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2011 DIGILAW 24 (AP)

Gurrampadi Annama Raja v. Pathakamoori Malyadri

2011-01-20

B.CHANDRA KUMAR

body2011
Judgment The Civil Revision Petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960 (for short, ‘the Act’) is directed against the judgment and decree in R.C.A.No.4 of 2004, dated 06.03.2006 passed by the Principal Senior Civil Judge, Ongole, dismissing the appeal and confirming the order passed by the Rent Controller-cum-Principal Junior Civil Judge, Ongole, dated 26.08.2003 in R.C.C.No.3 of 2002, rejecting the claim of the petitioner seeking the eviction of the respondent from the leased out premises. 2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the Rent Controller. 3. The brief facts of the case are as follows: The petitioner and her sisters Venkata Subbalakshmi, Bhagya Lakshmi and Padma Jyothi are owners of the schedule premises. The other sisters of the petitioner gave affidavits separately permitting the petitioner to file an application against the respondent seeking eviction from the petition schedule premises. The schedule premises admeasuring 6 x 12 feet in the ground floor of the building was leased out to the respondent on a monthly rent of Rs.75/- for running a Hair Saloon Shop in the year 1971. Subsequently, the rent was enhanced to Rs.300/- per month. Initially, the father of the petitioner leased out the premises to the respondent. During the lifetime, he filed R.C.C.No.41 of 1995, seeking eviction of the respondent and the same was dismissed. Subsequently, the father of the petitioner refused to receive the rents and the respondent filed an application under Section 85 of the Act, and sought permission to deposit the rents in the Court every month. 4. Now the case of the petitioner is that she is a Graduate in Electronics and Communications having obtained degree in the year 1994. Her husband is settled in London and they are not in good terms. She wanted to open an Electronic Shop in the schedule premises, as she has no other source of livelihood. Thus, the claim of the petitioner is that the premises is bonafidely required for her personal use. 5. The respondent resisted the claim of the petitioner and filed counter referring to the earlier litigation, and contended that the petitioner got sufficient properties; that the premises is not required by her for running electronic shop and that it is not fit for that purpose. 6. 5. The respondent resisted the claim of the petitioner and filed counter referring to the earlier litigation, and contended that the petitioner got sufficient properties; that the premises is not required by her for running electronic shop and that it is not fit for that purpose. 6. On behalf of the petitioner, the petitioner herself was examined as PW-1 and got marked Exs.A-1 to A-3. On behalf of the respondent, the respondent himself was examined as RW-1 and examined another witness as RW-2 and got marked Exs.B-1 and B-2. 7. The learned Rent Controller after considering the oral and documentary evidence dismissed the R.C.C., holding that the claim of the petitioner is not bonafide and there is no satisfactory evidence to substantiate her claim. 8. Aggrieved by the order of the Rent Controller, she preferred an appeal. The lower appellate Court also confirmed the order of the learned Rent Controller. Hence, the present Civil Revision Petition. 9. Learned counsel for the petitioner submits that the petitioner is a woman and she had obtained divorce from her husband; that she has no other avocation and wants to start electronic goods shop and, therefore, her claim is bonafide. It is his submission that merely because the size of the shop is 6 x 12 feet that does not mean that the same cannot be used for the sale of electronic goods. It is also his submission that merely because the petitioner was undergoing training for starting an independent establishment on the date of giving the evidence, that does not mean that her requirement is not bonafide. 10. Learned counsel for the respondent has supported the orders of the Courts below and submitted that the respondent has been running hair cutting saloon since last 30 years and now if he is evicted, he will face the hardship. 11. The only point that arises for consideration is whether the requirement of the petitioner is bonafide? 12. Admittedly, the petitioner in her evidence categorically deposed that though the measurements of the shop are only 6 x 12 feet, she is in need of the same for opening an electronic goods shop and for the said purpose, she had also undergone the required training. The lower appellate Court observed that for opening an electronic shop, much wider and spacious office is needed now-a-days. The lower appellate Court observed that for opening an electronic shop, much wider and spacious office is needed now-a-days. It all depends on the capital to be invested and the persons required to manage the shop etc. A person may start a small shop and gain experience and subsequently enlarge his business. By any stretch of imagination, it can be said that a shop, which is 6 x 12 feet is not sufficient and cannot be used for running a shop. The opinion of the learned appellate Judge appears to be based on his whims and fancies. No orders can be passed on mere assumptions and presumptions. Every order should be based on the evidence on record. When the petitioner claims that she can open a shop with a measurement of 6 x 12’, it is open to the petitioner to choose the size of the shop and the amount of capital to be invested etc. No one can dictate what should be the size of the shop and say that merely because the shop is small, the very claim of bonafide requirement is not correct. 13. Now, coming to the other aspect that the petitioner was undergoing training in Ahmedabad for starting an independent establishment, it has come on record that the petitioner was undergoing training on the date of giving evidence and it would be completed in another two and half months. The very purpose of undergoing training shows that the petitioner is really intended to start an independent business. Merely, because she had not yet completed her training and was still undergoing training, that does not mean that her claim is not bonafide. 14. Now, the next point that was considered by the lower appellate Court is that there are three other shops were vacant in the first floor. It is true that it has come on record that the three other shops were lying vacant and one of the shops was occupied by her brother-in-law, who was a doctor, using the room for running a clinic. When the petitioner wants to start a business, even if some rooms are vacant in the first floor that does not mean that the petitioner can use those rooms for running the business. Normally, the shops in the ground floor will be preferred for starting a business. When the petitioner wants to start a business, even if some rooms are vacant in the first floor that does not mean that the petitioner can use those rooms for running the business. Normally, the shops in the ground floor will be preferred for starting a business. It is for the landlord to decide which premise is useful for running his business. No evidence has been let in to show that there are electronic or electric goods shops in the first floor in that street. The tenant cannot say that since other rooms are vacant in the first floor, the landlady could start her business in the first floor. It has to be seen that the landlord has been seeking to get possession, but could not succeed since about 16 years. The petitioner completed her B.E. Graduation in Electronics and Communications in the year, 1994. She obtained divorce from her husband. As seen from the recitals of Ex.A-2 dated 25.04.2002, she has also deposed that she has no other avocation. In the above circumstances, it is clear that the schedule premises is required to the petitioner for opening an electronic goods shop and her claim appears to be genuine and bonafide. The Courts below have failed to consider the evidence on proper perspective and their findings are clearly perverse. 15. In view of the above, the Civil Revision Petition is allowed setting aside the order in R.C.A.No.4 of 2004 dated 06.03.2006 on the file of Principal Senior Civil Judge, Ongole. The respondent is directed to vacate the premises by the end of March i.e., by 31.03.2011 and hand over the vacant possession to the petitioner without fail. There shall be no order as to costs.