Allowed

Smt. Shoukatunnissa, v. Sultan Na-hdi

Telangana HC23 Aug 2011CRP/3680/2006

Case brief

AI extract

What is this about?

In a rent control revision, the High Court allowed the petitioner's petition against an appellate order that had erroneously set aside the lower authority's eviction decree. The court held the appellate court's findings perverse regarding the petitioner's bona fide need to evict tenants for her unemployed son's business.

What did the court decide?

Revision petition allowed; Impugned order of appellate court set aside; Respondents directed to vacate premises by 31-12-2011 and handover possession; Costs to each party.

Smt. Shoukatunnissa, Vs Sultan Na-hdi — Landlord and Tenant | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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Tuesday, the 23^rd day of August, 2011

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Present:

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The Hon’ble Sri Justice B. Chandra Kumar C.R.P.No. 3680 of 2006

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Between: Smt. Shoukatunnisa

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..Petitioner and

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Sultan Nahadi and another

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…Respondents

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The Hon’ble Sri Justice B. Chandra Kumar C.R.P.No. 3680 of 2006

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O r d e r:

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This revision petition is directed against the order dated: 28-03-2006 in R.A.No. 356 of 1999 passed by the learned Additional Chief Judge, City Small Causes Court, Hyderabad

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2. The facts necessary for disposal of this revision are as follows: The petitioner herein is the petitioner before the Rent Controller (herein after called as petitioner). The first respondent is stated to be the original tenant and he has sub-let the premises to the respondent No.2. It is not in dispute that the petitioner is the owner and landlady of Mulgi measuring 16’ x 10’ bearing D.No.22-1-1083, Panch Mohalla, Moghalpura, Hyderabad.

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3. Initially, the first respondent obtained the said Mulgi on a monthly rent of Rs.60-00, exclusive of electricity charges, for commercial purpose. Lease deed was executed on 1.12.1970. Subsequently the rent was enhanced from time to time and it was Rs.300-00 on the date of filing of the petition. The landlady alleges that the first respondent was irregular in payment of rents and he has sub-let the premises to the second respondent taking huge amounts from the second respondent. The second respondent has been running a medical shop. It is also alleged that the second respondent also was irregular in payment of rents and committed default from 1973 onwards. An allegation was also made that taking advantage of the illiteracy of the landlady; a false receipt

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was obtained from her. It is further alleged that though the rent was enhanced to Rs.300-00; the tenant had sent a demand draft for Rs.6,000-00 dated:12-10-1995 calculating rent at the rate of Rs.100-00 per month from January, 1991 to December, 1995. It is further alleged that the tenant committed default in payment of rent from January, 1991 to March, 1996, as far as balance of rent is concerned. The further case of the landlady is that one of her sons is unemployed and that the Mulgi is required for establishment of suitable business by her son and therefore the Mulgi is required for her bona fide requirement. Thus, on the ground of sub-letting; willful default and bona fide requirement, the petition was filed under section 10 (2)(i) and (3)(iii)(a) of Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960. 4. The respondents have filed separate counters. 5. First respondent filed his counter stating that he obtained the premises in question on rent on 25.11.1990. He denied the allegation of willful default and sub-letting. His specific case is that he was compelled to go abroad during 1973; as such he requested the second respondent to look after the business directing him to pay rents regularly to the petitioner and that the second respondent had occupied the premises even without paying the costs of furniture and fittings. 6. The second respondent filed a separate counter admitting the jural relationship of landlady and tenant between the petitioner and himself. His case is that he, himself, had obtained the premises from the landlady on

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1.12.1973 initially on a monthly rent of Rs.60-00 and subsequently the rent was enhanced from time-to-time. His specific case is that the brother of the petitioner, Sadiq was collecting rents from January, 1980 onwards and that on 7.1.1990 a sum of Rs.3,150-00 was adjusted towards MCH taxes and those receipts were also handed over to the landlady. His further case that subsequently he paid rent @ Rs.100-00 per month and thereafter rent was sent through Money order from January, 1996 to April, 1997. He has denied that the rent was enhanced to Rs.300-00 from January, 1991. He has also contended that rents for October and November,1990 were paid twice and therefore, he sought adjustment of the same. All other material averments of landlady have been denied. It is denied that the petitioner bona fidely require premises for her son’s business. He further contended that the petitioner’s husband and other sons are in Footwear business in various places of the City.

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7. On the basis of the above pleadings, the learned Rent Controller framed the following points for consideration.

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i) Whether the first respondent sub-leased the petition schedule property to second respondent without the consent of the petitioner and thereby liable to be evicted.

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ii) Whether the conduct of the respondents 1 and 2 is witlful in paying the rents as lumpsum and thereby defaulters?

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iii) Whether the son of the petitioner bona fidely require the premises.

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8. On behalf of the petitioner, the landlady, herself, was examined as PWs 1 and one M.A. Khader was examined as PW-2 and Exs P-1 and P-2 were marked. On behalf of the respondents, the second respondent was examined as RW-2 and one S.M. Mahmood was examined as RW-2 and Exs R-1 to R-59 were marked.

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9. On appreciation of the oral and documentary evidence, the learned Rent Controller, on the issue of subletting came to the conclusion that the second respondent cannot be termed as sub-tenant and that the second respondent has been carrying on the business on behalf of the first respondent. Therefore the first respondent continues to be the tenant of the premises. On the issue of willful default it was held that the first respondent committed willful default. On the issue of bona fide requirement also it was held that the petitioner bona fidely require the premises and accordingly allowed the petition.

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10. Challenging the same, the second respondent preferred the appeal. The learned appellate authority having re-appreciated the evidence came to the conclusion that the petitioner failed to prove her bona fide requirement of the premises and challenging the said finding the landlady filed the present revision. 11. It appears that on an earlier occasion the contentions of the landlady were accepted in the earlier proceedings, when the matter was carried to this court. This court in its order dated:09-11-2005 made in

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C.R.P.No. 1410 of 2005 was pleased to observe “ that the appellant has pleaded that the pleadings were defective and the landlady should be given an opportunity to rectify the pleadings and let in further evidence in relation to all the grounds inclusive of bona fide personal requirement”. 12. The learned counsel for the petitioner submitted that RW-1 admitted that he has been running seven medical halls in twin cities and that the evidence on record reveals that the petitioner has four sons; PW-2 is her second son; PW-2 wants to carryon Computer center and that he got a Diploma in Computers. It is her main submission that merely because her son has not produced his educational certificates, her claim has been rejected. 13. In support of her contention that the tenant needs to be evicted from the premises in question, on the ground of bona fide requirement, the learned counsel for the petitioner relied on the following decisions of the Apex Court:

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i) Mohinder Prasad Jain v. Manohar Lal Jain^[1] wherein it was held “ Experience in the business is not a precondition under any statute. Even no experience therefore may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this court may not unless an appropriate case is made out, disturb the findings of the fact arrived at by the Appellate Authority and affirmed by the High Court”.

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ii)

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Joginder Pal v. Naval Kishore Behal^[2]

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the Apex Court held:

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“ The expression - landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and inter-dependence - economic or otherwise, between the landlord and such person in the background of social, socioreligious and local customs and obligations of the society or region to which they belong.

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The tests to be applied are: (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) Whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim.”

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iii) Gian Devi v. Jeevan Kumar^[3] held:

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“ A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions in some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial.”

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iv) In Kanda Lingaiah v. P. Nirmala Devi^[4] this court held:

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“Eviction on the ground of bona fide requirement of the husband and son of the petitioner for running medical shop – the fact that they are having experience in the said business established – both the courts below found that the requirement is bona fide – Hence the tenant is liable to be evicted”

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v) Challa Maheshwara Rao v. Vadagam

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Venkata Subba Rao^[5] this court held:

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“ As per section 10 (3)(a)(iii) of the Act, landlord can seek eviction of a tenant from a nonresidential building if landlord is not occupying a non-residential building in the town, which is his own or to the possession of which he is entitled to under the Act, for the purpose of business which is carrying on by the date of application or for the purpose of business which the landlord bona fine proposes to commence. There is no doubt that landlord is a MBA graduate and unemployee. …… It was however urged that

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father and grandfather of the landlord demanded enhancement of rent and when tenants refused to do so, with mala fide intention eviction petition was filed. Both the authorities recorded a finding against tenants on this aspect. Lower authorities held that landlord bona fide require petition schedule premises for commencing business in electronics.”

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14. It is submitted that when the landlady claims that she requires the premises for the business of her children, the same amounts to bona fide requirement and when the son of the landlady is unemployed and wants to carry on business, the same also amounts to bona fide requirement. It is also submitted that the tenant cannot dictate terms to the landlord.

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16. Per contra it is submitted that when earlier the matter came up before this court, this court observed that the landlady may amend the pleadings; let in further evidence in support of her contention and the landlady has not amended the petition averments subsequently and no further evidence was also let in and therefore on the same ground the order of the appellate court cannot be set aside.

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17. Now the only point that arises for consideration is whether the petitioner bona fidely require of the premises for her son’s business.

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18. It is true that on the earlier occasion, when the matter came up before this court, this court observed as follows:

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“ Having recorded certain findings as referred to supra, the grounds on which eviction

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had been ordered by the Rent Controller had been reversed. No doubt, on the aspect of jural relationship of landlady and the tenant and the sub-letting positive findings had been recorded confirming the findings of the learned Rent Controller to the effect that there is no subletting. It is true that in the pleadings by the landlady specifically it was pleaded as though there was direct tenancy between the landlady and Sultan Mehdi. But, however, as can be seen from the findings referred by both the learned Rent Controller and the appellate authority this aspect was not serious considered and both the parties had proceeded on the ground that the ground of subletting is by the direct tenant R-1 in the R.C. to R-2 in the R.C. Be that as it may, on the quantum of rent also there appears to be some controversy and certain findings had been recorded. The main ground of attack of the contesting respondent R-1 in the present C.R.P. is that the pleadings are defective and as the case cannot be further improved when the very pleadings are defective. In the light of the findings recorded by the appellate authority which had been referred to supra on the other grounds and also in the light of the evidence of RW-2, this court is of the considered opinion that the landlady to be given an opportunity to rectify even the pleadings if she is so advised and also let in further evidence in relation to all the grounds inclusive of bona fide personal requirement since want of evidence had been specifically pointed out by the appellate authority.”

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19. A reading of the above paragraph gives an impression that the question of defective pleadings were only in relation to the sub-letting of the premises and the

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quantum of rent. It is not clear whether it was argued that there were no proper pleadings with regard to bona fide requirement also. Therefore, the observations of this court that the landlady be given an opportunity to rectify the pleadings seems to be in respect of sub-letting of the premises or quantum of rent. Though it is observed that if the landlady is so advised, she may rectify even the pleadings, let in further evidence on all the grounds, including bona fide requirement, since want of evidence had been specifically pointed out by the appellate authority, but the same appears to be a passing remark, as there is specific pleading of the landlady with regard to bona fide requirement.

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20. As far as bona fide requirement is concerned, the petitioner in paragraph-6 of her petition specifically pleaded as follows:

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“ The petitioner submit that one of her son is unemployed and she wants to establish a suitable business in the said mulgi as such the petitioner required the mulgi for her personal and bona fide requirement on this ground also, the respondents are liable to be evicted.”

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21. Therefore, now, it cannot be said that there is no specific pleading with regard to bona fide requirement. As far as evidence let in by the parties is concerned, the appellate court seems to have given much importance to the issue of non-production of Diploma Certificate by PW-2. Regarding bona fide requirement is concerned, when the landlady and her son PW-2 both have categorically deposed that they

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require the premises for opening of Computer business by PW-2, I am of the opinion that much importance need not be given as to whether PW-2 has produced Certificate of Diploma or not. Of course PW-2 claimed that he is a qualified computer professional having secured a Diploma in Computers. It is also stated that PW-2 did not produce any certificate. For opening or starting business in computers, one need not have a Diploma Certificate in computers. A Certificate may be required for securing a job, but, the certificate may not be necessary for doing business in Computers. Therefore, it is clear that the observations of the appellate authority are perverse.

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22. Moreover, as seen from the order of the Rent Controller, it is clear that RW-2 has been running seven medical halls in twin cities in the name of “Nehdi Medical Halls”. Of course it has also come on record that the family of PW-1 is having two shops wherein they are doing shoe business. It is not in dispute that the petitioner has four sons. It is her specific case that her eldest son and second son are not doing any business and that her second son, PW-2 herein wants open an independent business in computers. When the petitioner is having four sons and when she wants to provide separate business premises to her son, who is PW-2, it cannot be said that petitioner’s requirement of the premise is not bona fide. All the facts and circumstances of the case have to be taken into consideration. Admittedly the respondent No.2 is

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having seven medicals halls in twin cities. Therefore, even if he is evicted from the petition schedule premises, it does not cause any hardship to him, but if the landlady is not given opportunity to provide separate premises to her unemployed son, it will certainly result in causing injustice to her. Therefore, it is clear that the appellate court has not considered the evidence in proper perspective and its findings are perverse against the evidence and in that view of the matter the order of the appellate court is liable to be set aside.

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23. Accordingly the revision petition is allowed. The Judgment passed by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, in R.A.No. 356 of 1999 dated:28-3-2006 is set aside restoring the order passed by the learned I Additional Rent Controller, Hyderabad on 28.9.1999 in R.C.No. 218 of 1996. Consequently the respondents are directed vacate the petition schedule premises on or before 31-12-2011 and handover the vacant possession of the same to the petitioner. In the circumstances the parties are directed to bear their own costs.

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B. CHANDRA KUMAR, J.

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*August 23, 2011. BVS

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[1] 20067 (2) SCC 724

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[2] 2002 (5) SCC 397

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[3] 1985 (2) SCC 683

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[4] 2002 (6) ALD 590 [5] 2008 (5) ALD 814

Smt. Shoukatunnissa, v. Sultan Na-hdi

Case brief

What is this about?

What did the court decide?

Smt. Shoukatunnissa, v. Sultan Na-hdi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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