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Andhra High Court · body

2003 DIGILAW 1391 (AP)

Mohd. Sultan v. Ramchand T. Tourain

2003-11-11

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri Balchand, Counsel representing the petitioner and Ms. G. Sudha, Counsel representing the respondent. ( 2 ) ONE Mohammad Sultan, Revision petitioner/landlord filed Civil Revision Petition 4176/95 as against an order made in R. A. No. 252/91 on the file of Chief Judge, city Small Causes Court, Hyderabad. The self-same landlord filed Civil Revision petition 1614/96 as against an order made in R. A. No. 376/91 on the file of Chief judge, City Small Causes Court, Hyderabad. These two rent appeals were preferred as against an order made in R. C. No. 2320/86 on the file of III additional Rent Controller, Hyderabad. ( 3 ) SRI Balchand, the learned Counsel representing the petitioner/landlord had explained how two Rent Appeals were preferred. The learned Counsel also commented that the learned Rent Controller though had negatived the ground of wilful default, had arrived at the correct conclusion relating to bonafide personal requirement which was also reversed by the appellate authority. The learned Counsel had taken this Court through the evidence of PW-1 and PW-2 and had explained that Patancheru, at any stretch of imagination, cannot be treated as part and parcel of the City or town since eviction in the present eviction petition is sought for relating to a building in the City. The learned Counsel also had taken this Court thoroughly through the evidence available on record. In all fairness, the learned Counsel submitted that as far as the ground of wilful default is concerned, since findings are concurrent findings, serious arguments cannot be advanced in this regard. But however, the learned Counsel had emphasized that as far as the ground of bonafide personal requirement is concerned, the reversal by the appellate authority is totally unsustainable and on this ground, the Revision petitioner/landlord is bound to succeed. ( 4 ) ON the contrary, Mrs. Sudha, the learned Counsel representing the respondent/tenant had contended that there is no default, much less, wilful default, and concurrent findings had been recorded in this regard. The learned counsel also submitted that the pleading is for hotel business and the premises is not suitable at all for hotel business and this aspect is a very crucial aspect. Sudha, the learned Counsel representing the respondent/tenant had contended that there is no default, much less, wilful default, and concurrent findings had been recorded in this regard. The learned counsel also submitted that the pleading is for hotel business and the premises is not suitable at all for hotel business and this aspect is a very crucial aspect. The learned Counsel also would maintain that the view of the landlord is only to have enhanced rent and absolutely there is no requirement of bonafide requirement on the part of the landlord. The learned Counsel also had placed reliance on PHIROZE BAMANJI DESAI Vs. CHANDRAKANT M. PATEL, MATTU LAL Vs. RADHE lal and HAMEEDIA HARDWARD STORES Vs. B. MOHAN LAL SOWCAR. ( 5 ) HEARD the Counsel and also perused the oral and documentary evidence available on record and the findings recorded by the learned Rent Controller and also the learned appellate authority. ( 6 ) THE Revision petitioner/landlord filed R. C. No. 2320/86 pleading as hereunder: the petitioner is the owner of the ground floor mulgies and first floor thereon bearing Municipal No. 1-1-261/18, situated at Chikkadpally, Hyderabad. The respondent is the tenant of the ground floor mulgi forming part of the said premises, shown in red colour in the plan filed herewith and hereinafter referred to as suit mulgi on a monthly rent of Rs. 300/- exclusive of electricity charges to be borne by the respondent. The respondent has executed rental deed dated 4-2-1985 in favour of the petitioner herein and a xerox copy of the rental deed is filed herewith. It was further pleaded that as per clause No. 2 of the rental deed referred to supra, the respondent was to pay rent on or before 10th of each succeeding regularly without any single default. The respondent is a wilful and chronic defaulter in payment of rent. For each payment of rent, receipts had been passed. For the last time, the respondent had paid rent for the month of March 1986 on 14-4-1986 for which receipt had been passed. Now he is a wilful and chronic defaulter in payment of rent for the period commencing from 1-4-1986 to 31-8-1986 for full five months, amounting to Rs. 1,500/ -. In spite of repeated demands, the respondent has intentionally withheld the rent. The act of the respondent in withholding rents clearly amounts to wilful default warranting an order of eviction. Now he is a wilful and chronic defaulter in payment of rent for the period commencing from 1-4-1986 to 31-8-1986 for full five months, amounting to Rs. 1,500/ -. In spite of repeated demands, the respondent has intentionally withheld the rent. The act of the respondent in withholding rents clearly amounts to wilful default warranting an order of eviction. Hence the claim under Section 10 (2) (i) of the act. It was also pleaded that the suit mulgi is a non-residential one and had been let out to the respondent for carrying on business. ( 7 ) IT was also further pleaded that the petitioner herein is the owner of the suit mulgi and also adjoining mulgi occupied by another tenant Sri A. Kedar Eshwar reddy. The petitioner has a grown up son by name Mohd. Hafeez who is without any employment. The petitioner requires the suit mulgi in occupation of the respondent and the adjoining mulgi for the purpose of commencing and carrying on hotel business by Mohd. Hafeez, son of the petitioner. The said premises are quite suitable and convenient for commencing and carrying on hotel business. The claim of the petitioner is bonafide and genuine. The petitioner s son Mohd. Hafeez has got sufficient experience in hotel business. In fact, he had carried on hotel business under the name and style of "hotel Grand" in a rented premises at Patancheru for some time. Subsequently also he carried on business under the name and style of hotel Meharaj at Patancheru. Due to dispute between the petitioner s son and the partner in the business, he was forced to discontinue the business. In order to maintain the family and to have regular source of income, it is but necessary to commence and carry on business. The petitioner is not in occupation of any other non-residential building in the city of hyderabad or Secunderabad for the purpose of the said business. The petitioner, therefore, essentially and bonafidely requires the suit premises. It was also pleaded that the petitioner had also simultaneously filed eviction petition against the adjoining tenant A. kedar Eshwar Reddy. The petitioner, therefore, is entitled to claim eviction of the respondent under Section 10 (3) (iii) (b) of the Act. The petitioner, therefore, essentially and bonafidely requires the suit premises. It was also pleaded that the petitioner had also simultaneously filed eviction petition against the adjoining tenant A. kedar Eshwar Reddy. The petitioner, therefore, is entitled to claim eviction of the respondent under Section 10 (3) (iii) (b) of the Act. ( 8 ) IT was further pleaded that the first floor of the suit mulgi and the adjoining mulgi are occupied by two tenants who are using it for their office purpose. The first floor is not suitable and convenient for hotel business and as such the petitioner had chosen the ground floor mulgies for the hotel business. It was further pleaded that the petitioner is carrying on meat business in a rented premises. It was further pleaded that the period for which the suit mulgi was let out to the respondent was only eleven months and the same had expired. The respondent specifically agreed to vacate the premises immediately after expiry of the said period, but in spite of repeated demands the respondent had failed to vacate the mulgi. ( 9 ) THE respondent tenant filed a counter admitting certain allegations and denying certain allegations. It was pleaded in the counter as hereunder: the contents of paras 1 and 2 of the petition are not disputed to the extent that the petitioner is the owner of ground floor mulgies and first floor thereon bearing M. No. 1-1-261/18, situated at Chikkadpally, Hyderabad and the respondent is the tenant of the ground floor mulgi, part of the premises No. 1-1-261/18, situated at Chikkadpally, Hyderabad. The correctness of the plan marked in red colour cannot be admitted as the petitioner failed to furnish a copy of the plan to the respondent. The monthly rent of the premises being Rs. 300/-, excluding electricity charges is not disputed. Similarly, the execution of rental deed on 4-2-1985 is not disputed. Originally, the petitioner had let out the suit premises to the respondent on a monthly rent of Rs. 175/- and gradually enhanced the same on the threat of eviction to the present rent of Rs. 300/ -. However, not being satisfied by the present rent, the petitioner had filed the present eviction petition. Originally, the petitioner had let out the suit premises to the respondent on a monthly rent of Rs. 175/- and gradually enhanced the same on the threat of eviction to the present rent of Rs. 300/ -. However, not being satisfied by the present rent, the petitioner had filed the present eviction petition. ( 10 ) IT was further pleaded that the contents of para 3 of the petition are not disputed to the extent that the respondent was to pay rent on or before 10th of every succeeding month provided the petitioner comes and collects the same. But it is the practice of the petitioner to come and collect rent at the place of the respondent. It was further pleaded that the petitioner was collecting rent according to his own convenience once in three or four months and even some times in eight months which is evident by the rent receipts issued by the petitioner. The respondent never defaulted in payment of rent and as such the respondent being a chronic defaulter in payment of rent is false. It is false and incorrect that the respondent paid last rent for the month of March 1986 on 14-4-1986. In fact, the last rent was paid on 14-5-1986 for the month of April, 1986. But the petitioner had evaded to pass receipt to create a ground of default. It is false and incorrect that the respondent is due months rent from 1-4-1986 to 31-8-1986 amounting to Rs. 1500/ -. It is also false and incorrect that the respondent failed to pay rent even after repeated demands. In fact, the respondent had waited for the petitioner as usual that he will come and collect rent of four months from May to 31st August 1986, but he had failed to come and collect rents as per the practice and instituted the present false suit by alleging that the respondent had defaulted in payment of rent. The respondent had paid Rs. 3000/- on the first date of hearing of the petitioner which covers upto the end of February 1987. The petitioner stopped collecting rent for subsequent months. The petitioner had stopped collecting rent once again from March 1987 and therefore the respondent had sent rent for the month of March 1987 on 5-3-1987 which was refused by the petitioner. 3000/- on the first date of hearing of the petitioner which covers upto the end of February 1987. The petitioner stopped collecting rent for subsequent months. The petitioner had stopped collecting rent once again from March 1987 and therefore the respondent had sent rent for the month of March 1987 on 5-3-1987 which was refused by the petitioner. The respondent had also sent rent for the month of April 1987 on 7-4-1987 which was refused by the petitioner and subsequently the respondent got issued a legal notice to the petitioner calling upon him to furnish the name of the Bank wherein he is having credit account. The respondent had acknowledged the notice but to no avail. Later, the respondent had sent three months rent to the petitioner on 26-5-1987, but the same was refused and later the respondent had paid rent to the petitioner s counsel in the Court. ( 11 ) IT was pleaded that the contents of para 4 of the petition are not disputed to the extent of the suit premises being non-residential premises and carrying on business in the same. However, the contents of para 5 of the petition are denied by the respondent. It was admitted that the petitioner is the owner of the suit mulgi and that the adjacent mulgi is occupied by the Eswar Reddy. It was pleaded that it is false and incorrect that the petitioner requires the suit mulgi for his son. In fact the proposed hotel business is an after thought and the requirement of the petitioner is not bonafide. It is false and incorrect that the petitioner requires the suit mulgi for the establishment of hotel for his son and that he had informed the same. It was also specifically pleaded that the petitioner had never informed the respondent that he requires the suit premises. The other allegations of the petitioner are false and baseless and the petitioner is put to strict proof of the same. It was further pleaded that the alleged requirement of the petitioner is not bonafide and is created only for the purpose of enhancing the rent. ( 12 ) THE landlord examined himself as PW-1 and his son was examined as PW-2 and exs. P-1 to P-3 were marked. The tenant examined himself as RW-1 and Exs. R-1 to r-26 were marked. ( 12 ) THE landlord examined himself as PW-1 and his son was examined as PW-2 and exs. P-1 to P-3 were marked. The tenant examined himself as RW-1 and Exs. R-1 to r-26 were marked. The learned III Additional Rent Controller, Hyderabad on the basis of the material available on record, had framed the following Points for consideration : 1. Whether the respondent is a wilful defaulter in payment of rent from 1-4-1986 to 31-8-1986 amounting to Rs. 1500/- in respect of the suit premises ? 2. Whether the petitioner requires the suit premises bonafide for the purpose of commencing hotel business by his son ? ( 13 ) THE learned Rent Controller had discussed Point No. 1 at paras 11 to 18 and had arrived at a conclusion that the tenant cannot be held to be a willful defaulter. The learned Rent Controller also had further discussed at paras 19 to 26, Point No. 2, and ultimately had arrived at the conclusion that the landlord requires the premises bonafide and accordingly on that ground eviction was ordered. The tenant aggrieved by the same, had preferred R. A. No. 252/91 and equally the landlord aggrieved by the portion of the order had preferred r. A. No. 376/91 and the learned appellate authority - Chief Judge, City Small causes Court, Hyderabad, allowed the Appeal of the tenant and dismissed the appeal of the landlord and aggrieved by the same, the landlord had preferred these two Civil Revision Petitions. ( 14 ) AT the outset, it may be stated that as far as the ground of wilful default is concerned, concurrent findings had been recorded and the Counsel also had not advanced serious arguments relating to this ground. Even otherwise, I do not see any reason to disturb the concurrent findings recorded by both the learned rent Controller and the appellate authority and hence there are no grounds to interfere with the same in C. R. P. No. 1416/96. ( 15 ) AS far as the ground of bonafide personal requirement is concerned, the order of the learned Rent Controller was reversed by the appellate authority. The evidence of PW-1 and PW-2 is available on record and both these witnesses deposed that they require the premises and the adjacent mulgi too for the purpose of commencing hotel business. ( 15 ) AS far as the ground of bonafide personal requirement is concerned, the order of the learned Rent Controller was reversed by the appellate authority. The evidence of PW-1 and PW-2 is available on record and both these witnesses deposed that they require the premises and the adjacent mulgi too for the purpose of commencing hotel business. Section 10 of the Act deals with Eviction of tenants and Section 10 (3) (a) (iii) reads : "a landlord may subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building - (iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this act or otherwise - (a) for the purpose of a business which he is carrying on, on the date of the application, or (b) for the purpose of a business which in the opinion of the Controller, the landlord bona fide proposes to commence; provided that a person who becomes a landlord after the commencement of the tenancy by an instrument interviews shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered; provided further that where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this clause - (i) in case he has obtained possession of a residential building, for possession of another residential building of his own; (ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own. Section 10 (3) (d) of the Act reads :"where the tenancy is for a specific period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period. " ( 16 ) THE case of the Revision petitioner/landlord is that he requires the suit mulgi and the adjacent mulgi which is in occupation of yet another tenant for the purpose of commencing hotel business by his son. " ( 16 ) THE case of the Revision petitioner/landlord is that he requires the suit mulgi and the adjacent mulgi which is in occupation of yet another tenant for the purpose of commencing hotel business by his son. The stand taken by the respondent/tenant is that this requirement alleged by the landlord is not a real requirement, but only a fancy requirement and at any rate it is only an after thought. No doubt, PW-1 deposed that he intends to open a hotel for his eldest son in the demised mulgi and the adjacent mulgi and both those mulgies are facing the road and his son did some partnership business at Patancheru under the name and style of "grand" and subsequently under the name and style of "hotel Mehraj" in a rented premises and due to disputes among the partners he had discontinued the said business and he has no other non-residential accommodation in the twin cities except the suit mulgi and the adjacent mulgi and he filed R. C. No. 2319/86 against the other tenant on the ground of personal requirement and PW-1 also deposed that he is a Butcher by profession and has been running a meat shop in a rented premises and that his son studied only upto 7th or 8th class and in come in his meat business is not sufficient to the needs of the family and also to the family of his son. In cross-examination, it was elicited that he of the a residential house at Patancheru and also at Mangalhat and had constructed mulgies at Patancheru and they are vacant as the construction was not completed. He also deposed that his son was residing at mangalhat. No doubt, PW-1 deposed that his son is still running two hotels at patancheru. The son of PW-1 was examined as PW-2 and according to him, two mulgies are suitable for hotel business and he has got experience in hotel business and had narrated how he was conducting hotel business and subsequent thereto how disputes arose. He was cross examined wherein PW-2 admitted that there is ancestral property at Patancheru and also made certain admissions relating to his mulgies. PW-2 also deposed that he carried on hotel business from 1977 to 1981 and there is no documentary evidence to show that the partnership was dissolved between him and the other partners. He was cross examined wherein PW-2 admitted that there is ancestral property at Patancheru and also made certain admissions relating to his mulgies. PW-2 also deposed that he carried on hotel business from 1977 to 1981 and there is no documentary evidence to show that the partnership was dissolved between him and the other partners. ( 17 ) THE tenant as RW-1 had deposed that the son of the petitioner is having four mulgies of his own at Patancheru and he is continuing as a partner in Hotel grand at Patancheru. According to RW-1, absolutely there is no need and the present bonafide personal requirement, raised as a ground, is only aimed at with a view to throw him out and nothing more. The learned Rent Controller came to the conclusion that the whole of the family of the petitioner should be treated as one unit and hence the requirement of the landlord to commence business by his son should be taken as bonafide personal requirement. The documentary evidence - Ex. P series and also Ex. R series, had been discussed in detail. The appellate authority had taken into consideration all the aspects and came to the conclusion that the requirement alleged by the landlord is not bonafide. The appellate authority in fact observed at para 5 :". . . . . . . . NEITHER PW-1 nor PW-2 stated the truth to the Court as to how PW-2 was managing his affairs or what he was doing during 1981 to 1986 and what was his source of income to maintain his family. It is in the evidence of RW-1 that pw-2 completed construction of four mulgies at Patancheru and he is a voter in the Assembly constituency of Patancheru are admitted by PW-2 in his cross-examination. In other words, PW-2 kept himself busy at Patancheru ever since 1981 and he did not think of commencing business from the suit premises and he realized need for commencing the business only in the year 1986 goes to establish that the need of PW-2 is neither genuine nor pressing in respect of the suit premises for the commencement of hotel business. In other words, the requirement of the petitioner in respect of the suit premises is not a bonafide one. In other words, the requirement of the petitioner in respect of the suit premises is not a bonafide one. On the other hand, the plea of the respondent that bonafide requirement for the son of the petitioner is invented for the purposes of letting out the same at exorbitant rent to another tenant appears to be probable. " ( 18 ) NO doubt a serious contention was advanced by the learned Counsel representing the landlord that the appellate authority was carried away by the reason that the landlord and his son are owning certain buildings at Patancheru and patancheru cannot be treated, at any stretch of imagination, as part of the city and hence the whole approach is erroneous. It is no doubt true that Patancheru cannot be treated as part and parcel of the Hyderabad city as such. However, the nature of evidence of PW-1 and PW-2 and also the conduct of the landlord had been well considered by the appellate authority and ultimately the appellate authority came to the conclusion that the landlord is not entitled to the relief of eviction on the ground of bonafide personal requirement. ( 19 ) IT is no doubt true that the landlord is not occupying a non-residential building in the city, town or village concerned. It is also no doubt true that running the same business elsewhere at Patancheru or otherwise owning certain mulgies at Patancheru, may not in any way alter the situation. It is clear from the findings recorded by the appellate authority that the appellate authority came to the conclusion that the ground of bonafide personal requirement is not established since the relief of eviction is being prayed for by the landlord only on a fancy requirement and not on a real bonafide requirement. It is clear from the findings recorded by the appellate authority that the appellate authority came to the conclusion that the ground of bonafide personal requirement is not established since the relief of eviction is being prayed for by the landlord only on a fancy requirement and not on a real bonafide requirement. In the decision referred (3) supra, while dealing with the aspect under Tamil Nadu buildings (Lease and Rent Control) Act, 1960 it was held by the Apex Court at para 13 as hereunder :"we are of the view that by merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10 (3) (a) (iii) appears get a tenant evicted. He must show in view of clause (e) of Section 10 (3) that his claim is bona fide. The word claim means "a demand for something as due" or "to seek or ask for on the ground of right" etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord s requirement or need. The word claim in clause (e) of Section 10 (3) of the Act should, therefore, be considered as the requirement of the landlord or his deservedness. deserve means to have a rightful claim or a just claim . Since clause (e) of Section 10 (3) of the Act is also applicable to a petition filed under sub-clause (iii) of Section 10 (3) (a) of the Act, it becomes necessary to examine whether the requirement of the landlord is bona fide. deserve means to have a rightful claim or a just claim . Since clause (e) of Section 10 (3) of the Act is also applicable to a petition filed under sub-clause (iii) of Section 10 (3) (a) of the Act, it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10 (3) (a) (iii) of the Act. Take a case where a landlord for some oblique reason wishes to get rid of his tenant from a non-residential building of the category mentioned in Section 10 (3) (a) (iii) and to achieve his aim fakes to start money-lending business (for which indeed no specific separate portion in a building may be needed) in a building not belonging to him and to create evidence even actually lends money to some of his friends or relatives and a week thereafter applies for eviction of the tenant on the ground that he is carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned. Apparently, the conditions prescribed in the aforesaid sub-clause (iii) are fulfilled. If the requirement of "claim" being "bona fide" as contained in Section 10 (3) (e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secure. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is the object of enacting clause (e) of Section 10 (3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. The need of the landlord should be genuine. That is the object of enacting clause (e) of Section 10 (3) of the Act. When once we reach the above conclusion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family as held by this Court in Phiroze Bamanji Desai v. Chandrakant M. Patel (1974) 3 SCR 267 : ( AIR 1974 SC 1059 ) and Mattulal v. Radhe Lal (1975) 1 SCR 127 : ( AIR 1974 SC 1596 ). The learned Judge who decided the case out of which this appeal arises was, therefore, in error in holding that the landlord need not prove that his requirement was bona fide but that his claim was bona fide as provided in clause (e) of Section 10 (3) of the Act. The learned Judge has made a distinction between requirement and claim in the present case without there being a difference. " ( 20 ) IN the light of the findings recorded in detail on appreciation of both oral and documentary evidence by the appellate authority, especially taking the conduct of PW-1 and PW-2 into consideration, it cannot be said that the said findings in any way deserve to be disturbed while exercising Revisional jurisdiction under section 22 of the Act. ( 21 ) IN the light of the foregoing discussion, both the Civil Revision Petitions are devoid of merits and they shall stand dismissed. No costs.