Andhra HC (Pre-Telangana)
S. Basha vs D.B. Indiramma on 27 October, 1999
Equivalent citations: 2000(1)ALD551
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. This is a revision filed by the tenant questioning the concurrentorders of eviction passed against him by the two Courts below under the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
2. The respondent/landlady filed the petition for eviction on the sole ground that she bonafide requires the suit premises for her own occupation i.e., for the purpose of opening a fancy store by her unemployed son. The petition was resisted by the tenant contending that the alleged requirement was neither true nor bonafide and that the petition for eviction was filed as a counter-blast to the suit filed by him against the landlady and her children for recovery of possession of a portion of the property which was sold by them earlier to him under the sale deed dated 8-11-1979. The Rent Controller as well as the Appellate Authority upheld the plea of bona fide requirement and ordered eviction.
3. The undisputed facts of the case are that the suit premises, which is a shop room and which is a part of the residential building belonging to the respondent's husband late Tirumala Rao was let out to the petitioner some time during 1977 for the purpose of running a tailoring shop therein. In the year 1979 petitioner purchased the rear portion of the house from Tirumali Rao. In that portion which was purchased by him, the petitioner constructed 5 shop rooms and let out all those shops to others but continued as a tenant in the suit premises. According to the respondent, the petitioner promised to vacate the suit premises soon after the compeletion of the construction of the said shop rooms by the petitioner. But contrary to the promise made by him, he continued to squat on the suit premises. As the respondent and her family members were demanding him to vacate the suit premises, he filed OS No.1306 of 1987 with false allegations contending that a portion of the property sold to him was not delivered to him. It is the further case of the respondent that her husband died in the year 1986leaving behind him herself and two sons and two daughters, that one daughter only is married and that her first son Venkatesu, who is unemployed, and the other unmarried daughter are living with her and they are dependent on her. As her son Venkatesu could not secure a job, they have decided to open a fancy shop for him in the schedule premises.
4. In support of her case the respondent examined herself as PW1 and her son Venkatesu as PW2. The petitioner-tenant has examined himself as RW1 besides examining another witness as RW2.
5. On a consideration of the oral and documentary evidence adduced by both parties, the learned Rent Controller found that the requirement pleaded by the respondent is true and bonafide and ordered eviction and the same was confirmed on appeal by the Appellate Authority.
6. Sri P. Govinda Reddy, the learned Counsel appearing for the petitioner, assailed the orders of the two Courts below mainly on the ground that as the suit premises is part of the residential building, in the absence of any order passed by the Rent Controller under Section 18 of the Act for conversion of the same into a non-residential building, it continues to be a residential building only though it was let out for a non-residential purpose and as such it is not open to the respondent/landlady to seek the eviction of the petitioner for a non-residential purpose and the petition for eviction is not maintainable and is liable to be dismissed on this short ground. In support of this submission, the learned Counsel for the petitioner 'sought to place reliance on the decision of a Division Bench of this Court reported in P. Venkatakrishna Rao v. Dr. B. Seethanan, 1989 (2) APLJ 261. In the said decision it is held that when a residential building is let out for a non-residential purpose, the building continues to be a residential building unless it is converted asa non-residential building by an order of the Rent Controller and in the absence of such an order, a residential building cannot be construed as a non-residential building notwithstanding the fact that the building was let out for a non-residential purpose. It was accordingly held in that case that the eviction petition filed by the landlord on the ground that the premises is required for residential purpose is maintainable. This decision, in my view, does not render any assistance to the petitioner in the instant case. Section 10(3)(a)(i) of the-Act which deals with eviction from a residential building, inter alia, provides that if the landlord is not occupying a residential building of his own in the city, town, or village concerned, and he requires it for his own occupation, he may apply to the Controller for an order directing the tenant to put the landlord in possession of the building. It further provides that if the landlord, who has more buildings than one in the city, town or village concerned, is in occupation of one such building and he bona fide requires another building in the city for his own occupation, he may apply to the Controller for a similar order. This provision is silent with regard to the nature of the requirement of the landlord or the purpose for which he requires it. It does not state that the landlord has to use the residential building for residential purpose only. On the other hand, in the case of a non-residential building, Section 10(3)(a)(iii) specifically provides that the landlord is entitled to seek possession of such building for the purpose of a business which is being carried on by him or for the purpose of a business which he bona fide proposes to commence. Having regard to the difference of language employed in the section in relation to the two types of buildings, it can be said that it is open to the landlord to use his residential building either for residential purpose or for a non-residential purpose as the case may be. It is not necessary that the requirement should only be for the residential purpose. The Division Bench judgmentrelied on by the learned Counsel for the petitioner has not dealt with this question. This aspect of the matter has been considered by a learned single Judge of this Court in a subsequent decision reported in D. Krishna Rao v. K.V. Nayak, , wherein it is held that a residential building can be used either by the landlord or tenant not only for residential purpose but also for such non-residential purpose as the structure of the building admits of, for example, nursing home, office etc., while non-residential premises can be used only for non-residential purpose. In that context, the following observations were made by the learned Judge:
"Non-residential purpose is different from non-residential premises. It may be noticed that though the Act makes separate provisions for residential and non-residential premises in the matter of fixation of fair rent, grounds of eviction etc., it does not define residential or non-residential building. Section 18 of the Act says that no residential building shall be converted into non-residential building except with the permission in writing of the Controller. It may be noticed that there is no converse provision in respect of conversion of non-residential building into residential building."
In that case, the landlords, who were in occupation of the upper floors of the building for residential purpose, sought for eviction of the tenant from the ground floor portion which was let out for a non-residential purpose, for starting business in hardware, paints etc., by them. It was held that Section 18 was not a bar and the landlords were entitled for an order of eviction. In this decision, the Division Bench judgment in P. Venkatakrishna Rao v. Dr. B. Seetharam (supra) was also considered. In Maulavi ARFA and Company v. Jayakrishna, , the Apex Court, while dealing with a case arising under the provisions of the W.B. PremisesTenancy Act (12 of 1956) held that there is no bar in law in the way of the landlord requiring the business premises for his residential occupation and vice versa provided the premises is capable of being put to different uses. I do not, therefore, find any force in the contention of the learned Counsel for the petitioner.
7. In my view, the matter can be looked at in another angle also. According to the definition of a building in Section 2(iii) of the Act, 'building' means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purposes. According to this definition, the suit premises which is part of a bigger building and which has been separately let out for a non-residential purpose can, therefore, be regarded as a non-residential building for the purpose of the present case. As such there is no legal impediment for landlady to seek possession of the same for the purpose of the business, which is proposed to be commenced by her son. In this view of the matter also I do not find any infirmity in the impugned orders.
8. Coming to the question whether the requirement pleaded by the landlady is bona fide or not, it is true that the burden is on the landlady to establish the truth and bona fides of the said requirement. It is well settled that bona fide requirement is something more than a mere wish or whim or fancy though proof of absolute necessity is not required. Both the Courts below, on a consideration of the evidence and also the facts and circumstances of the case, have concurrently found that the requirement pleaded by the landlady is true and bona fide. I do not find any valid grounds to interfere with the said concurrent finding of fact reached by the two Courts below. The learned Counsel, however, contended that the falsity of the plea of the landlady is proved by the fact that another shop room whichfell vacant during the pendency of the proceedings was re-let out to an Ayurvedic shop. But it appears from the evidence of PW1 that the said shop was let out to the Ayurvedic shop in the year 1981 initially for a period of five years and subsequently the agreement is renewed for another five years. It is, therefore, not a case where the other shop room fell actually vacant and instead of occupying the same, it was let out by the landlady. I, do not, therefore, find any substance in this submission as well.
9. For all the aforesaid reasons, I do not find any merit in the CRP and it is accordingly dismissed but without costs. Having regard to the facts and circumstances of the case, the petitioner is granted three months' time from today for vacating the suit premises.