Sree Datta Agencies, represented by its Proprietor v. Dinesh Kumar Kucheria, S/o. Pusalal
2008-06-10
V.V.S.RAO
body2008
DigiLaw.ai
ORDER: This civil revision petition is filed under Section 22 of Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act 1960 (the Act, for brevity), against reversing order of appellate authority whereby and whereunder petitioner/tenant was ordered to be evicted. 2. Shree Datta Agencies is proprietary concern engaged in wholesale business in drugs and pharmaceuticals. Its proprietor Gopikishan Bhangdia took premises bearing No.4-4-233/1, Inderbagh, Sultan Bazar, Hyderabad (hereafter called, petition schedule premises), from Smt.M.V.Vijaya Lakshmi, on a monthly rent of Rs.225/-. Premises was sold to Smt.Sakunthala Bai Chhajed, who is sister of Dinesh Kumar Kucheria. In turn Smt.Sakunthala Bai Chhajed sold premises to her brother, under registered sale deed dated 22.1.1987. After said purchase, Dinesh Kumar Kucheria (hereafter called, landlord) issued a legal notice to Gopikishan Bhangdia (hereafter called, tenant) seeking vacation on the ground of personal occupation for opening office of Chartered Accountant (CA). Tenant by reply dated 22.4.1988 rejected request of landlord. Whereafter landlord requested for payment of rent to him alone. Sometime thereafter, landlord constructed first and second floors on petition schedule premises. In 1993, eviction petition being R.C.No.771 of 1993 was filed seeking eviction of tenant on three grounds, namely, bona fide requirement for personal occupation, mala fide denial of title by tenant, and tenant secured alternative accommodation and failed to occupy tenanted premises for four months. 3. Learned Rent Controller framed three points for consideration, namely, (i) Whether tenant denied title of landlord; (ii) Whether tenant secured alternative accommodation and ceased to occupy premises from February 1993 onwards; and (iii) Whether landlord personally requires for bona fide commencement of office. On all these points findings were recorded in favour of tenant and eviction petition was rejected. On appeal by landlord, learned Additional Chief Judge, City Small Causes Court (appellate authority) reversed findings of learned Rent Controller on all the three points and allowed eviction petition directing tenant to vacate premises within two months. This order is assailed in this revision petition. In this revision, three points which were considered by original authority as well as appellate authority can be treated as points for consideration. Scope of appellate power 4. Before considering three points, one after the other, a submission raised by tenant with regard to appellate power conferred on Additional Chief Judge, City Small Causes Court, needs to be disposed of.
In this revision, three points which were considered by original authority as well as appellate authority can be treated as points for consideration. Scope of appellate power 4. Before considering three points, one after the other, a submission raised by tenant with regard to appellate power conferred on Additional Chief Judge, City Small Causes Court, needs to be disposed of. Learned Senior Counsel vehemently contends that appellate power conferred under Section 20 of the Act is not akin to nor can be equated with appellate power conferred on a civil Court under Section 96 and Order XLI of Code of Civil Procedure 1908 (CPC). He would urge that power conferred on learned Rent Controller under Section 10(2)(iv) read with Section 10(2) of the Act cannot be exercised by appellate authority. According learned Senior Counsel, order passed by learned Rent Controller does not merge with order passed by appellate authority, and therefore, when original authority dismissed eviction petition, appellate authority in exercise of power under Section 20(3) of the Act cannot order eviction. He would further urge that the order of learned Rent Controller shall be final subject to decision of appellate authority and/or revisional authority but no such power is conferred on appellate authority to reverse order of learned Rent Controller. In support of this submission, he placed reliance on Marrapu Venkata Swamy v Nadipalli Ramamohan Rao1 and Kunhayammed v State of Kerala2. Opposing the submission, learned Counsel for respondent/landlord submits that no such plea was taken before authorities below and therefore tenant cannot be permitted to take such a plea before revisional authority. Secondly he submits that under Section 20(3) read with Section 20(4) of the Act, appellate authority has all powers of Rent Controller and therefore even when an eviction petition is rejected by Rent Controller, appellate authority can allow eviction petition and order eviction. He placed reliance on Sri Raja Lakshmi Dyeing Works v Rangaswamy Chettiar3 and Lachhman Dass v Santokh Singh. 5. As distinguished from original jurisdiction, appellate jurisdiction is exercised to review judgment of lower Court. The source of appellate jurisdiction, however, is always by way of a statutory intervention and no person, who has a remedy in original jurisdiction, can claim right of appeal as a matter of course. The appeal, therefore, is a proceeding which is brought before competent appellate authority and ordinarily in continuation of original proceedings.
The source of appellate jurisdiction, however, is always by way of a statutory intervention and no person, who has a remedy in original jurisdiction, can claim right of appeal as a matter of course. The appeal, therefore, is a proceeding which is brought before competent appellate authority and ordinarily in continuation of original proceedings. Subject to certain statutory limitations, appellate authority has a duty to review and appreciate entire record before either upholding or reversing order of original authority (see Sections 1 to 7, Volume 2, American Jurisprudence - 'Appeal and error', pp.843, 848). 6. In Words and Phrases (Permanent Edition Volume 3A, p.281), "appeal" is explained as under. An "appeal" is a process of civil law origin and removes a cause entirely, subjecting the fact as well as the law to a review and retrial, and is, in fact, the granting of a new trial on the same issue in a higher court. ... ... ... ... Generally, a 'hearing de novo" means a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing, differing from ordinary appeal wherein proceedings in lower court are reviewed and their validity determined by the reviewing court. ... ... ... ... since on hearing "de novo" court hears matter as court of original and not appellate jurisdiction wherein determination binds parties and nullifies former determination. (emphasis supplied) 7. In Evans v Bartlam5, a question arose as to whether an appellate Court should not interfere with exercise of judicial discretion by the Court exercising original jurisdiction. Though multiple opinions were given, House of Lords (lead opinion by Lord Atkin) unanimously agreed with the following view. Appellate jurisdiction is always statutory: there is in the statute no restriction upon the jurisdiction of the Court of Appeal: and while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it. 8. In Lachmeshwar v Keshwar Lal6, a question arose as to whether appellate Court could give relief under Section 7 of Bihar Money-lenders Act 1938.
8. In Lachmeshwar v Keshwar Lal6, a question arose as to whether appellate Court could give relief under Section 7 of Bihar Money-lenders Act 1938. It was argued therein by creditor that when hearing appeal, Court was concerned to see whether or not judgment of lower court was in conformity with law as it stood at the time of judgment and therefore it was not competent to give relief under Section 7. The argument was negatived. It was observed that. In view of these provisions, it seems to me to make no difference that it is not explicitly stated in the Indian statutes (as in O.58, Supreme Court Rules that an appeal is by way or re-hearing. It is also on the theory of an appeal being in the nature of a re-hearing that the Courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. (emphasis supplied) 9. The above view was affirmed by Supreme Court in M.M.Quasim v Manohar Lal Sharma7. In Sri Raja Lakshmi Dyeing Works (supra), Supreme Court explained distinction between 'appeal' and 'revision' in the following manner. "Appeal" and "revision" are expressions of common usage in Indian statute and the distinction between "appellate jurisdiction" and "revisional jurisdiction" is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice.
The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising Tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. (emphasis supplied) 10. Yet again in Lachhman Dass (supra), Apex Court observed as under. This Court in the case of Hari Shankar v. Rao Girdhari Lal Chowdhury ( AIR 1963 SC 698 ) had an occasion to consider the question of distinction between an appeal and a revision and Hidayatullah, J. (as he then was) speaking for the Court observed at p. 939 of the report as follows: (SCR p.939) "The distinction between an appeal and revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right to appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law." In the case of State of Kerala v. K.M. Charia Abdullah & Co., ( AIR 1965 SC 1585 ) this Court expressed the view that when the Legislature confers a right to appeal in one case and a discretionary remedy of revision in another, it may be deemed to have created two jurisdictions different in scope and content. Again in the case of Neta Ram v. Jiwan Lal ( AIR 1963 SC 499 ) Hidayatullah,J. (as he then was) speaking for the Court observed that the revisional jurisdiction of the High Court do not include the power to reverse concurrent findings, without showing how those findings are erroneous. 11. Principle of law may be taken as well settled that when appellate power is conferred on a legal forum without putting any falters, it is to be inferred that the appeal is continuation of original proceedings.
11. Principle of law may be taken as well settled that when appellate power is conferred on a legal forum without putting any falters, it is to be inferred that the appeal is continuation of original proceedings. In such a case original proceeding stands removed to jurisdiction of appellate authority, who will exercise all powers of original authority in applying procedural law as well as granting relief. However if the language of provision conferring appellate power is used in a restrictive manner in the sense that appeal is provided either on a question of law or in the event of there being errors of law, still appellate Court can exercise all the powers of original authority. If appellate authority is deprived of power to correct errors of original authority and grant relief to aggrieved, very grant of appellate power would be rendered useless. In the absence of clear intention of legislature to restrict power of appellate authority either in dealing with matter or in granting relief, it is not possible to read appellate provision in a restrictive manner. Section 20 of the Act reads as under. 20. Appeal:-- (1) Any person aggrieved by an order passed by the Controller may, within thirty days, from the date of such order, prefer an appeal in writing to the Chief Judge, Small Causes Court in the cities of Hyderabad and Sec'bad and elsewhere to the Subordinate Judge of if there are more than one Subordinate Judge, to the Principal Subordinate Judge having original jurisdiction over the area aforesaid. In computing the said period of thirty days the time taken to obtain a certified copy of the order appealed against shall be excluded. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal. (3) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal. Explanation:-- The appellate authority may, while confirming the order of eviction passed by the Controller grant an extension of time to the tenant for putting the landlord in possession of the building.
Explanation:-- The appellate authority may, while confirming the order of eviction passed by the Controller grant an extension of time to the tenant for putting the landlord in possession of the building. (4) The decision of the appellate authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law, except as provided in Section 22. 12. A plain reading of subsections (1) to (4) of Section 20 of the Act would show that there are no restrictions on appellate authority to reverse or modify order of Rent Controller as suggested by learned Senior Counsel. Subsection (1) confers appellate jurisdiction on Chief Judge, Small Causes Court, in Hyderabad and Subordinate Judge in Moffusil areas. Appellate authority shall have incidental power of granting stay of original order even in the absence of any such provision. So as to make it explicit, legislature enacted subsection (2) empowering to stay original proceedings. Reading subsection (3) with explanation and subsection (4) together would clearly show that appellate authority has to conduct de novo enquiry and may either reverse or confirm order of Rent Controller. When appellate authority exercises jurisdiction conferred under Section 20(1), all the powers under Sections 10(2) and 10(3), which inher in Rent controller, are available to appellate authority. Explanation makes it very clear that while confirming the order of eviction it is always open to appellate authority to extend time for tenant to put landlord in possession of building. When subsection (4) to Section 20, stipulates that decision of appellate authority and subject to such decision order of Rent Controller shall be final and shall not be called in question except by way of revision under Section 22 of the Act, it only means that whatever be the order of Rent Controller, it can only be final subject to decision of appellate authority. For instance, if Rent Controller passed an order of eviction and appeal is filed, till appeal is decided, order of Rent Controller cannot be executed if appellate authority stayed execution. In case order of eviction is set aside and eviction petition is dismissed, eviction order of Rent Controller cannot be enforced nor executed. The submission of learned Senior Counsel therefore cannot be accepted. 13.
In case order of eviction is set aside and eviction petition is dismissed, eviction order of Rent Controller cannot be enforced nor executed. The submission of learned Senior Counsel therefore cannot be accepted. 13. For the same reasons, submission that appellate authority can only confirm order of Rent Controller and cannot reverse in case of dismissal of eviction petition is to be rejected. A perusal of subsection (4) of Section 20 of the Act would show that order of appellate authority is subject to any decision of High Court under Section 22 of the Act. Under Section 22, it is competent to High Court to pass, "such order in reference thereto". In appropriate case, when High Court can reverse order of appellate authority and restore order of original authority, Section 20 cannot be read in a narrow manner. Furthermore Section 15 of the Act which deals with execution petitions also makes order passed by appellate authority or revisional authority executable. If appellate authority is assumed to have limited jurisdiction of only confirming dismissal orders of Rent Controller, there would not have been any necessity for legislature to say in so many words in Section 15 of the Act that even an order of appellate authority is executable. Interpretation suggested by learned Senior Counsel is not acceptable and indeed it is not possible to interpret Section 20 of the Act restricting power of appellate authority. Therefore this Court holds that appellate authority under Section 20(1) of the Act, in exercise of powers under Subsections (3) and (4) of Section 20 of the Act, can confirm, reverse or modify order of Rent Controller. Denial of title of landlord 14. Rent control legislation recognizes right of a tenant to deny title of landlord. Restriction however is that such denial should be bona fide. In other words, if a tenant mala fide denies title of landlord or claims right of permanent tenancy which is not bona fide, it is a ground of eviction (Section 10(2)(vi) of the Act). As per Section 2(vi) of the Act, "landlord" means owner of building. The term "landlord" also includes a person receiving rent whether on his own and/or on behalf of another person or as an agent. Therefore legislature has taken a great care not to evict a tenant who bona fide disputes title of a person who claims title.
As per Section 2(vi) of the Act, "landlord" means owner of building. The term "landlord" also includes a person receiving rent whether on his own and/or on behalf of another person or as an agent. Therefore legislature has taken a great care not to evict a tenant who bona fide disputes title of a person who claims title. A situation may arise that a landlord who has inducted a person as a tenant may subsequently lose title or a third party may successfully set up title demanding payment of rent. Then, a disputed title confronts tenant and he can always take a plea that the person who is seeking to evict him is not owner of building. In that eventuality, as per proviso to Subsection (1) of Section 10 of the Act, Rent Controller has to decide whether denial is bona fide or not. If answer is in the affirmative, landlord has to sue for eviction of tenant in a civil Court. To say differently if denial of title of eviction petitioner is bona fide, Rent Controller has no jurisdiction to order eviction. Remedy of landlord is to approach civil Court for eviction. If denial of title is not bona fide, it is a ground for eviction of tenant. 15. When legislature attaches considerable importance to the ground of "denial of title of landlord" and takes abundant care in using language with great precision, it is always reasonable to infer that denial so as to be rendered mala fide must be precise, clear and categorical. Vague allegations or assertions with regard to transfer of tenanted premises from one landlord to other landlord or purchase of premises while tenancy is in existence cannot be treated as mala fide denial of title. Though provisions of CPC stricto senso are not applicable to the proceedings of Rent Controller (see Amrutlal v Principal Rent Controller8 and Binodlal Sagarmal v Prem Prakash Gupta9), a reference may be made to Rules 3, 4 and 5 of Order VIII CPC. Conspectus of these rules is that an opposite party has to specifically deny each allegation and every allegation of fact in the plaint if not denied specifically or by necessary implication, shall be taken to be admitted.
Conspectus of these rules is that an opposite party has to specifically deny each allegation and every allegation of fact in the plaint if not denied specifically or by necessary implication, shall be taken to be admitted. Therefore if a tenant merely alleges that the sale of tenanted premises during subsistence of lease was transferred by original landlord to subsequent landlord, with an intention to evict tenant, the same cannot be treated as denial of title. The attention of this Court is invited to pleadings of tenant especially to paragraphs 5, 6 and 10, to contend that tenant denied title of landlord. A perusal of these pleadings however does not even remotely suggest that there was such specific denial of title. Even in eviction petition such a plea was not taken though such plea was raised in rejoinder. Even if landlord in his rejoinder has made such suggestive pleadings of denial of title by opposite side, it does not strengthen case of landlord. 16. Furthermore, there is no denial or dispute that two years after purchase of property from his sister, landlord sent a notice dated 19.4.1989 to which tenant sent a reply notice on 22.4.1989 expressing his difficulty in vacating premises as requested. Nonetheless tenant continued to pay rents and even in reply notice referred to herein, he did not take plea denying title. Indeed there is no such denial by tenant. Dealing with this aspect of the matter, learned Rent Controller recorded a finding that tenant admitted ownership of landlord and paid rent. Learned appellate authority however misdirected himself and reading certain words and phrases in the pleading out of context came to the conclusion that there is mala fide denial of title. This Court observes that even if tenant uses terms like "property was transferred simply and/or the present landlord is benami landlord", such pleas do not amount to denial of title. Therefore, on this point, finding is recorded in favour of petitioner/tenant and against respondent/landlord. Tenant secured alternative accommodation and ceased to occupy tenanted premises 17. (i) Whether tenant secured alternative accommodation for business? This is first aspect of the point. It is not denied by tenant that he and his son are promotee Directors of Drugs and pharmaceutical marketing company known as M/s.Trimoorthi Pharma Pvt Ltd (hereafter called, Trimoorthi).
Tenant secured alternative accommodation and ceased to occupy tenanted premises 17. (i) Whether tenant secured alternative accommodation for business? This is first aspect of the point. It is not denied by tenant that he and his son are promotee Directors of Drugs and pharmaceutical marketing company known as M/s.Trimoorthi Pharma Pvt Ltd (hereafter called, Trimoorthi). It is also not denied by tenant that a non-residential premises bearing No.4-4-231/A, which was purchased by his daughter-in-law, is registered office and business premises of Trimoorthi. On this aspect evidence was also let in by landlord to show that Trimoorthi is a closely held company of tenant and his family members. From this, a case is sought to be made out for eviction under first part of Section 10(2)(v) of the Act. Landlord argued that even though premises No.4-4-231/A belongs to daughter-in-law of tenant and even though Trimoorthi is an incorporated company, occupying said premises, in law it should be treated as an alternative accommodation secured by tenant. Learned Counsel placing reliance on decisions which deal with principle of 'lifting veil in corporate law'10, submits that admittedly Shree Datta Agencies is joint family business and when alternative accommodation was purchased by one of the members of joint family, premises which was let out to incorporated company promoted by joint family members, applying principles of lifting veil, it must be held that alternative accommodation is secured by tenant. Learned Senior Counsel appearing for tenant strongly objects to apply said principles. His contention is that when it is not shown that Trimoorthi was floated to defeat any purpose of Rent Control Act, principle of lifting veil cannot be applied. 18. In Words and Phrases (Volume 32A p.84) "piercing the corporate veil" is explained as, "the Court's unwillingness to permit corporate persons and action divert judicial course for applying law to ascertain facts". This principle permits to show individual hiding behind corporation is liable to discharge obligations. The separate entity of corporation is ignored though in general law corporation itself - as distinguished from its shareholders and directors - is separate juristic person. To apply law to ascertain facts, the Court can ignore such juristic personality and haul-up directors to discharge legal obligations.
This principle permits to show individual hiding behind corporation is liable to discharge obligations. The separate entity of corporation is ignored though in general law corporation itself - as distinguished from its shareholders and directors - is separate juristic person. To apply law to ascertain facts, the Court can ignore such juristic personality and haul-up directors to discharge legal obligations. When corporate veil is lifted, it means the Court is assuming that such entity is a sham to perpetuate fraud, to avoid liability, to avoid effect of statute and to avoid obligations under an agreement. The principle is invoked only occasionally in order to find out substance only where it is permitted by statute or in exceptional cases of fraud. In Life Insurance Corporation of India v Escorts Limited11, Supreme Court illustratively pointed out situations where corporate law principle of lifting the veil can be applied by a Court, namely, (i) where statute itself contemplates lifting the veil; (ii) where fraud or improper conduct is to be prevented; (iii) where a taxing statute or benefiting tax is sought to be evaded; and (iv) where group companies are inextricably connected as to be part of one concern. 19. In Kapila Hingorani (supra), Supreme Court reiterated following principles dealing with lifting corporate veil. " ... It is now well settled that the corporate veil can in certain situations be pierced or lifted. The principle behind the doctrine is a changing concept and it is expanding its horizon as was held in State of U.P. v. Renusagar Power Co.12. The ratio of the said decision clearly suggests that whenever a corporate entity is abused for an unjust and inequitable purpose, the court would not hesitate to lift the veil and look into the realities so as to identify the persons who are guilty and liable therefor. ... ... The proposition that a company although may have only one shareholder will be a distinct juristic person as adumbrated in Salomon v. Salomon and Co.13, has time and again been visited by the application of doctrine of lifting the corporate veil in revenue and taxation matters. (See Dal Chand and Sons v. CIT 14 and Juggilal Kamlapat v. CIT 15.) ... ... The corporate veil indisputably can be pierced when the corporate personality is found to be opposed to justice, convenience and interest of the revenue or workman or against public interest.
(See Dal Chand and Sons v. CIT 14 and Juggilal Kamlapat v. CIT 15.) ... ... The corporate veil indisputably can be pierced when the corporate personality is found to be opposed to justice, convenience and interest of the revenue or workman or against public interest. (See CIT v. Sri Meenakshi Mills Ltd.16, Workmen v. Associated Rubber Industry Ltd.17, New Horizons Ltd. v. Union of India18, State of U.P. v. Renusagar Power Co.19, Hussainbhai v. Alath Factory Thezhilali Union20 and Secy., H.S.E.B. v. Suresh 21." 20. In New Horizons Ltd (supra) (NHL, for short), pursuant to a notice inviting sealed tenders for printing telephone directories in English for three years NHL and four others filed their tenders. NHL offered royalty amount of Rs.459.90 lakhs whereas M/s M&N Publications Ltd (MNPL) offered Rs.95 lakhs. On the ground that NHL has no expertise in database processing, publishing, printing and marketing, their tender was treated as non-responsive. Contract was awarded to MNPL. NHL unsuccessfully challenged award of contract before Delhi High Court. Supreme Court allowed the appeal. It was contended that NHL was a joint venture company established by Thomson Press (India) Limited and other foreign companies with 60% share of Indian companies and 40% share of foreign companies and that the same has been established with expertise in database processing, publishing, sales/marketing and the dissemination of related information of its joint venture partners. NHL therefore argued that authorities should have lifted corporate veil to see reality. Supreme Court countenanced submission of NHL. Referring to Gower's Principles of Modern Company Law, it was laid down as under. It cannot be disputed that, in law, a company is a legal entity distinct from its members. It was so laid down by the House of Lords in 1897 in the leading case of Salomon v. Salomon & Co. Ever since this decision has been followed by the courts in England as well as in this country. But there have been inroads in the doctrine of corporate personality propounded in the said decision by statutory provisions as well as by judicial pronouncements. By the process, commonly described as "lifting the veil", the law either goes behind the corporate personality to the individual members or ignores the separate personality of each company in favour of the economic entity constituted by a group of associated companies.
By the process, commonly described as "lifting the veil", the law either goes behind the corporate personality to the individual members or ignores the separate personality of each company in favour of the economic entity constituted by a group of associated companies. This course is adopted when it is found that the principle of corporate personality is too flagrantly opposed to justice, convenience or the interest of the Revenue. (emphasis supplied) 21. Supreme Court approvingly quoted four different aspects of the principle as noticed in judicial pronouncements. These are: (i) Peeping behind the veil; (ii) penetrating the veil; (iii) extending the veil; and (iv) ignoring the veil. Their Lordship also held that it is permissible to lift the veil to look behind faade of company and its place of registration in order to determine its residence and to know central management and control. 22. Applying the above principles to the facts of the present case, following factors become relevant. Shree Datta Agencies (proprietary concern) is a joint family business. This pre-supposes that proprietor, his wife, sons and daughters-in-law are members of joint family having a stake in Shree Datta Agencies. One of the members of the joint family, (daughter-in-law of Gopikishan Bhangdia) Kiran Bhangdia, purchased premises bearing No.4-4-231/A in the same locality where Shree Datta Agencies is carrying on wholesale business in drugs and pharmaceuticals. Nextly Gopikishan Bhangdia and his sons floated Trimoorthi as a limited company showing daughter's-in-law premises as registered office. Therefore in effect male members of joint family, who have a stake in proprietary concern, are themselves promotee Directors of Trimoorthi. If one goes behind corporate veil and ignores corporate personality of Trimoorthi, it becomes clear that it is an extension of proprietary business, though it has a different faade of being a company. 23. Admittedly Kiran Bhangdia purchased premises No.4-4-231/A in the same locality some time after proprietary business was commenced in petition schedule premises. Business carried on by Trimoorthi is also wholesale business in drugs and pharmaceuticals. Furthermore tenant admitted in evidence that name boards of proprietary concern and Trimoorthi have the same logo and they are sister concerns.
23. Admittedly Kiran Bhangdia purchased premises No.4-4-231/A in the same locality some time after proprietary business was commenced in petition schedule premises. Business carried on by Trimoorthi is also wholesale business in drugs and pharmaceuticals. Furthermore tenant admitted in evidence that name boards of proprietary concern and Trimoorthi have the same logo and they are sister concerns. As noticed supra corporate veil can be pierced where statute permits, where fraud is to be prevented, where a taxing statute is defeated or where group companies are inextricably connected as part of one concern (see Escorts Limited (supra)), and it is unjust and inequitable not to do so. In other words, if justice and equity requires that corporate veil should be lifted to know real persons behind corporate smoke screen, Court should not hesitate to do so. 24. Rent Control Act has taken extreme care to see that tenants are not evicted at the whim of landlords. Landlord has to plead and prove one of statutory grounds for evicting tenant having protection of the statute. The Act also enables landlord to prove by all necessary material to support any of grounds. It is now well settled that interpretative process of Rent Control provisions should strike a balance so that landlords equally enjoy the right to property. When a proprietary concern owned by a joint family sets up another incorporated company and procures accommodation for the said purpose, there are strong reasons to assume that the tenant proprietary is itself secured alternative accommodation though the business is sought to be extended or continued in the name of the company. Applying the principle, this Court therefore holds that the tenant has secured alternative building, bearing premises No.4-4-231/A belonging to none other than daughter-in-law of proprietor, for continuing/extending the business. The point is answered accordingly against the tenant. (ii) Whether tenant ceased to occupy petition schedule premises? 25.
Applying the principle, this Court therefore holds that the tenant has secured alternative building, bearing premises No.4-4-231/A belonging to none other than daughter-in-law of proprietor, for continuing/extending the business. The point is answered accordingly against the tenant. (ii) Whether tenant ceased to occupy petition schedule premises? 25. Landlord produced photographic evidence, Exs.P.1 to P.7 and P.15 to P.18 to show that tenant ceased to occupy shop and that it was displayed on a paper affixed to petition schedule premises that, "new premises is shifted to Trimoorthi pharma." It was also exhibited by way of Ex.P.16 that a name board was kept in glass show case of the premises that the business is shifted to premises No.4-4-231/A. Learned Rent Controller rejected evidence in one go observing that landlord failed to prove allegation that tenant ceased to occupy the premises. Learned appellate authority reversed the finding, giving valid reasons as below: 26. The tenant has shifted his business. There is also signboard to that effect placed at the demised premises within the showcase. The landlord cannot be expected to enter the suit premises by such board and taken photographs to show that there is a board and indication to show that the business is shifted to another premises. That board is definitely therefore, put by the tenant. Admittedly in the same line, another premises is purchased by the family members of the tenant. The tenant has admitted in his evidence that his daughter-in-law is the purchaser of that property. The tenant has not produced any evidence to show that he has been continuing to carry on the business in the demised premises. In fact the tenant has suppressed the bills, vouchers, accounts books, electricity bills etc. Withholding of such entire evidence by the tenant is for the obvious reasons that if he produces those records, it would negative his contention that he has not shifted his business to another premises. Though he has stated that he has got any account in another bank for his business purpose, he has not produced any bank records or any account books or the electricity bills and the payment receipts. The electricity bills would disclose that the reading in the electricity meter and if really the tenant had carried on the business in the demised premises, the consumption of the electricity would be recorded in the bills.
The electricity bills would disclose that the reading in the electricity meter and if really the tenant had carried on the business in the demised premises, the consumption of the electricity would be recorded in the bills. Since the bills did not show any consumption of electricity and the readings are practically nil, he has withhold the bills. If the bills are produced, they will disclose that there is no use of electricity or the premises is already kept closed. Therefore, the best possible evidence is withheld by the tenant. Therefore, it is cleared that the tenant has secured alternative accommodation and he is also ceased to occupy the demised premises. 27. Learned Senior Counsel submits that the above finding is perverse. This Court cannot accept it. When landlord has adduced evidence, which is available to him by producing photographs of premises in a closed condition with the name board that the business is shifted to other premises, one cannot expect more than this. The burden then shifts to tenant to adduce evidence as pointed out by appellate authority. 28. A reference may be made to Shiv Lal v Sat Prakash22. This case arose under East Punjab Urban Rent Restriction Act 1949. Section 13(2) thereof (similar to Section 10(2)(v) of A.P. Act), provided that a tenant will be liable to eviction if he ceased to occupy the building for a continuous period of four months without a reasonable cause. Therein on the plea that tenant ceased to discontinue occupation of premises, landlord's application for eviction was allowed. The same was affirmed by appellate authority but the High Court reversed, on the holding that landlord failed to prove that tenant has brought tenancy to an end. Supreme Court reversed order of High Court observing thus. The relevant clause of Section 13(2) of the Rent Control Act states that a tenant will be liable to eviction if he ceases to occupy the building for a continuous period of four months without reasonable cause. The section does not require the cession of tenancy in question. The only condition which has to be satisfied is the non-user of the building for the requisite period. The principle underlying the provisions is that if a premises is not required by the tenant, it should become available to another person who may be in need thereof.
The section does not require the cession of tenancy in question. The only condition which has to be satisfied is the non-user of the building for the requisite period. The principle underlying the provisions is that if a premises is not required by the tenant, it should become available to another person who may be in need thereof. The High Court, therefore, was clearly in error in assuming that unless the cession of the tenancy is proved, eviction cannot be ordered. Furthermore, as rightly observed by appellate authority when the tenant failed to produce relevant evidence like electricity bills, payment receipts and bank records to show that business was being continued in the tenanted premises, an adverse inference can always be drawn against tenant. Therefore finding recorded by appellate authority does not warrant any interference; indeed it is not permissible in revision. The point is accordingly decided in favour of landlord and against tenant holding that tenant ceased to occupy petition schedule premises from February 1993. Therefore landlord is entitled to evict the tenant. Bona fide requirement for personal occupation 29. Landlord alleged that he is a CA and he requires petition schedule premises for his office. While admitting that after purchase of premises he constructed first and second floors bearing Municipal No.4-4-233/1A and 4-4- 233/1B at Inderbagh, he alleged that first floor has kitchen and dining hall and second floor has bedroom and sitting room. He has no accommodation for his professional work and he requires sufficient space for keeping files, books, records and accommodating clients. Landlord married in June 1990 and by the time eviction petition was filed, he had a child. He also asserted that he does not occupy any other non-residential building, which is his own. In the counter affidavit, tenant alleged that premises under occupation of tenant, is not suitable for professional work and that landlord is already in possession of non-residential buildings in Hyderabad and Secunderabad. Tenant also alleged that Inderbagh is a pharmaceutical market and is not fit for office of CA. There is no specific denial that landlord is using first floor as kitchen and dining room and second floor as sitting room and bed room. 30.
Tenant also alleged that Inderbagh is a pharmaceutical market and is not fit for office of CA. There is no specific denial that landlord is using first floor as kitchen and dining room and second floor as sitting room and bed room. 30. Learned Rent Controller came to the conclusion that landlord is carrying on his profession in the first floor of petition schedule premises and when there is no evidence that it is inconvenient, he cannot be permitted to evict tenant. He also came to the conclusion that in the absence of evidence that present premises is not suitable for the office of CA, requirement for personal occupation is not bona fide. Learned appellate authority placing reliance on Mohan Lal v Kondiah23, concluded that carrying professional work comes within definition of business and when first and second floors are being used for residential purpose even if landlord is doing business, the same does not disentitle him from seeking eviction of tenant. He also overruled the objection that landlord is already carrying on business as CA in rear side portion belonging to his father and therefore eviction petition is barred under Section 10(3)(iii)(b) of the Act. It is admitted by both sides that landlord is CA. He is already having office, part of which is in rear side portion belonging to his father, and part of office is in first floor, which is mainly used as a kitchen and dining room. It is also not denied that when tenant was inducted as a lessee and when property was purchased by present landlord, there was only ground floor belonging to landlord, which was let out, and by that date landlord has no other premises. All other floors were constructed subsequently which are mainly used for residential purpose. A submission is made that even first and second floors were constructed as non-residential portions, where he has office and hence he cannot seek eviction as, such a petition is barred under the Act. 31. The Act does not define "residential building" and "non-residential building". Section 2(3) of the Act defines 'Building' means any house let or to be let separately for residential or non-residential purposes. When the building is let out either for residential purpose or for non-residential purpose, in the matter of lease, rent and eviction, the law applies equally.
31. The Act does not define "residential building" and "non-residential building". Section 2(3) of the Act defines 'Building' means any house let or to be let separately for residential or non-residential purposes. When the building is let out either for residential purpose or for non-residential purpose, in the matter of lease, rent and eviction, the law applies equally. However in addition to grounds of eviction adumbrated under Section 10(2) of the Act, when the building is let out for a non-residential purpose as per Section 10(3) of the Act unless it is shown that the landlord is not occupying a residential building or a non-residential building in the city or town, eviction petition would not lie. In addition to these provisions, Section 18 of the Act lays down that no residential building shall be converted into a non-residential building except with permission of Controller. A plain reading of Section 18 of the Act would show that a residential building cannot be converted into a non-residential building with permission of Controller but a non-residential building can always be converted into a residential building. The Act gives utmost importance to preserve the nature of building for the purpose of residence. 32. As a finding of fact, both the Courts noticed that landlord is running his office in first floor, which is residential building. In this context, submission of tenant that it is also non-residential building cannot be accepted. There is no law which prohibits construction of a portion for residential purpose on the existing building, which is let out for non- residential purpose. Having acquired necessary qualifications, if landlord commences office of CA, in residential portion as a make-shift arrangement, law cannot be so unreasonable to deny him the right to seek eviction of tenant from the building used for non-residential purpose. Insofar as convenience or inconvenience of present office place is concerned, it is not for the tenant to dictate these things. It is the choice left to landlord even if a part of the office is being run on the rear side portion, the same does not in any manner prohibit or bar eviction petition. In Subramania Mudaliar vKolapur Traders, Supreme Court reversed finding of Madras High Court that carrying on profession of Advocate does not constitute business within meaning of Tamil Nadu Rent Act.
In Subramania Mudaliar vKolapur Traders, Supreme Court reversed finding of Madras High Court that carrying on profession of Advocate does not constitute business within meaning of Tamil Nadu Rent Act. Their Lordships referred to a decision in Mohan Lal (supra) wherein it was held that the practice of law is business within meaning of Section 10(3)(a)(iii) of A.P. Act. In Jabir Hussain v Asgar Hussain25, this Court held that requirement of tenanted premises by a CA to set up practice is bona fide requirement. There is no dispute that landlord commenced his office in the residential portion as a make-shift arrangement and if he desires to occupy tenanted premises for commencing/continuing office of CA, the same cannot be treated as not bona fide. It is impossible to imagine that a CA can run an office in a small room which is also used as a dining room and kitchen. Modern professional practice requires Information Technology (IT) enabled computerized digital database and good office ambience. These can only be provided when office is separate from living portion. Therefore landlord is justified in seeking eviction. In Boorgu Jagadeshwaraiah & Sons v Pushpa Trading Company26, a question arose as to whether landlord owning a non-residential building other than demised premises can still seek eviction having regard to such aspects like quality, size and suitability of the building owned by him. Supreme Court considered earlier decisions in D.Devaji v K.Sudarshana Rao27, J.Pandu v R.Narsubai28 and Dr.Saroj Kumar Das v Arjun Prasad Jogani29, in the light of Section 10(3)(a)(iii) of the Act and laid down that if the aspects of quality, size and suitability of the building are put out of consideration, that would frustrate purpose of the Act. Relevant observations are as under. It, thus, becomes evident that there is no conflict as such between the said decisions and they have gone on in the context of their own facts and the provisions of law. Even so, the argument of the appellant's learned counsel carries weight that the intention of the legislature in D. Devaji case has been scuttled by putting an extremely narrow and literal construction on the provision. It has been observed therein as under: (SCC p.732, para 4) "The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned.
It has been observed therein as under: (SCC p.732, para 4) "The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom." The aspects of quality, size and suitability of the building have been totally put out of consideration. We think this would frustrate the purposes of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. As we view it there is no difficulty in D. Devaji case standing in the way of the landlord-appellant to have the issue examined from the point of view which would carry out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlord's claim is based lest the manner they are recounted cause prejudice to either of the parties. 33. In view of the above decisions of Supreme Court, there cannot be any hesitation that a CA who is temporarily carrying on his business from his residential portion, can seek eviction of tenant from non-residential premises. This could not get diluted even if first and second floors constructed by landlord are by some extended reasoning treated as non-residential building. Indeed they are used for residential purpose and going by the definition of 'Building', they cannot be treated as non-residential buildings. 34. In the result, for the above reasons, this Court does not find any error much less grave error apparent on the face of record in the impugned order. The same is confirmed. As this Court agreed with the finding of appellate authority that tenant ceased to occupy petition schedule premises from February 1993, this Court is not inclined to extend any time for eviction. The civil revision petition is allowed.
The same is confirmed. As this Court agreed with the finding of appellate authority that tenant ceased to occupy petition schedule premises from February 1993, this Court is not inclined to extend any time for eviction. The civil revision petition is allowed. Respondent landlord shall be entitled for costs through out.