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2007 DIGILAW 1078 (AP)

Amir Ali v. Maneck H. Ghadiali

2007-11-02

L.NARASIMHA REDDY

body2007
ORDER:- Respondents filed RC No.207 of 1991, against the petitioners, before the Principal Rent Controller, Secunderabad, seeking eviction. As many as five grounds under the relevant clauses of Section 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short "the Act"), were pleaded. It was alleged that the petitioners: (a) have sub-let the premises to the third parties; (b) committed acts of waste, impairing the utility of the building; (c) secured alternative accommodation for their business; (d) committed wilful default in payment of the rent from July 1992 to March 1994; and that (e) the premises are needed for respondent No.1 to start business; The case was opposed by the petitioners; by filing counter. Through its order dated 30.7.2004, the learned Rent Controller, directed eviction of the petitioners, on the ground that the premises are needed for bona fide requirement of the respondents and that the petitioners committed wilful default, in payment of rent. Other grounds pleaded by the respondents were rejected. 2. While the petitioners filed R.A. No.208 of 2004, before the Chief Judge, City Small Causes Court, Hyderabad, directing eviction, the respondents filed R.A. No.240 of 2004, feeling aggrieved by the rejection of the other grounds for eviction. Through a common judgment dated 9.7.2007, the learned Chief Judge sustained the eviction of the petitioners, on the ground that there is bona fide requirement of the premises for respondent No.1, to start his r business. The finding on the allegation as to the wilful default was set aside. A finding was recorded in R.A. No.240 of 2004, to the effect that the petitioners e have secured alternative accommodation. This CRP is filed against the order in R.A. No.208 of 2004. The record does not o disclose that any revision was filed against the order in R.A. No.240 of 2004. 3. Sri S. Balchand, learned Counsel for the petitioners, submits that the findings recorded by the learned Rent Controller and the Appellate Authority, either concurrently or independently, are unsustainable in law and on facts. He submits that possession of the premises was secured, about three decades ago by the respondents, by pleading bona fide personal requirement, and thereafter, they leased the premises to the petitioners. He submits that the alternative premises, mentioned by the respondents, are owned and held by the wife of the 1st petitioner, and therefore, it cannot constitute a basis for eviction. He submits that the alternative premises, mentioned by the respondents, are owned and held by the wife of the 1st petitioner, and therefore, it cannot constitute a basis for eviction. Learned Counsel further submits that under the lease deed, petitioners are entitled to remain in possession upto the year 2013, and the very institution of the eviction petition was unsustainable in law. 4. Sri T. Mohan Rao, learned Counsel for the respondents, on the other hand, submits that the Courts below have based their findings on the voluminous evidence that was adduced by the petitioners and respondents, and that the petitioners have been harassing respondents, for the past several decades. He pleads that the bona fide requirement of the 1st respondent was established beyond any pale of doubt. He submits that the record clearly discloses that the petitioners secured alternative premises, immediately adjoining the schedule premises, and apart from that, they are doing lucrative business in other parts of the city. Learned Counsel submits that on account of the failure of the petitioners to file a revision against the order in R.A. No.240 of 2004, this CRP is hit by the principle of res judicata. 5. As observed earlier, the respondents urged as many as five grounds, while seeking eviction of the petitioners. On their part, PWs.1 and 2 were examined as witnesses and Exs. P.1 to P.42 were marked. The 1st petitioner deposed as RW.1 and Exs. R.1 to R.221 are marked. Out of them, Exs. R.14 to R.221 are money order receipts and the return of money order coupons. The Rent Controller found that there is a bona fide requirement of the premises for the 1st respondent, and that the petitioners committed wilful default. The second ground of eviction did not find favour with the appellate authority. In addition to sustaining the order of eviction, on the first ground, the appellate authority supplemented it by a finding on a ground pleaded under Section 10(2)(v) of the Act, viz., that the petitioner secured alternative accommodation. 6. So far as the plea of bona fide requirement is concerned, the 1st respondents pleaded that he intends to establish a workshop in the premises. He stated that he is a qualified Turner and passed certificate examination, in that branch. 6. So far as the plea of bona fide requirement is concerned, the 1st respondents pleaded that he intends to establish a workshop in the premises. He stated that he is a qualified Turner and passed certificate examination, in that branch. It has also come on record that the respondents have no other accommodation, except the schedule premises in the twin cities of Hyderabad and Secunderabad. This ground was sought to be countered by the petitioners, by alleging that it was only a ruse to compel them to enhance the rent. Though such a plea was taken in the counter-affidavit, it has not been substantiated in the evidence. No instances• of the respondents demanding higher rent were stated. The other technical objections raised by the petitioners, in this regard, were met by drawing support to the judgment of this Court in M Sadiq Vali v. P. Laxmamma, 1998 (1) ALD 353 = 1998 (2) ALT 79 , V. Lokanadha Reddy v. D. Nagarathnamma, 2001 (6) ALD 643 and other decided cases. This Court is not inclined to interfere with the same. 7. The allegation that the possession of the premises was secured on an earlier occasion, by pleading the same ground, cannot bind the first landlord, who had acquired the relevant qualifying examination only in the recent past. The Courts below have also assessed the relative hardship that may be caused to the petitioners, in the event of their being evicted on the ground of bona fide requirement. It was found that the petitioners as well as wife of the 1st petitioner are doing business on the same lines, at various parts of the city. The petitioners are not able to convince this Court to disturb the concurrent finding, on this aspect. 8. Though the Rent Controller did not agree with the plea of the respondents that the petitioners secured alternative premises, the appellate authority reversed that finding, upholding the contention of the respondents. Extensive discussion was undertaken and several admissions made on behalf of the petitioners, as regards their acquiring alternative premises, were taken into account. It is apt to extract Paragraphs 48 and 49 of the judgment of the appellate authority: "48. Admittedly the first tenant and his wife own a building adjacent to the schedule premises. Extensive discussion was undertaken and several admissions made on behalf of the petitioners, as regards their acquiring alternative premises, were taken into account. It is apt to extract Paragraphs 48 and 49 of the judgment of the appellate authority: "48. Admittedly the first tenant and his wife own a building adjacent to the schedule premises. The first tenant (RW.) has deposed in his cross-examination at page No.21 that he has not constructed the neighbouring building of Lords Furniture, adjoining the petition schedule premises but his wife has constructed the same. His wife is the sole proprietor of Lords Furniture since 1992. He has been doing the business in the petition schedule premises and takes lunch and rest with her in the above said adjoining building. He refuted a suggestion that he has got two big shops at Hyderabad and he has been running the furniture business under the name and style of Lords Furniture and Landmark Furniture. He volunteered that his wife has got those shops and he goes to the said shops at Hyderguda and she comes to his shop i.e., schedule premises at Parklane. He admitted in his cross examination at Page No.25 that the petition schedule premises and the properties purchased by him and his wife, are in the same lane. He refuted a suggestion that he has made some additional constructions in the above said adjoining schedule premises, in the ground, first, second and cellar portions. He added that his wife renovated the said building consisting of ground, first and second floors, adjacent to the petition schedule premises and his wife has been carrying on the business in her building. He refuted a suggestion that the plinth area of the building of his wife is four times bigger than the plinth area of the petition schedule premises. He has refuted another suggestion that to avoid eviction on the ground of securing alternative accommodation, he has created the sale deeds alleged to have been executed by him and his wife. 49. It is not at all the version of the first tenant that his wife has independent source of income to purchase the western side of the building adjoining the schedule premises and on the main road. The first tenant deposed that his wife has been running furniture shops under the name and style of Lords Furniture and Landmark Furniture at Hyderguda. The first tenant deposed that his wife has been running furniture shops under the name and style of Lords Furniture and Landmark Furniture at Hyderguda. He did not choose to file any document to prove that his wife has been running the said business in a rented premises and she had independent source of income to purchase the building adjacent to the schedule premises." These findings accord with the principle laid down by this Court in MA. Roof v. Mohd. Ghouse, 2004 (3) ALD (NOC) 198 and K.V.S.S. Prasad Rao v. Godavari Bai, 1998 (2) ALD 222 = 1998 (1) ALT 799 . Petitioners did not choose to file a revision against the order in RA. No.240 of 2004, in which this ground was upheld. Therefore, the finding became final against them. Strictly speaking, the failure to file a revision against the order in RA. No.240 of 2004 would operate as res judicata, vis-a-vis the order in RA. No.208 of 2004. 9. The plea raised on behalf of the petitioners that the eviction proceedings were initiated, even during subsistence of the lease, cannot be accepted, in view of the rejection of the plaints, in the suits filed by the petitioners herein, for the relief of specific performance of the agreement for extension of the lease. 10. Viewed from any angle, this Court does not find any basis to grant any relief to the petitioners in this CRP, and it is accordingly dismissed, by imposing costs of Rs.5,000/- (Rupees five thousand only). 11. The learned Counsel for the petitioners made a request to this Court to grant reasonable time to his clients, to vacate the premises. This request is strongly opposed by the learned Counsel for the respondents. 12. Having regard to the fact that the petitioners have to relocate their business from the existing premises, they are granted time till 31.1.2008, on condition that the petitioners: (a) deposit the costs awarded against them in this CRP, as well as in the other proceedings decided today, within four weeks from today. (b) file an undertaking before this Court, to the effect that they would put the respondents in vacant possession of the premises, on or before 31.1.2008; and (c) pay the rents regularly, and clear the arrears, if any.