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Andhra High Court · body

2008 DIGILAW 348 (AP)

Garipalli Rajasree v. Kondapuram Mallesha and Brothers, rep. by its Managing Director, K. Mallesha (died) per L. Rs.

2008-06-10

V.V.S.RAO

body2008
ORDER These civil revision petitions filed under Section 22 of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act 1960 (the Act, for brevity), arise out of same proceedings. This common order shall dispose of both the revision petitions. C.R.P.No.1284 of 2004 is filed against order dated 30.1.2004 in R.A.No.240 of 1999 passed by the Chief Judge, City Small Causes Court, Hyderabad, whereby and whereunder learned appellate authority confirmed rejection order of learned Principal Rent Controller in R.C.No.1 of 1997 filed by petitioner (landlady) for eviction of respondent (tenant) from non-residential premises (petition schedule premises or mulgi) bearing NO.7-1-635 (ground floor) situated at Subhash Road, Market Building, Secunderabad. During pendency of R.A.No.240 of 1999, landlady filed I.A.No.1025 of 2002 under Rule 11 (2) of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Rules 1961, requesting to receive documents as additional evidence. The same was dismissed by learned appellate authority by order dated 30.1.2004. C.R.P. NO.1289 of 2004 is filed against the said order. 2. Petitioner, landlady, is owner of petition schedule mulgi bearing NO.7-1-635, having got the same under a Will executed by her mother-in-law. Her husband, Koteswara Rao, is owner of a non-residential mulgi bearing NO.7-1-636 comprising ground floor and first floor. He is carrying on cloth business in the name and style of 'Garipalli Konaiah' in his own premises. This is adjacent to petition schedule mulgi, which was let out to a firm, M/s.Kondapuram Mallesa and Brothers, for cloth business, in the name and style of 'Bombay Cloth Stores'. In August 1978, respondent was inducted as tenant on a monthly rent of RS.720/-. Landlady has three sons, namely, Bharath Kumar, Ashwath Kumar and Santosh Kumar, aged 20 years, 18 years and 17 years respectively. Elder son, Bharath Kumar, was assisting his father in cloth business. She sought eviction of tenant on three grounds, namely, default in payment of municipal taxes (rent), bona fide requirement for personal occupation for starting new business for sons, and tenant securing alternate accommodation. Tenant opposed eviction petition. He alleged that there was no notice to pay municipal tax, that landlady has no financial wherewithal and her sons are not experienced in cloth business and that tenant firm has not secured any alternate accommodation for the firm, though individual partners secured alternate accommodation to provide business facilities to large number of members of joint family. He alleged that there was no notice to pay municipal tax, that landlady has no financial wherewithal and her sons are not experienced in cloth business and that tenant firm has not secured any alternate accommodation for the firm, though individual partners secured alternate accommodation to provide business facilities to large number of members of joint family. Original authority as well as appellate authority held against landlady and dismissed eviction petition. 3. Learned Counsel for petitioner/landlady does not press ground of wilful default in this revision. Indeed as found by both the authorities landlady failed to prove that under tenancy, lessee was required to pay municipal tax and there was no notice to that effect. In addition to this admittedly landlady took Rs.30,000/- as deposit and when tenant has deposited advance rent, question of wilful default does not arise. In these revision petitions, therefore, questions which need to be examined are whether landlady proved her case of personal occupation bona fide for commencing new business by her sons and whether tenant has secured alternate accommodation and for that reason he is liable to be evicted? Bona fide requirement for personal occupation 4. There is no dispute that landlady has three sons. Two are majors; Bharath Kumar and Ashwath Kumar. There is also no dispute that her husband, Koteswara Rao, is owner of adjacent premises NO.7 -1-636 in which he is carrying on cloth business. Landlady alleged that her two sons gained experience working in their father's shop and therefore she required premises for personal occupation. Learned Rent Controller came to the conclusion that requirement of premises for personal occupation is not bona fide. Her husband was examined as P.W.1, her elder son Bharath Kumar as P.W.2 for whose business eviction was sought. Learned Rent Controller disbelieved plea on the ground that landlady has no wherewithal to commence business and that her sons did not have any experience in cloth business. While doing so learned Rent Controller also observed that business of P.w.1 was not flourishing well, that business of tenant was doing well and therefore landlady filed eviction petition. He also observed that landlady failed to produce bills and other papers scribed by her two sons to substantiate allegation that they were assisting their father. In the order of learned appellate authority there is no much discussion on this aspect. 5. He also observed that landlady failed to produce bills and other papers scribed by her two sons to substantiate allegation that they were assisting their father. In the order of learned appellate authority there is no much discussion on this aspect. 5. Learned Counsel submits that when landlady required tenanted premises for personal occupation for commencing business, it is not incumbent on landlady to prove that she has money and that her sons had experience. There is force in the submission. 6. It is well settled that it is always a matter of inference when owner of premises seeks leased premises for personal occupation for commencing business by himself or his relatives. There is nothing wrong in owner of building seeking eviction on that ground. It is not even necessary nor mandatory for the owner to prove that persons for whose business premises is required have knowledge or possess know how. This view is also supported by decision of Supreme Court in Dattatreya Laxman Kamble v. Abdul Rasul Moulali Kotkune1, wherein it was held as follows. 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 in this country 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". (emphasis supplied) 7. In Challaram & Co., v. Pragallapati Adi Kumar and D.Krishna Rao v. K. V.Nayak, this Court held that amount required for the purpose of starting business need not be available on the date of petition nor tenant can question creditworthiness of landlady to start business. (emphasis supplied) 7. In Challaram & Co., v. Pragallapati Adi Kumar and D.Krishna Rao v. K. V.Nayak, this Court held that amount required for the purpose of starting business need not be available on the date of petition nor tenant can question creditworthiness of landlady to start business. Therefore reasons given by authorities below are wholly unsustainable and both the authorities misdirected themselves on this aspect. 8. During pendency of eviction petition tenant filed I.A.No.147 of 1999 for appointment of Advocate Commissioner to inspect premises NO.7 -1-636 comprising ground and first floor and also first floor of petition schedule premises NO.7 -1-635. Tenant's plea was that there is a mulgi in first floor of P.W.1 's premises in addition to another mulgi in the first floor of petition schedule premises belonging to landlady. Advocate Commissioner appointed by learned Rent Controller visited premises and filed a report pointing out that there is a staircase within premises NO.7-1-636 leading towards first floor and that it has also access from eastern side of staircase to first floor of petition schedule premises. There is no door or partition between first floor premises of premises NO.7 -1-636 and petition schedule premises NO.7 -1-635. From this learned Rent Controller came to the conclusion that both first floor mulgis are in possession and occupation of P.W.1 out of which P.W.1's first floor mulgi was being used as office of Cloth Merchants' Association and therefore eviction petition is barred. In a nutshell, learned Rent Controller relied on Section 10(3)(a)(iii)(b) of the Act to come to the conclusion that when landlady has already occupied another non-residential premises, which is her own, she cannot seek eviction of tenant and that the plea of personal occupation bona fide is not proved. Appellate Authority agreed in toto with learned Rent Controller. 9. Learned Counsel for landlady submits that commencing cloth business in first floor is not feasible. Even according to Commissioner's report, there is no direct access to first floor of petition schedule premises and one has to go through first floor premises belonging to PW.1. In such a case eviction petition on the ground that it is barred under Section 10(3)(a)(iii)(b) of the Act is erroneous. He placed reliance on Prativa oevi v. T. V.Krishnan, Shiv Sarup Gupta v. Or. Mahesh Chand Gupta and Ragavendra Kumar v. Firm Prem Machinery & Co.5. 10. In such a case eviction petition on the ground that it is barred under Section 10(3)(a)(iii)(b) of the Act is erroneous. He placed reliance on Prativa oevi v. T. V.Krishnan, Shiv Sarup Gupta v. Or. Mahesh Chand Gupta and Ragavendra Kumar v. Firm Prem Machinery & Co.5. 10. In Prativa Oevi (4 supra), it was held as below. The landlady is the best judge of her residential requirement. She has a complete freedom in the matter. It is no concern of the courts to dictate to the landlady how, and in what manner, she should live or to prescribe for her a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlady of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances. (emphasis supplied) 11. In Shiv Sarup Gupta (5 supra), it was held as below. The availability of an alternative accommodation with the landlady i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlady if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the court drawing an inference that the need of the landlady was not a felt need or the state of mind of the landlady was not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of subsection (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlady, would not be satisfied. Secondly, another principal ingredient of clause (e) of subsection (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlady, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the court has to ask the landlady why he is not occupying such other available accommodation to satisfy his need. The landlady may convince the court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlady has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlady, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlady is seeking eviction. Convenience and safety of the landlady and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlady and his family members, their style of living, their habits and the background wherefrom they come. (emphasis supplied) 12. In Ragavendra Kumar (6 supra), Supreme Court held that landlady is best judge of her requirement for residential or business purpose, that she has got complete freedom in the matter and that if landlady wants to evict tenant from the premises for starting business, as it was suitable, the same cannot be faulted. 13. The law therefore does not admit any doubt that even if landlady has some other non-residential premises or one of her relatives has such premises, she can still seek eviction of tenant for commencement of business. It is not for tenant to suggest that available non-residential space is enough for landlady to commence business and on that ground raise a plea that requirement for personal occupation is not bona fide. In the present case, after receiving report of Advocate Commissioner, learned Rent Controller came to the conclusion that landlady can commence business for her son on first floor of petition schedule premises and that even if there is no convenient access to said first floor premises, it is not sufficient ground to seek eviction of tenant occupying first floor. In the present case, after receiving report of Advocate Commissioner, learned Rent Controller came to the conclusion that landlady can commence business for her son on first floor of petition schedule premises and that even if there is no convenient access to said first floor premises, it is not sufficient ground to seek eviction of tenant occupying first floor. When it has come on record that first floor premises of petition schedule has no direct access except through first floor of premises No.7-1-636, reasoning given by learned Rent Controller is erroneous. The inference drawn with reference to availability of first floor of petition schedule premises and denying relief for those reasons is misdirection in law,. The same is unsustainable. 14. A prudent businessman would seldom plan a cloth business in a first floor building especially when such business is conventional one, not the type of mega cloth/ readymade garments shop, which are coming up in retail sector. Here a reference may be made to Ohannalal v. Kalawatibaf. In the said decision, Kalawatibai along with her two sons succeeded to a building, after death of her husband. By that time there were two tenants occupying ground floor for business.