Andhra HC (Pre-Telangana)
Champalal Bhandari vs Smt. Mayadevi on 12 September, 1997
Equivalent citations: 1997(5)ALT502, 1998 A I H C 650, (1997) 6 ANDHLD 184, (1997) 5 ANDH LT 502, (1997) 3 APLJ 243
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. This revision petition is filed Under Section 22 of the A.P. Buildings (Lease, Rent & viction) Control Act by the tenant of a non-residential premises- mulgis bearing Nos. 5-3-492 and 493 situated at Topkhana Road, Osmangunj, Hyderabad. The petitioner has been carrying on business of glass and plywood etc. in the said premises. The premises bearing No. 5-3-492 was taken on lease in the year 1979 under a rental deed. The monthly rent originally agreed upon was Rs. 250/ - per mulgi and the same was increased to Rs. 350/ - subsequently. Though the eviction petition was filed in the year 1986 on several grounds, the only ground on which the eviction petition was allowed is the ground mentioned in Section 10 (2) (v) of the Act. A tenant securing alternative building is the ground for eviction as per the said provision. Both the Courts below held that the petitioner-tenant secured alternative accommodation of more than one premises for the purpose of doing business and therefore, the petitioner is liable for eviction.
2. The two buildings which are found to be in the nature of alternative accommodation secured by the tenant are the mulgi bearing No. 5-3-496, Topkhana road, and premises bearing No. 5-3-625 in the same locality consisting of ground floor plus two floors. The facrum of securing another non-residential building bearing No. 3-5-806/2 situated at King Koti locality was also put against the petitioner. However, in the absence of plea taken by the Respondent in regard to this premises, I am not at all inclined to base my conclusion on this ground. Even in regard to building No. 5-3-625, I feel that on the basis of available evidence, it is not safe to order eviction on that ground. But, for the reasons stated hereinafter, I affirm the findings of the Courts below with regard to securing alternative accommodation by taking on rent the mulgi bearing No. 5-2-496 (sic. 5-3-496) in the year 1983.
3. As regards the building bearing No. 5-3-496, the argument advanced on behalf of the petitioner is that it is not an alternative accommodation, but, it is only in the nature of additional accommodation. The learned Counsel for the petitioner relied upon a Division Bench decision of this Court in S. Ramalakshmamma v. Lakshmi General Stores, 1974 (2) APLJ 73 to highlight the distinction between 'alternative' and 'additional accommodation'. It may be mentioned that the requirement of additional accommodation is a ground for eviction under Clause (c) of Section 10 (3) of the Act if the landlord is occupying a part of the building and the tenant is occupying the whole or any portion of the remaining building. As far as the building bearing No. 5-3-625 is concerned, the stand of the petitioner is that it does not belong to him as it fell to the share of his mother at the time of family partition effected in the year 1980.
4. The learned Counsel for the respondent-landlord (sic. landlady) stressed on the fact that no plea was raised by the tenant as regards the premises No. 5-3-496 that it was taken on rent to provide additional accommodation to his existing business. The learned Counsel has drawn my attention to the discussion in the judgments of the Rent Controller and the appellate Court and submits that there is no illegality or irregularity in the impugned orders and they are based on appreciation of entire evidence on record.
5. Before proceeding further, I may refer to the observations of the Division Bench in Ramalakshmamma's case (1 supra) as regards the can notation of the term 'alternative accommodation' in contra-distinction to 'additional accommodation'. Their Lordships after referring to the phrase 'secured' observed:
"It follows therefore that whether the tenant has constructed his own building or has taken a building on rent in either case, it will mean that he has secured a building within the meaning of the said provision provided of course that such building satisfies the essential requirement of being an 'alternative building' to the one from which he is sought to be evicted."
6. Expounding the scope of expression 'alternative building' the learned Judges observed at paragraph-24:
"What follows from what is considered above is that there is implicit in this conception of alternative existence of two buildings similarly circumstanced or so situated as to render a choice between the two fairly probable. The 'alternative building' within the meaning of Section 10(2) (v) of the Act would mean a building alternative to the one from which the eviction of the tenant is sought under the Act. While considering the question as to whether the building secured by the tenant can be said to be alternative to the building from which he is sought to be evicted, the Court could properly take into account not only the physical character of the two buildings but also environmental matters, either, as a consideration affecting its suitability to the needs of the tenant."
Again at paragraph-28, it was clarified:
"The difference between the additional requirement of the tenant for his expanded business on the one hand and the alternative accommodation to satisfy the present needs of the business of the tenant which he has been carrying on in the suit premises is too patent and obvious."
7. In that case, the learned Judges agreed with the appellate authority that the new building constructed by the tenant is only additional accommodation for the expanded business of the tenant and it was not alternative accommodation.
8. First, I will take up the question whether securing the premises No. 5-3-496 can be considered as securing an 'alternative building' within the meaning of Section 10(2)(v) or whether it is only in the nature of additional accommodation. The said premises is bigger than the premises belonging to the respondent-landlady i.e., 5-3-492 and 5-3-493 (in respect of which the eviction is sought), as stated by RW-4 in cross-examination. According to RW-1, it is having an area of 800 sq. feet. Thus, considering the size of the mulgi, there is no impediment in treating it as alternative accommodation, subject of course to other relevant factors.
9. The next and most crucial aspect to be noted is that in reply to specific averment of the landlady that the tenant secured alternative accommodation of four mulgis including 5-3-496, this is what the petitioner-tenant stated in the counter filed in the Rent Control Court:
"It is false to say that the respondent has secured alternative building 5-3-496 for non-residential purpose. The said building does not belong to him. The allegation that the business is being carried on in the alternative secured mulgi is false. The petitioner is put to strict proof of proving the same."
10. The landlady filed Ex.P-1, which is a Greetings-Cum-Invitation Card sent by Bhandari Glass Company on the occasion of Diwali of November, 1985. It was written therein that Pooja will be performed from 10-30 p.m. till mid-night of 12-11-1985 at Shop No. 5-3-496. The petitioner as P.W.I (sic. R.W.1) admitted that invitation card pertains to his business. He also admitted that he is carrying on business in the said mulgi i.e., 5-3-496 under the name and style of 'Bhandari Glass Company. In view of this irrefutable evidence, the petitioner took a volte-face and came forward with the version that the premises No. 5-3-496 although being used for his business purpose, was obtained for the purpose of 'additional accommodation'. For the first time, in the course of his deposition, he set up the plea that he had to take that mulgi on rent from another landlord for the reason that the landlady objected to cutting the glass in the premises and scattering glass pieces on the passage. There is absolutely no explanation as to why there was a blanket denial at the earliest opportunity and then he came forward with a different version. It gives rise to an inference that the petitioner was out to suppress the truth and he had not come to the Court with clean hands. This conduct on the part of the petitioner casts any amount of doubt on the veracity of his version. When once it is admitted that he has secured some other accommodation which, having regard to the size and location, is suitable for his business, it is for the tenant to place before the Court cogent material in support of his stand that the said accommodation was for extension of his existing business and therefore it is only an additional but not alternative accommodation. The fact whether the new premises secured is additional or alternative accommodation would normally be within the exclusive knowledge of the tenant and therefore he should divulge all the relevant facts which have real bearing on that aspect. The petitioner was merely content with an assertion at the time of giving evidence that the new mulgi was taken on rent for the purpose of utilising the same for glass cutting and polishing. No other proof was adduced in support of this fact. On the other hand from Ex.P-1 (Diwali Invitation Card), it is reasonable to infer that he is carrying on business in the new premises obtained by him which as already noted, is larger than the premises from which the eviction is sought. RW-1 categorically stated:
"I am carrying on business in the said mulgi under the name and style of Bhandari Glass Company."
It is difficult to understand this statement as meaning that the said mulgi (5-3-496) was being used merely as on adjunct to the main business being carried on in the premises which is the subject-matter of this petition. Moreover, the petitioner failed to produce the rental deed pertaining to the premises bearing No. 5-3-496 though he admitted that the rental deed was executed in favour of the landlord of that premises. He merely stated that the "copy of the rental deed" was misplaced. It is quite possible that in the said rental deed, there might be some recital about the purpose for which the mulgi was taken on rent or some other relevant information about the improvements proposed to be carried on therein. An adverse inference has to be drawn for not producing the rental deed relating to the premises No. 5-3-496. Even without such adverse inference, the other aspects discussed above are sufficient to reach the conclusion that the petitioner secured alternative accommodation within the meaning of Section 10 (2) (v) in the year 1983 when he took the nearby mulgi-larger in size, on lease for the purpose of carrying on the very business that was being carried on in the premises in question. I cannot, therefore, find fault with the finding reached by the lower Courts, that the premises No. 5-3-496 is in the nature of alternative accommodation secured by the petitioner.
11. With regard to the premises 5-3-625, in the eviction petition, the landlord mentioned the number of the premises as 5-3-624 which is an obvious mistake. Naturally, the respondent took advantage of it and stated in the counter that he had nothing to do with the said premises. The factum of total denial in the counter is put against the petitioner by the appellate Court. But, in the context of wrong number given in the petition, such denial cannot be faulted. In fact, the petitioner as RW-1 clarified the position in the chief -examination itself. While reiterating that the building bearing No. 5-3-624 did not belong to him, he stated that the building bearing No. 5-3-625 consisting of a ground floor, first floor and second floor belongs to his mother. The other details given about this building by RW-1 are as follows:-
"The above premises was purchased by my father with the aid of joint family money. The witness again stated that I do not know as I am a minor. It is true that the said property was purchased for the benefit of all the family members. There is one mulgi in the ground floor. The said building plinth area is about 700 to 800 sq.feet. The 1st floor and 2nd floor of the building bearing 5-3-625 are residential portions. My mother and younger brother are in occupation of the 1st floor and 2nd floor of the said building. The ground floor is in occupation of my younger brother. Originally he purchased the building, later it was renovated.
During the life-time of my father, we were all residing together in the premises No. 5-3-625. My father died in the year 1989."
12. RW-1, however, did not explain as to how the ownership of the building 5-3-625 vested with his mother. RW-4 (younger brother of RW-1) filled up this gap in the evidence by stating that there was a partition in the year 1989 after the death of his father and in that partition the property fell to the share of his mother. He stated that he was residing with her mother in that house. He also stated that his father purchased the building 5-3-625 during his lifetime and at that time, the family was joint in all respects. The appellate Court may be justified in commenting that subsequent to the examination of RW-1, the other witnesses tried to improve on the version of RW-1. The appellate Court then commented that the shifting stands taken in the counter and the evidence of the tenant threw a doubt on the veracity of his version that he had no interest in the building No. 5-3-625 which is admittedly having non-residential premises in the ground floor. It is true that the petitioner (examined as RW-1) did not come forward with all the relevant details about partition and no partition deed was filed to establish the exclusive right of his mother. From this, it does not necessarily follow that the petitioner has exclusive right in the non-residential portion of the building, which is said to be in the occupation of petitioner's younger brother RW-4. The more crucial aspect which has been overlooked by both Courts is the date of acquisition of the building No. 5-3-625. Firstly, there was no positive assertion either in the eviction petition or in the evidence of P.W.1 that the building 5-3-625 was secured by the petitioner and/ or his family members after the date of tenancy of the demised premises i.e., after 1979. Secondly, the evidence of RW-1 would unmistakably indicate that the said building would have been purchased long before 1979. RW-1 stated that he was a minor at the time of purchase of the house. He gave evidence in the year 1992 when he was aged 35 years. If the said building was acquired after 1975 or 1979, the petitioner would not have been a minor at that time. In this state of pleadings and evidence, it is not possible to infer much less to conclude that the non-residential premises in 5-3-625 or a part thereof became available to the petitioner subsequent to the dates of which he took the premises in question i.e., 5-3-492 and 493 on lease. Therefore, it is difficult to invoke Clause (v) of Section 10 (2) against the petitioner. Nevertheless, the conclusion reached as regards the other premises namely 5-3-496 is sufficient to uphold the order of eviction.
13. Accordingly, the Civil Revision& Petition is dismissed. No costs.
14. Six moths time is granted for vacating the premises subject to the payment of amount equivalent to rent every month on the date agreed upon. It is made clear that the petitioner will not be entitled to any further extension of time.