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Andhra High Court · body

2005 DIGILAW 636 (AP)

B. Suresh Babu v. Pogula Sivasankara Reddy

2005-07-15

P.S.NARAYANA

body2005
O. MANOHAR REDDY, J. ( 1 ) THE Counsel representing the revision petitioner, and Sri Veera Reddy, the Counsel representing the respondent. ( 2 ) THE landlord-5. Suresh Babu aggrieved by the reversing order made in c. M. A. No. 5/2000 on the file of Senior civil Judge, Nandyal, which was preferred as against the order of eviction made in r. C. C. No. 2/97 on the file of Rent controller-cum-Principal Junior Civil Judge, nandyal, had preferred the present C. R. P. The ground on which the landlord filed eviction petition against the tenant is bona fide personal requirement of the landlord. The learned Rent Controller recorded the evidence of P. Ws. 1 and 2 and R. Ws. 1 to 4, and marked Exs. B. l to B. 15 and ultimately came to the conclusion that the landlord requires the premises bona fide and ordered eviction. Aggrieved by the same, the respondent herein-the tenant in the aforesaid R. C. C. , filed C. M. A. No. 5/2000, which was reversed by the Appellate authority-cum-Senior Civil Judge, Nandyal. Hence, the present C. R. P. ( 3 ) SRI O. Manohar Reddy, the learned Counsel representing the revision petitioner, had taken this Court through the respective pleadings of the parties, the evidence available on record and the findings recorded by the learned Rent controller and also the Appellate Authority, and would comment that bona fide personal requirement is clearly established and hence, the Appellate Authority erred in reversing the well-considered findings of the learned Rent Controller. The learned counsel also pointed out to the evidence of p. Ws. 1 and 2 and would maintain that it is the wish of the landlord to commence a particular business at a particular premises and the tenant cannot dictate what the landlord must do. In that view of the matter, the Appellate Authority had totally erred in reversing the well-considered findings of the learned Rent Controller. The learned Counsel also placed reliance on the under-noted decisions: dattatratya Laxman Kamble v. Abdul rasul Moulali Kotkune and another, AIR 1999 SC 2226 ; Urimi Kamakshamma (Died) and others v. Bolem Seethamma, 2002 (3) ALT 490 ; Shiv Sarup Gupa v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 ; Mohd. The learned Counsel also placed reliance on the under-noted decisions: dattatratya Laxman Kamble v. Abdul rasul Moulali Kotkune and another, AIR 1999 SC 2226 ; Urimi Kamakshamma (Died) and others v. Bolem Seethamma, 2002 (3) ALT 490 ; Shiv Sarup Gupa v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 ; Mohd. Moonuddin v. A. Yadagiri, 1982 (2) ALT 154 ; B. Ataullah v. K. Nisar ahmed, 2001 (5) ALD 517 ; R. C. Tamrakar and another v. Nidi Lekha, (2001) 8 SCC 431 ; M. L. Prabhakar v. Rajiv Singal, (2001) 2 SCC 355 ; P. S. Pradeep Kaka and others v. Shafee Ahmed Saheb, (2004) 5 SCC 241 and Akhileshwar Kumar and others v. Mustaqim and others, (2003) 1 scc 462 . ( 4 ) ON the contrary, Sri Veer a Reddy, the learned Counsel representing the respondent-tenant, had taken this Court through the findings recorded by the appellate Authority and had stressed on the words "bona fidely requires" and would contend that the burden of showing the bona,-fides, would be on the landlord. The learned Counsel also would comment that other non-residential premises is also available and the landlord does not require these premises at all for any purpose much less for running any business, whatsoever, and hence, the ground of bona fide personal requirement had not been established. The learned Counsel placed strong reliance on the decisions reported in vemuri Somisetti v. Messors. Vagicherla guravaiah and Sons, represented by its Sol Partner Vagicherla Guravaiah, 1975 (2) An. W. R. 370 and K. Nagappa v. T. D. Krishnasa and another, AIR 1971 ap 243 . ( 5 ) HEARD the Counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the learned Rent Controller and also the appellate Authority as well. ( 6 ) THE revision petitioner-landlord had pleaded that he is the owner of the scheduled premises which is non- residential shop, at Nandyal Municipality, which he had let-out to the respondent- tenant for doing business on a monthly rent of Rs. 950/- and the respondent has been carrying on business under the name and style of Nava Bharat Banian Centre. It was also pleaded that on 10-6-1992, the respondent-tenant executed an unregistered lease agreement on a stamped paper in recognition of the earlier oral lease, dated 1-1-1992. 950/- and the respondent has been carrying on business under the name and style of Nava Bharat Banian Centre. It was also pleaded that on 10-6-1992, the respondent-tenant executed an unregistered lease agreement on a stamped paper in recognition of the earlier oral lease, dated 1-1-1992. It was also pleaded that the respondent-tenant also paid an amount of Rs. 5,700/- towards advance. It was further pleaded that the petitioner wanted the premises to be vacated as per the agreement, so that he can start the cloth business from 1-1-1995. Instead of vacating, the tenant issued a legal notice dated 16-2-1995, for which a reply was given. The tenant filed RCC No. 2/95 praying for permission to deposit rents. It was also pleaded that the petitioner made all arrangements to commence cloth business, and hence, he bona fidely requires the same. ( 7 ) RESPONDENT-TENANT denied the allegations. It was pleaded that the petitioner never demanded the respondent-tenant to vacate the premises for the purpose of starting cloth business. Specific stand was taken that since he had expressed his inability to enhance the rent, inasmuch as huge amount had been demanded, this litigation is thought of. ( 8 ) THE ground on which the eviction is prayed for by the landlord is bona fide personal requirement to start cloth business. P. W. 1 is the landlord and P. W. 12 is the person from which it is said that P. W. 1 has been learning some business. It is pertinent to note that the tenant has been of tenancy since 1981 but however a latter date was shown relating to the commencement of tenancy by the landlord. P. W. 1 also admitted in cross-examination that the rent was Rs. 50/- originally during 1981-86 and when the landlord was a minor, his mother demanded enhanced rent of rs. 800/- and refused to receive the same and hence, the tenant filed R. C. C. No. 8/87 praying for permission to deposit rents. The same is evidenced by Ex. B. 1. Subsequent thereto, a compromise was arrived at. The rent receipts marked Exs. B. 2 and B. 3 also would establish the same. R. Ws. 2 and 3 deposed about the panchayat, in which the tenant accepted for Rs. 1,000/- per month as enhanced rent instead of Rs. 1,800/- as demanded by the landlord. B. 1. Subsequent thereto, a compromise was arrived at. The rent receipts marked Exs. B. 2 and B. 3 also would establish the same. R. Ws. 2 and 3 deposed about the panchayat, in which the tenant accepted for Rs. 1,000/- per month as enhanced rent instead of Rs. 1,800/- as demanded by the landlord. In view of the same, the father of the landlord refused to accept the rent. The details had been narrated by RWs. 2 and 3. Though p. W. 1 deposed about some partition between his father and brother and he had stated that the petition schedule shop is fallen to his share. No evidence was produced in this regard. P. W. 1 also deposed that he got another shop at Gandhi Chowk. The evidence of RW. 4 also was appreciated and Ex. X. 1-attested copy of Street Survey plan also had been discussed. These exs. B. l, B. 2, B. 3 the rent receipt books, ex. B. 4-Office copy of legal notice, Ex. B. 5- returned M. O. Coupon, Ex. B. 6-Served copy of reply notice, Ex. B. 7-Rejoinder, ex. B. 8-Certified copy of order in R. C. C. No. 2/95, Ex. B. 9 and B. 10-Photographs, ex. B. 11-Telegraphic notice, Ex. B. 12-Office copy of legal notice, Ex. B. 13-Photograph, ex. B. 14-Certified copy of petition in R. C. C. No. 8/87 and Ex. B. 15-Extract of R. C. C. Register in R. C. C. No. 8/87 also had been discussed. Thus, the Appellate Court had recorded a clear finding that in the facts and circumstances of the case, the bona fide personal requirement is not established, and hence, the order of eviction cannot be sustained. ( 9 ) THE Counsel representing the revision petitioner relied upon: in Dattatratya Laxman Kamble v. Abdul rasul Moulali Kotkune and another (supra), while dealing with the ground of "reasonably and bona fide required by landlord" under Bombay Rents, Hotel and lodging House Rates Control Act, it was held: "sections 15 and 15a are not applicable in this case and hence we are not bothered about their implications. The grounds mentioned in clause (g) of Section 13 (1) is couched in a language to provide emphasis to the genuineness of the requirement of the landlord by using the words "reasonably and bona fide required by the landlord". The grounds mentioned in clause (g) of Section 13 (1) is couched in a language to provide emphasis to the genuineness of the requirement of the landlord by using the words "reasonably and bona fide required by the landlord". In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for, any unreasonable requirement is not bona fide. Vice-versa can also be spelt that if the requirement has to be bona fide it must necessarily be reasonable also. But when the legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a part with dire need of a landlord because the latter is a much greater needed. " in Urimi Kamakshamma (thed) and others v. Bolem Seethamma (supra) it was held: "the question, however, is whether the landlady is disentided to seek eviction of the tenant-respondent when one of landlady s sons started business in another non-residential premises, which fell vacant during the pendency of the Rent Control case. This question no more res Integra. Even where one of the sons of the landlady or a close relative is in occupation of a non-residential building either for the purpose of family business or for the purpose of business of son or other relative, section 10 (3) (a) (iii) of the Act, is not a bar to seek eviction of the tenant. In G. Kaushalya Devi ( AIR 2000 SC 656 ). The apex Court held: a contention was also raised that another shop had been purchased by the mother of the respondent with the amount loaned by the respondent and that on that ground it could also be said that the respondent was entided to possession of that shop as well. This contention has been repelled by the High Court and rightly so. High Court upheld the finding of the courts below that the respondent required the suit premises for his personal occupation for conducting the business and that these findings were neither perverse or based on any extraneous irrelevant material. High court was also of the view that the Act did not prohibit eviction of the tenant by the landlord if the members of the family of the landlord possessed other non- residential premises. High court was also of the view that the Act did not prohibit eviction of the tenant by the landlord if the members of the family of the landlord possessed other non- residential premises. Even though the respondent and his brothers were conducting business on partnership basis in m/s. Seetha Traders, yet it was no ground to contend that the requirements of respondent is not bona fide. I have already held that the kndlady sought eviction of the tenant for the bona fide requirement of commencing business by her two sons namely Ungeswara Rao and lakshmi Surjanarayana. When a landlord has several dependent sons and seeks to evict the tenant from non-residential premises for commencing business by one of his sons, the mere fact that during the pendency of the Rent Control proceedings, one of the sons started business in a non-residential premises which fell vacant upon the vacation of the premises by another tenant, in my considered opinion, does not act as a bar to evict the tenant under Section 10 (3) (a) (iii) of the Act. Lasdy, I must observe that the learned appellate authority misdirected himself in not addressing the question correctly. As per second proviso to Section 10 (3) (a) (iii) of the Act, if a landlord obtained possession of a building under the same clause, that alone will act as a bar from seeking possession of non-residential building. Admittedly, another tenant of the landlady, purnachandara Rao handed over vacant possession of the premises bearing municipal No. 11/811 after receiving the eviction notice and after filing RCC No. 42 of 1982 against the respondent. The landlady did not obtain possession of the vacant premises from Purnachandara rao under Section 10 (3) (a) (iii) of the Act. Admittedly, another tenant of the landlady, purnachandara Rao handed over vacant possession of the premises bearing municipal No. 11/811 after receiving the eviction notice and after filing RCC No. 42 of 1982 against the respondent. The landlady did not obtain possession of the vacant premises from Purnachandara rao under Section 10 (3) (a) (iii) of the Act. It is well settled that when a Tribunal addresses the wrong question, it amounts to misdirection in law, and is liable to be corrected by the revisional authority" in Urimi Kamakshamma (thed) and others v Bolem Seethamma (supra), it was held at Para 13, as hereunder: "chambers 20th Century Dictionary defines bona fide to mean "in good faith genuine" the word "genuine" means "natural not spurious real pure sincere" In Law dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit" Thus the term bona fide or genuinely refers to a state of mind requirement is not a mere desire The degree of intensity contemplated by "requires" is much more higher than in mere desire The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court The Judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the kndlord the need to occupy the premises can be said to be natural, real, sincere, honest If the answer be in the positive, the need is bona fide the failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting and of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord Once the Court is satisfied of the bona fides of the need of the kndlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose, the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the kndlord to satisfy his such need In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life An approach either too liberal or too conservative or pedantic must be guarded against" in Mohd Moonuddin v A Yadagiri (supra), it was held that even in case where there are no lapses on the part of the tenant, still the necessity of the landlord also has been taken care of and in a situation where the landlord establishes the requirement as bona fide for his personal occupation of business the necessity or the inconvenience of the tenant is subordinated to the bona fide requirement of the landlord in a case where the eviction is sought for on the ground of bona fide requirement and if all the ingrethents of bona fide requirement are satisfied the ground of hardship to the tenant does not assume any significant dimension. Even in a situation where there is great hardship to the tenant and equally the bona fide requirement has been proved satisfactorily, the tilt should be in favour of the landlord. In B Ataullah v K Nisar Ahmed (supra), it was held: "further, relating to the theory of the tenant that the landlord thought of this eviction petition only because his demand for enhanced rent repeatedly was not acceded to, also cannot be believed since in the evidence of PW 1 he had categorically stated that it is a voluntary payment inspite of his repeated requests to the tenant to vacate the premises In the light of dus background, the ground of bona fide requirement of the landlord should be taken as a ground taken by the revision petitioner relating to his family and with a view to improve the income of the family as such in Mangtlal Mathi v Kishen Rao, 1972 (2) aplj 8 , it is held as follows "in order to show the bona fides of the proposal of the landlord to commence the business it is not necessary that he should have made all the necessary arrangements unless the premises itself is available for occupation, the landlord would not be in a position to make any other preparation like obtaining the licence or placing orders for the supply of goods in fact make any other preparation for commencing the business the claim of bona fides when asserted by the landlord can be demolished by the tenant by proving some positive acts like letting out the premises in the occupation of the landlord subsequendy or pressing the tenant for enhancement of the rent for the premises after he had claimed eviction or the like When these facts are not established it cannot be said mat the landlord is not acting bona fide" in Venkatt Penchalaiah v Md Mumruddin, 1980 (1) An WR 164, it is held as follows. "a mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of commencing a new business is not enough and decisive the truth of the assertion and its bona fide character must be established to the satisfaction of the Court The bona fide requirement need not be of absolute necessity It is enough if the requirement is reasonable There is no yardstick for measuring the genuineness of the plea of bona fide requirement Each case necessarily depends upon its own facts what is necessary for the Court to determine is whether the landlord genuinely needs the premises for commencing a new business and whether he makes the demand honesdy and in good faith In other words, the landlord should not be actuated by any oblique motive of realising some other extraneous purpose the Court must therefore be necessarily satisfied in the first instance as to the absence of I any oblique motive or mala fide on the part of the landlord before it is satisfied as to the positive existence of bona fide requirement of the premises by the landlord The claim of bona fides asserted by the landlord can be demolished by the tenant by proving some positive facts like letting out some other premises in the occupation of the landlord subsequendy or pressing the tenant for enhancement of the rent for the premises in question Once the Court is satisfied that the landlord requires the premises bona fide for starting a new business It is not for the Court to probe into the reasons that prompted the landlord for choosing that particular business or question the prudence or soundness of the proposed venture " there is no evidence to conclude that the petitioner has any oblique motive or mala fides in seeking eviction of the respondent from the premises P Ws 1 and 4 have categorically deposed that they want to occupy the premises to start business in electrical goods and their requirement is true and bona fide. In shaik Pedda Moulah v Srerama Murthy, 1973 APHN 223, it is held as follows "merely because the tenant had been there for a long time and he built up good will and business, it does not mean he can stay there for all time He can seek alternative accommodation and has to give place to the landlord if his need is genuine and bona fide. As long as pnvate ownership is recognized by law and the requirements of the landlord are bona fide and is also reasonable, and it is not also actuated by any oblique or mala fide motive, his claim should prevail, provided that the disadvantage caused to the tenant does not far outweigh the advantage causes to the landlord". In Mohd. Mooruddin v. A. Yadagm, 1982 (2) ALT 154 , it was held as follows. "even in case where there are no lapses on the part of the tenant, still the necessity of the landlord also has been taken care of and in a situation where the landlord establishes the requirement as bona fide for his personal occupation of business the necessity or the inconvenience of the tenant is subordinated to the bona fide requirement of the landlord In a case where the eviction is sought for on the ground of bona fids requirement and if all the ingrethents of bona fide requirement are satisfied the ground of hardship to the tenant does not assume any significant dimension. Even in a situation where there is great hardship to the tenant and equally the bona fide requirement has been proved satisfactorily, the tilt should be in favour of the landlord". It is no doubt true that the revisional powers, as pointed out by the learned counsel for the respondent, are not as wide as appellate powers. But at the same time in a case of this nature where a well- considered order of the Court of first instance had been reversed by the appellate authority and where there is overwhelming evidence in favour of the landlord-revision petition, in my considered opinion, it is a fit case for interference under Section 22 of the Rent Control Act. In fact, as far as Ex B. 1 and also the evidence of P. W. 1 and P. W. 14 in this regard is concerned, it had been well explained and in the light of the admissions made by rw. In fact, as far as Ex B. 1 and also the evidence of P. W. 1 and P. W. 14 in this regard is concerned, it had been well explained and in the light of the admissions made by rw. 1 relating to the employment or otherwise of P W. 4, it cannot be said that the landlord does not require the schedule premises bona fide. Coming to the question of comparative hardship in S. Gopmath Pillai s case, it was held that the consideration of relative hardship of landlord and tenant, which is a mandatory requirement when demised premises is required as additional accommodation, is not relevant consideration to decide whether the requirement of landlord is bona fide for the proposed business under Section 10 (3) (a) (iii) of the rent Control Act. Sri Somakonda Reddy, learned Counsel for the tenant also had not disputed this proposition of law. " in R. C. Tamrakar and another v. Nidi lekha (supra), it was held that while deciding bona fide requirement of the landlord, extraneous consideration not to be taken into account and where tenant had been transferred to another town and he living there with his wife, the averments that suit premises were required for accommodation of ailing grandmother of tenant and his son, who is doing business there, were extraneous consideration. In M. L. Prabhakar v. Rajiv Singal, (supra) it was held that bona fide requirement of landlord and alternative accommodation, a suitability to be determined on basis of the convenience of the landlord and members of his family as well as the totality of the circumstances, including their professions, vocation, lifestyle, habits and background. Strong reliance was also placed on P. S. Pradeep Kaka and others v. Shafee ahmed Saheb (supra) and Akhileshwar kumar and others v. Mustaqim and other (supra ). ( 10 ) RELIANCE was also placed by the counsel representing the tenant on the decisions reported in Vetnuri Somisetti v messors Vagicherla Guravmah and Sons, represented by Sol Partner Vagicherla guravamh (supra) and K Nagappa v td Krishnasa and another (supra ). ( 11 ) THERE cannot be any serious quarrel in relation to the propositions. ( 10 ) RELIANCE was also placed by the counsel representing the tenant on the decisions reported in Vetnuri Somisetti v messors Vagicherla Guravmah and Sons, represented by Sol Partner Vagicherla guravamh (supra) and K Nagappa v td Krishnasa and another (supra ). ( 11 ) THERE cannot be any serious quarrel in relation to the propositions. But however, on facts, the learned Appellate authority came to the conclusion that only in the light of the demand of the enhanced rent and the problems relating thereto, this eviction ;s thought of and there is no bona fide personal requirement at all The findings recorded by the Appellate Authority cannot be said to be either perverse or such findings suffer from any legal infirmity, whatsoever. Hence, the said findings are hereby confirmed. Accordingly, the CRP shall stand dismissed. No costs.