex.A2 reply notice and also had drawn my attention to the portions of the evidence which go to show that PWs.2 and 3 who are related to the tenant are not having any enmity with the tenant. The learned Counsel also had explained the evidence of PW4 and also Ex.B1 the invitation card.
6. Sri Somakonda Reddy, learned Counsel representing the tenant had contended that in the notice Ex.A1 and also in the pleading the bona fide requirement as now contended by the landlord revision petitioner had not been pleaded and any amount of evidence will not cure the defect. Further, the learned Counsel had contended that the requirement of the father will not amount to the requirement of the son. It is also pointed out that the landlord retired in the year 1992 and kept quiet for sufficiently a long period of time upto 1996 and the learned Counsel had drawn my attention to the portions of the evidence of PW1 and also RW1 and had pointed out several aspects which clearly go to show that the conduct of the landlord is definitely artificial. The learned Counsel also had drawn my attention to the aspect that inasmuch as a demand was being made for repeated enhancement of rent by the landlord this problem arose. As far as accommodating the brother in the adjacent shop, the learned Counsel contended that it is only a make believe story by the landlord for the purpose of getting the tenant evicted. Apart from drawing my attention to the relevant portions of the order of the appellate authority, the learned Counsel also had pointed out that Ex.B1 document invitation card is binding on the landlord also and it shows that PW4 is an employee and this aspect clearly belies the story of the landlord relating to bona fide requirement. Further, the learned Counsel also had contended that all these questions of fact had been well discussed by the appellate authority and the scope of the revision under Section 22 of the Rent Control Act is very limited and hence this revisional Court need not interfere with the well considered findings of fact arrived at by the appellate authority.
7. The case of the landlord, as can be seen from the material on record, is that the landlord wants to run an electrical business in the non-residential premises and except this non-residential premises there is no other premises available to him. It is also his specific case that he retired in the year 1992 and a large family is dependent on him and he wants to improve his income for the sake of his family. In nutshell what the landlord intends to say is that he is interested in commencing business like electrical goods in the schedule premises for the sake of raising the income of his family. In the light of this stand taken by the landlord-revision petitioner the evidence available on record has to be appreciated. Merely because in Ex.A1 notice and in the pleading certain details are not mentioned that does not mean that the bona fide requirement of the landlord as pleaded and also as established by the evidence of PW1 supported by the evidence of PWs.2 to 4 can be reversed by the appellate authority. Hence the finding of the appellate authority on this aspect, in my considered opinion, is erroneous. Apart from this, it is relevant to appreciate certain portions of the evidence of PW1 and also RW1 in this regard. PW1 in his cross-examination stated as follows:
"I decided to open a shop in electrical goods in the petition property. Immediately I requested the respondent to vacate the shop. He said that he would not vacate. Since then I have been repeatedly requesting the respondent to vacate the shop. I never asked the respondent to enhance the rent. The present rent is Rs. 900/-. Earlier it was Rs. 600/- p.m. In June, 1996 I enhanced the rent from Rs. 600/- to Rs. 900/-. The witness says I did not enhance the rent. The respondent tendering Rs. 900/- p.m. voluntarily to induce me to continue him as tenant. I reluctantly accepted Rs. 900/- p.m., as rent. I did not give any extension of time having received rent Rs. 900/- p.m. It is true that one month of receiving of Rs. 900/- rent I caused notice in Ex.A1. I got mentioned in my notice that the respondent tendered rent at Rs. 900/- and I reluctantly accepted it. The same thing I mentioned in my petition. It is not true to say that the respondent did not voluntarily pay Rs. 900/- p.m. as rent but I made him to pay Rs. 0-- p.m., as rent. It is not true to say that I demanded the respondent to enhance the rent every year by Rs. 200/-time. As pension I will get Rs. 3,400/-including DA. I got PF of Rs. 16,000/-, gratuity Rs. 50,000/-. I did not get any other amount as terminal benefit. With the amount I received after retirement, I performed the marriage of my two sons. The witness says I am having some more amount. I am having Rs. 50,000/-. The amount is kept in my house in a safe from the date of my retirement. I have been keeping that amount with me in the safe. I did not deposit the amount in the bank as right from the date of retirement. I was anticipating that the respondent would vacate the premises and I should start business immediately".
The evidence of PWs.2 and 3 and also his son PW4 amply supports this evidence of PW1. As against this evidence the evidence of RW1 alone is available and it is relevant to note the relevant portion of the evidence of RW1, which reads as follows:
"I do not know whether PW4 is a casual worker on daily wages. I did not enquire the particulars of employment of the other son of petitioner. I heard about it. I do not know the name of company. I do not know how much he is paid. It is not true to say that other son of the petitioner is not working in any agarbatti company. I do not know whether the petitioner and his son are living jointly and the petitioner maintains the entire family. The petitioner's wife died. It is not true to say that when the petitioner requested me to vacate I voluntarily enhanced rent from Rs. 600/-to Rs. 900/- to see that he should not come again with a demand of eviction. I did not give any notice to petitioner after the alleged demand of enhancement of rent every year by Rs. 200/-. It is not true to say that the petitioner and his son required the premises for personal use and occupation for opening a shop".
Thus, even from the evidence of RW1 several details about PW4 are not known to RW1 and in the light of this evidence it cannot be said that the requirement is not bona fide.
8. Apart from this, from the material available on record, the following relevant aspects are essential to be considered.
"(a) that the petitioner is a retired teacher and has no other non-residential building except the petition schedule shop;
(b) that the petitioner is not doing any work or business and one of his sons is mentally retailed;
(c) that one year back, prior to appeal his adjacent shop fell vacant, but the respondent did not join, and got his brother there;
(d) that he does not know the alleged service particulars of his Engineer son;
(e) that he knows nothing whether his sons are employed;
(f) that he did not give any notice to the petitioner for the alleged demand of enhanced rent every year by Rs. 200/-".
Further, relating to the theory of the tenant that the landlord thought of this eviction petition only because his demand for enhanced rent repeatedly was not acceded to, also cannot be believed since in the evidence of PW1 he had categorically stated that it is a voluntary payment inspite of his repeated requests to the tenant to vacate the premises. In the light of this background, the ground of bona fide requirement of the landlord should be taken as a ground taken by the revision petitioner relating to his family and with a view to improve the income of the family as such. In Mangilal Mathi v. Kishen Rao, 1972 (2) APLJ 8, it is held as follows:
"In order to show the bona fides of the proposal of the landlord to commence the business it is not necessary that he should have made all the necessary arrangements. Unless the premises itself is available for occupation, the landlord would not be in a position to make any other preparation like obtaining the licence or placing orders for the supply of goods in fact make any other preparation for commencing the business.
The claim of bona fides when asserted by the landlord can be demolished by the tenant by proving some positive acts like letting out the premises in the occupation of the landlord subsequently or pressing the tenant for enhancement of the rent for the premises after he had claimed eviction or the like. When these facts are not established it cannot be said that the landlord is not acting bona fide".
In Venkati Penchalaiah v. Md. Muniruddin, 1980 (1) An. WR 164, it is held as follows:
"A mere assertion on the part, of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of commencing a new business is not enough and decisive. The truth of the assertion and its bona fide character must be established to the satisfaction of the Court. The bona fide requirement need not be of absolute necessity. It is enough if the requirement is reasonable. There is no yardstick for measuring the genuineness of the plea of bona fide requirement. Each case necessarily depends upon its own facts. What is necessary for the Court to determine is whether the landlord genuinely needs the premises for commencing a new business and whether he makes the demand honestly and in good faith. In other words, the landlord should not be actuated by any oblique motive of realising some other extraneous purpose. The Court must therefore be necessarily satisfied in the first instance as to the absence of any oblique motive or mala fide on the part of the landlord before it is satisfied as to the positive existence of bona fide requirement of the premises by the landlord. The claim of bona fides asserted by the landlord can be demolished by the tenant by proving some positive facts like letting out some other premises in the occupation of the landlord subsequently or pressing the tenant for enhancement of the rent for the premises in question. Once the Court is satisfied that the landlord requires the premises bona fide for starting a new business. It is not for the Court to probe into the reasons that prompted the landlord for choosing that particular business or question the prudence or soundness of the proposed venture."
There is no evidence to conclude that the petitioner has any oblique motive or mala fides in seeking eviction of the respondent from the premises. PWs. 1 and 4 have categorically deposed that they want to occupy the premises to start business in electrical goods and their requirement is true and bona fide. In Shaik Pedda Moulali v. Srerama Murthy, 1973 APHN 223, it is held as follows:
"Merely because the tenant had been there for a long time and he built up good will and business, it does not mean he can stay there for all time. He can seek alternative accommodation and has to give place to the landlord if his need is genuine and bona fide.
As long as private ownership is recognised by law and the requirements of the landlord are bona fide and is also reasonable, and it is not also actuated by any oblique or mala fide motive, his claim should prevail, provided that the disadvantage caused to the tenant docs not far outweigh the advantage caused to the landlord".
In Mohd. Mooruddin v. A. Yadagiri, 1982 (2) ALT 154, it was held as follows:
"Even in case where there are no lapses on the part of the tenant, still the necessity of the landlord also has been taken care of and in a situation where the landlord establishes the requirement as bona fide for his personal occupation of business the necessity or the inconvenience of the tenant is subordinated to the bona fide requirement of the landlord. In a case where the eviction is sought for on the ground of bona fide requirement and if all the ingredients of bona fide requirement are satisfied the ground of hardship to the tenant does not assume any significant dimension. Even in a situation where there is great hardship to the tenant and equally the bona fide requirement has been proved satisfactorily, the tilt should be in favour of the landlord".
It is no doubt true that the revisional powers, as pointed out by the learned Counsel for the respondent, are not as wide as appellate powers. But at the same time in a case of this nature where a well-considered order of the Court of first instance had been reversed by the appellate authority and where there is overwhelming evidence in favour of the landlord-revision petitioner, in-my considered opinion, it is a fit case for interference under Section 22 of the Rent Control Act. In fact, as far as Ex.B1 and also the evidence of PW1 and PW4 in this regard is concerned, it had been well explained and in the light of the admissions made by RW1 relating to the employment or otherwise of PW4, it cannot be said that the landlord does not require the schedule premises bona fide.
9. Coming to the question of comparative hardship in S. Gopinath Pillai's case (supra) it was held that the consideration of relative hardship of landlord and tenant, which is a mandatory requirement when demised premises is required as additional accommodation, is not relevant consideration to decide whether the requirement of landlord is bona fide for the proposed business under Section 10(3)(a)(iii) (b) of the Rent Control Act. Sri Somakonda Reddy, learned Counsel for the tenant also had not disputed this proposition of law.
10. For the foregoing reasons, I am of the considered opinion that the impugned order of the appellate authority dated 7-12-1998 in CMA No.25 of 1997 on the file of the Senior Civil Judge, Adoni is not sustainable in law and is liable to be set aside and the order of the learned Principal District Munsif-cum-Rent Controller in RCC No.8 of 1996, dated 17-11-1997 is liable to be restored. Accordingly the civil revision petition is allowed, but in the circumstances without costs.