Allowed

Goluguri Vani Subbalakshmini, v. Grandhi Polayya

Telangana HC29 Sept 2011CRP/5541/2007

Case brief

AI extract

What is this about?

The Single Judge allowed the Civil Revision Petition, setting aside the appellate authority's order that dismissed the eviction petition on jurisdictional grounds. The Court held the building was constructed over 10 years prior and confirmed the petitioner's bona fide requirement to expand her cycle business with her grown-up son.

What did the court decide?

Order dated 13.07.2007 set aside; Rent Controller order of 11.04.2005 confirmed; tenant given till 31.12.2011 to vacate.

Goluguri Vani Subbalakshmini, Vs Grandhi Polayya — Landlord and Tenant | Telangana HC (2011)

¶1

THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

¶2

CIVIL REVISION PETITION No.5541 of 2007

¶3

O R D E R:

¶4

This Civil Revision Petition has been filed challenging the order passed by the appellate authority under A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 dated 13.07.2007 in R.C.A.No.27 of 2005 whereby and whereunder the appellate authority has set aside the order dated 11.04.2005 passed in R.C.C.No.52 of 2000 by the Rent ControllerPrincipal Junior Civil Judge, Rajahmundry.

¶5

2. The parties will be referred to as arrayed before Rent Controller for the sake of convenience.

¶6

3. The petitioner-landlady filed a petition, R.C.C.No.52 of 2000, seeking eviction of the respondent-tenant from the petition schedule premises on the grounds of willful default and bona fide requirement under Sections 10(2)(i) and 10(3)(c) of the A.P.Buildings (Lease, Rent & Eviction) Control Act.

¶7

4. The petitioner’s case in brief is as follows:

¶8

The petitioner is the absolute owner of the building premises bearing D.No.17-1-49/2, situated at Seethampeta, Rajahmundry. The said premises was constructed in the year 1987. It consists of ground, first and second floors. In the ground and first floors, there are three shop rooms in each floor and the second floor is a residential portion. Out of three shop rooms in the ground floor, southern side shop room is the petition schedule premises. The respondent is the tenant in the said premises from the year 1990. He has been doing kirana business in the said premises. The present monthly rent is Rs.900/- per month, payable on or before 5^th of every succeeding month. The respondent used to come to the shop of the petitioner’s husband and pay the rent and obtain

¶9

the initial of the petitioner’s husband in token of receipt of rent every month in a small note book. The respondent paid rents up to March, 2000 and subsequently committed willful default. The petitioner’s husband is doing business ie. sale of spare parts of cycles in a shop room situated in Vadrevuvari street bylane of T.Nagar, Rajahmundry since 1981. He could not expand his business for want of sufficient accommodation. Moreover, the said shop is situated in a remote area in a bylane. The petitioner’s son is grown up. The petitioner and her husband need the petition schedule premises for their own use for additional accommodation to open a branch of extension counter for doing business in sale of cycles and their son would duly assist them in their business. The petition schedule premises alone is convenient and suitable for their requirement when compared to other shops, because it is situated in the ground floor and slightly bigger in size than the other shop rooms and as per vastu the landlady should occupy the shop on the southern side alone. A legal notice was issued to the respondent on 19.06.2000. However, the respondent had sent a reply dated 21.06.2000 denying the claim of the petitioner. Then the petitioner filed this eviction petition.

¶10

5. The respondent filed a counter and denied the case of the petitioner. The respondent’s specific case is that the building was constructed in the year 1990 and completed in August, 1990 and it was let out to the respondent on 15.09.1990 by the then owner S.S.Rama Rao. It is denied that the building was constructed in the year 1987 and the second floor is vacant. On the date of filing of the petition, two rooms in the first floor were vacant. The respondent paid rents to the petitioner till April, 2000 and he was maintaining a small note book also. Later he filed R.C.C.No.46 of 2000 and depositing the rents in that case regularly. He has specifically denied the allegation that he committed willful default in payment of rents. The respondent filed O.S.No.600 of 2000 against

¶11

the petitioner and her husband when they tried to forcibly evict him. The present eviction petition is filed only to harass him. The shop in which the husband of the petitioner is doing business is nearby main road. She is having a separate godown in the same locality in addition to the said shop and it is also a big shop having two rooms. It is also false to state that the petition schedule premises is only convenient and suitable for their business and that it is slightly bigger and suitable as per vastu and that petitioner bonafidely require the same.

¶12

6. The learned Rent Controller formulated necessary points and on behalf of the petitioner, the husband of the petitioner was examined as PW.1 and their son was examined as PW.2 and Exs.P.1 to P.11 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and R.Ws 2 and 3 were examined and Exs.R.1 to R.5 were marked besides Ex.X.1 through R.W.2.

¶13

7. The learned Rent Controller on appreciation of oral and documentary evidence came to the conclusion that the petitioner failed to prove that the respondent committed willful default in payment of rents. However, on the point of bona fide requirement, the Rent Controller held that the petitioner proved that the petition schedule premises is bonafidely required by her and accordingly allowed the petition. Aggrieved by the same, the tenant carried the matter in appeal. The appellate authority, on re-appreciation of the evidence came to the conclusion that the building was constructed in the year 1990 and therefore, the Rent Controller has no jurisdiction to entertain the eviction petition and holding so, accordingly allowed the appeal. Challenging the same, this revision petition has been filed.

¶14

8. Sri B.Sudhakar Reddy, learned counsel for the revision petitioner submitted that the lower Court failed to appreciate that the petition schedule premises was constructed in the year 1987 and went

¶15

wrong in holding that there was an old building and the same was demolished and a new building was constructed in its place. It is also submitted that the son of the petitioner has grown up and the landlady wants to expand her business of sale of cycles with the assistance of their son and that they bonafidely require the petition schedule premises and the same was not considered. It is also his submission that the property tax for the building was paid in the year 1987-88 and the appellate authority has failed to appreciate the documentary evidence in proper perspective and wrongly came to the conclusion that the said receipts pertain to the old premises without any evidence. It is also argued that the Rent Controller has given cogent reasons for his finding and the appellate authority has reversed the said finding on untenable grounds. It is also argued that the invitation card relied by the tenant could be printed at any time and this probability is not taken into consideration. It is also argued that the premises is bonafidely required by the landlady since her son has completed his education and the petitioner wants to expand their business. He has also relied on the decision reported in Gurrampadi Annama Raja v Pathakamoori Malyadri^[1] .

¶16

9. On the other hand, the learned counsel for the respondenttenant argued that sole intention of the landlady is to evict the tenant and when other premises are vacant, the landlady could have extended their business in the vacant premises and that the comparative difficulty must be considered. He has relied on the decisions reported in Smt.Vidya Bai and another v Shankerlal and anothe r^[2] , Yashoda Devi Sarada and another v Poornima Dresses, rep. by its Partner Mr.Padamsh i^[3] and C.R.P.No.87/82 dated 16.10.2001.

¶17

10. The points that arise for consideration are whether the building

¶18

was constructed 10 years prior to the date of filing of the eviction petition? and 2) whether the petitioner proved that she bonafidely required the premises?

¶19

11. POINT No.1:

¶20

The petitioner’s specific case is that the building was constructed in the year 1987. The respondent’s specific case is that the building was constructed in the year 1990 and that he became tenant in the said premises since 15.09.1990. It is not the case of the respondent that there was an old premises and the said old premises was demolished and in its place a new building has been constructed. It has to be seen that the petitioner has filed relevant documents marked as Exs.P.4 to P.10. Ex.P.4 is the extract of tax demand register for the year 1987-88. Though no house number is given in it the assessment number is given as 7125. Ex.P.5 is extract of property tax demand register for the year 1988-89. In this, door number is shown as 17-1-49/1. The assessment number is 7125. These documents show the name of the original owner Sangisapu Meenakshamma. Similarly, Ex.P.6 is the extract of property tax demand register for the year 1989-90. In this, door number and assessment number are same as shown in Ex.P.5. The other documents are for the subsequent years after the year 1990 and therefore not relevant. The appellate Court did not consider Exs.P.4 to P.8 in proper perspective. The appellate Court rejected them on the premise that they pertain to the old premises. It is not the case of the tenant that the structure was demolished and in its place a new building has been constructed. As seen from the evidence of R.W.1 himself, it is clear that originally the entire building including the petition schedule property belong to one S.S.Rama Rao and the said S.S.Rama Rao constructed the premises in the vacant site situated on the east of his residential house. Door number of his residential house is 17-1-49. Originally, the door number allotted to the shopping complex was 17-1-49/1. Thus, from the evidence of R.W.1

¶21

itself it is clear that the door number of old residential house is 17-1-49 and S.S.Rama Rao constructed a new building in the vacant site. It is not the case of respondent that there was an old building and after demolishing it, in its place a new building was constructed. The appellate Court reached to this conclusion without any pleading or evidence. Thus, the appellate Court has misread the evidence and the findings of the appellate Court are perversed and not based on evidence.

¶22

12. Even otherwise admittedly R.W.1 has been doing business in the petition schedule premises since 1990. His case is that the building was inaugurated on 21.09.1990. It has to be seen that according to R.W.1, Rama Rao completed his construction in August, 1990. There is no evidence adduced on behalf of respondent except Ex.R.2 ie. invitation card to show when the construction of the building was completed. The eviction petition was filed on 26.06.2000. It is not necessary that the building should be inaugurated soon after its completion of construction. Date of inauguration is only a relevant factor to be considered but the same cannot be the sole basis or conclusive proof to establish the date of completion of construction. Therefore even if the version of respondent is accepted, it cannot be said that the construction of the building was not completed 10 years before filing the eviction petition. Accordingly, the point is answered.

¶23

13. POINT: 2:

¶24

As far as bona fide requirement is concerned, it is the case of the petitioner that her son is grown up and they want to expand their business. The husband of the petitioner is examined as PW.1. Their son is examined as PW.2. Their evidence shows that they intend to expand their business and open a shop and sell cycles and that the present premises at T.Nagar is not sufficient to expand their business. PW.2 has

¶25

completed his Graduation, besides that he has also acquired knowledge in accounts and computers. The evidence of R.W.3 reveals that PW.2 has not yet completed his C.A. course. Thus, the evidence of R.W.3 does not help the respondent. When a landlady wants to expand their business and chooses a particular premises and says that the same is convenient for expansion of business, the same cannot be rejected unless there is satisfactory contra evidence. The evidence of PWs.1 and 2 reveals that the petition schedule premises is bigger than the other shops and it is suitable as the stair case leading to their residential premises is adjacent to the petition schedule shop room and therefore, the same is more convenient and suitable for their requirement out of the three shops. Though R.W.1 deposed that two shops in the ground floor fell vacant, but he has subsequently admitted that tenant of one shop did not handover keys to the petitioner. He has also admitted that the other shop Ganga Fancy Stores is smaller than petition schedule premises. It is settled law that it is the choice of the landlady to select the premises convenient and useful to them. Therefore on the issue of bona fide requirement also, I am satisfied that the petitioner has proved that she bonafidely required the premises for expansion of their business.

¶26

14. The learned counsel for the appellant relying on the judgment between Rattan Lal v Prem Sagar alias Prem Chand^[4] submitted that a tenant cannot be evicted merely on the wish of a landlord. The facts of that case reveal that there was no scope of cycle business at Khanna as compared to Ludhiana where premier industries of bicycle and cycle parts are located and since it was a concurrent finding it was held that the same cannot be disturbed in revision.

¶27

15. Reliance is also placed on the judgment in case between Smt.Vidya Bai and another v Shankerlal and another (second supra) it was held that

¶28

“under Section 10(3)(a)(iii) of the Act, a landlord in

¶29

occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another nonresidential building in the occupation of a tenant; the bar under the Section against securing eviction of the tenant of such non-residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the applicant (landlord) or to meet the bona fide need of any other member of the family of the applicant (landlord), independent of and over and above the need of the applicant (landlord), are all, in our view, irrelevant considerations in the context of construing the provisions in Section 10(3)(a)(iii) of the Act which, in clear terms, interdicts the landlord, in absolute terms, from seeking recovery of the nonresidential building belonging to him in the occupation of the tenant”.

¶30

16. However, the Apex Court has taken a contra view that though the landlord may be having a non-residential premises in his possession, but, when he is in need of a non-residential premises in the occupation of a tenant for expansion of his business or for the business of his son or dependant the factors such as size, suitability, convenience, sufficiency etc. have to be taken into consideration. (Ref. Boorgu Jagadeshwaraiah & Sons v Pushpa Trading Co., (1998) 5 SCC 572 (cited in later paras). Reliance is also placed on the judgment in case between Narbadabai Pitti and others v B.Narsing Sha^[5] . In that case, the landlords are the tenant on the ground of bona fide requirement. The Rent Controller dismissed the petition. The appellate authority also has concurred with the findings of the Rent Controller. The landlord had already filed R.C.No.611 of 1993 on the ground of bona fide requirement but it was dismissed. In that case there was no evidence on record to show that petitioners 2 and 3 therein were competent to run the business or obtained necessary requirements like licence, permission

¶31

etc. to show their bona fides and the landlords therein were having several non-residential premises in twin cities and in respect of two premises they filed eviction petition and got the tenants evicted by the date of filing of the petition. In the above circumstances it was held that the landlords were not entitled to evict the tenant. Thus, it is clear that the facts of that case are entirely different and can be distinguished.

¶32

17. The Apex Court in Dattatraya Laxman Kamble v Abdul Rasul Moulali Kotkunde^[6] wherein it was observed as follows:

¶33

“If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business has flourished by leaps and bounds which was started by a novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned Single Judge that acquisition of sufficient know how is a precondition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that “no experience no venture”.

¶34

18. This Court in case between Yashoda Devi Sarada and

¶35

another v Poornima Dresses, rep. by its Partner Mr.Padamsh i^[7] observed that it is not necessary in every case that the landlord should establish previous experience for starting a new business.

¶36

19. In case between Gulab Chand Pukhraj v R.B.Jinender Raj and anothe r^[8] approved the view taken in Boorgu Jagadeshwaraiah

¶37

& Sons v Pushpa Trading Co., (1998) 5 SCC 572, wherein the Apex Court observed that the aspects of quality, size and suitability of the building cannot be put out of consideration and doing so would frustrate the purposes of the Act. It is also settled law that the landlord is the best Judge of his requirement and Courts are not concerned and dictate the landlord as to how and in what manner he should live.

¶38

20. In case between Kanda Lingaiah v P.Nirmala Dev i^[9] it was

¶39

held that

¶40

“the requirement by the sons and husband of the landlord is also requirement of the landlord and, therefore, in the present case the respondent established her bona fides for commencing the business by her sons and husband in the medical business and general stores.”

¶41

In case between Joginder Pal v Naval Kishore Beha l^[10] , the

¶42

Apex Court observed as follows:

¶43

“The expression “for his own use” as occurring in Section 13(3)(a)(ii) of the Act cannot be narrowly construed. It must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfil the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use.

¶44

Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of a society or a particular region to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such

¶45

requirement would be the requirement of the landlord. 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 interrelationship and interdependenceeconomic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong”.

¶46

21. Thus, where in a case a landlord intends to settle his son or any other dependant so as to support himself it becomes an obligation of such landlord to support his son or such dependant by providing necessary help in starting independent business and when such landlord seeks eviction of a tenant from a non-residential premises though he may be having his own business in another non-residential premises, his requirement has to be considered as bona fide requirement.

¶47

22. This Court in case between Gurrampadi Annama Raja v Pathakamoori Malyadri (one supra) observed that as far as the size and suitability of the premises is concerned, the landlord is the best Judge and a tenant cannot dictate what should be the size of the shop. In the light of the above discussion, it has to be seen that though the petitioner is having a shop and selling spare parts of cycles but that shop is not on the main road but it is in a lane leading to the main road and appears to be not sufficient and suitable for extension of their business. Moreover, the son of the petitioner has grown up and they want to expand their business and commence the business in sale of cycles and it cannot be said that it is only mere wish of the landlord and not a bona fide requirement and according to the petitioner, the premises is convenient and suitable to open a branch or an extension counter of their business in sale of cycles. It is also the case of PW.1 that there is a

¶48

vacant site to the west of the schedule shop room, which is convenient to keep the stock of cycles.

¶49

23. In view of the same, I hold that the petitioner bonafidely requires the premises. The Civil Revision Petition is accordingly allowed without any order as to costs and the order dated 13.07.2007 passed in R.C.A.No.27 of 2005 by the appellate authority is set aside, confirming the order dated 11.04.2005 passed in R.C.C.No.52 of 2000 by the Rent Controller. However, the respondent-tenant is granted time to vacate the premises till 31^st December, 2011 subject to the payment of rents including arrears if any the respondent shall not to induct any third party and also give undertaking to that effect before the Rent Controller within four weeks from today.

¶50

B.CHANDRA KUMAR, J

¶51

Dt. 29^th September, 2011

¶52

PNV

¶53