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2011 DIGILAW 732 (AP)

Mohd. Saqawath Ali Bhakshi v. Shaik Mohd. Iqbal

2011-09-07

B.CHANDRA KUMAR

body2011
Judgment : 1. This revision is directed against the judgment dated 15.03.2010 passed in R.A.No.35 of 2009 by the Additional Chief Judge, City Small Causes Court, Hyderabad (‘the lower appellate authority’, for brevity), whereby and whereunder, the order dated 10.12.2008 passed in R.C.No.197 of 2006 by the II Additional Rent Controller, Hyderabad (‘the Rent Controller’, for brevity) was confirmed. 2. The petitioner herein is the landlord and the respondent herein is the tenant of the mulgi bearing municipal No.9-4-76/1/6 situated at Toli Chowki Main Road, Hyderabad (petition schedule mulgi). For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Rent Controller. 3. 2. The petitioner herein is the landlord and the respondent herein is the tenant of the mulgi bearing municipal No.9-4-76/1/6 situated at Toli Chowki Main Road, Hyderabad (petition schedule mulgi). For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Rent Controller. 3. The brief facts of the case are as follows:- The petitioner filed R.C.No.197 of 2006 before the Rent Controller under Sections 10(2) (i) and 10(3) (a)(iii) of the A.P.Buildings (Lease, Rent & Eviction) Control Act, 1960, seeking eviction of the respondent from the petition schedule mulgi contending inter alia that he is the owner of the petition schedule mulgi; that the respondent had obtained the same on rent from him under a registered Rental Deed dated 27.01.2005 vide document No.0282/2005 for a period of nine months, i.e., till the end of September, 2005 and agreed to pay a monthly rent of Rs.3,300/- per month excluding electricity charges and Municipal Property Taxes; that from the date of inception of tenancy, the respondent is irregular in payment of rents; that he is a businessman and needs the petition schedule mulgi for his personal use and occupation, i.e., to start his own business; that he has got sufficient funds and experience to start his own business; that since the term of tenancy has expired in November, 2005, he issued a legal notice dated 24.08.2005 to the respondent asking him to vacate the petition schedule mulgi; that the respondent issued reply notice dated 14.09.2005 with false allegations; that the respondent, in spite of vacating the petition schedule mulgi, filed a suit in O.S.No.6417 of 2005 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad, seeking perpetual injunction; that the respondent had willfully defaulted the payment of rents from October, 2005 to February, 2006, i.e., for a period of five months; that he, by oversight, has filed a Eviction Civil Suit against the respondent in S.R.No.60 of 2006 but the same was returned on 21.02.2006 with a direction to present before the proper Court. 4. 4. The respondent contested the matter and filed counter denying the material averments made by the petitioner and contended that he is the tenant in the petition schedule mulgi; that since the commencement of the tenancy, he is doing the business in the name and style of M/s.S.N.Kirana Merchant in the petition schedule mulgi; that an advance of Rs.50,000/- is lying with the petitioner as deposited by his brother – S.M.Hanees, who was the earlier tenant in the petition schedule mulgi; that as his brother vacated the petition schedule mulgi to start a new business at some other place, he became the tenant of the petition schedule mulgi; that the said deposit of Rs.50,000/-is refundable at the time of vacating the petition schedule mulgi, i.e., after five years as per the oral agreement between himself and the petitioner. The respondent further denied that he is irregular in payment of rents from the inception of the tenancy. His further case is that the petitioner used to pass rental receipts to him; that the rent for the month of September, 2005 was sent through Money Order along with the rent of October, 2005, but the petitioner has refused to receive the same; that thereafter, he field R.C.No.67 of 2006 before the Principal Rent Controller and obtained interim orders and accordingly, he is depositing the rents to the credit of the said R.C.; that the petitioner is not in need of the petition schedule mulgi for his personal use and occupation, i.e., to start his own business; that the eviction petition filed by the petitioner is a counterblast to the R.C. filed by him. 5. Basing on the above pleadings, the learned Rent Controller framed the following points for consideration:- 1. Whether the respondent had committed willful default in paying the rents and therefore the respondent is liable to be evicted from the petition schedule premises? 2. Whether the petition schedule premises is required by the petitioner under bonafide requirement? 3. To what relief? 6. On behalf of the petitioner, the petitioner himself was examined as P.W.1 and Exs.A.1 to A.5 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and one Mohd.Haneef was examined as P.W.2 and Exs.B.1 to B.10 were marked. 7. 3. To what relief? 6. On behalf of the petitioner, the petitioner himself was examined as P.W.1 and Exs.A.1 to A.5 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and one Mohd.Haneef was examined as P.W.2 and Exs.B.1 to B.10 were marked. 7. The learned Rent Controller, on appreciation of the oral and documentary evidence available on record, came to the conclusion that there is no willful default in payment of rents on the part of the respondent as the respondent has deposited the rents into the Court. On the issue of bonafide requirement, the learned Rent Controller, holding that though the petitioner deposed that he is an electrical worker but he did not aver in his petition that he wanted to start electrical shop in the petition schedule mulgi and that eviction petition has been filed as a counterblast to the suit filed by the respondent, dismissed the R.C. Aggrieved by the same, the petitioner/landlord preferred an appeal before the lower appellate authority and the appellate authority dismissed the R.A. confirming the order of the Rent Controller, which order is being impugned by the petitioner/landlord in this revision. 8. The main contention of Sri Nazir Ahmed Khan, learned counsel for the petitioner/landlord is that both the Courts below have not appreciated the fact that the petitioner bonafiidely require the petition schedule mulgi to start his own business and that the petitioner has no other mulgi to start his business. It is also his submission that both the Courts below have erred in coming to the conclusion that the petition filed by the petitioner is a counterblast to the suit filed by the respondent. In support of his contentions, learned counsel had relied on the judgments in the cases between T.Sunil Kumar and others Vs. M/s.S.G.Edulgri & Sons and others AIR 1993 A.P. 205 and Gokara Konda Sita Vs. Cheedella Ramakrishna Rao 2006 (3) ALT 593 . 9. Per contra, Sri T.Sharath, learned counsel for the respondent/tenant submitted that both the Courts below have properly appreciated the evidence and that there is no need to interfere with the findings of Courts below. It is further argued that the petitioner has not furnished the particulars of the business he intends to start in the petition schedule mulgi and the respondent filed a suit and subsequently the petitioner filed eviction petition as a counterblast. 10. It is further argued that the petitioner has not furnished the particulars of the business he intends to start in the petition schedule mulgi and the respondent filed a suit and subsequently the petitioner filed eviction petition as a counterblast. 10. In view of the above rival contentions, the points that arise for consideration in this revision are (1) whether the petitioner has proved that he bonafiidely require the petition schedule mulgi for starting his own business; and (2) Whether the landlord is required to give the particulars of the business he intends to start in his own premises for evicting the tenant. 11.The petitioner, in paragraph No.5 of petition filed before the Rent Controller, averred as follows:- “5. That the petitioner is a businessman and the petitioner is in need of the schedule for his personal use and occupation, i.e., to start his own business in the schedule Mulgi for which the petitioner has sufficient funds and sufficient experience, and also as the terms and conditions of the Rental Deed, the tenancy of the respondent has been expired by the end of November, 2005 as such the petitioner through a legal notice dated 24.08.2005, asked the respondent to act in terms of the clause of the Rental Deed, the said notice was served on the respondent and the respondent got replied the said notice through his reply notice dated 14.09.2005 with false allegation.: 12. In paragraph No.7 of the same petition, the petitioner averred as follows:- “7. That the petition schedule Mulgi s required by the petitioner bonafidely for the use and occupation of the petitioner as such the respondent is liable to be evicted from the schedule mulgi”. 13. Of course, in the counter, the respondent has denied the claim of the petitioner. It is not in dispute that a registered Rental Agreement between the petitioner and the respondent was executed on 27.01.2005 and the petition schedule mulgi was leased out to the respondent on a monthly rent of Rs.3,300/- excluding electricity charges. It is also not in dispute that the respondent has been doing business in the name and style of ‘S.N.Kirana Merchant’ in the petition schedule mulgi. It is also not in dispute that the respondent has been doing business in the name and style of ‘S.N.Kirana Merchant’ in the petition schedule mulgi. It has to be seen that though the respondent claimed that an advance of Rs.50,000/- is lying with the petitioner, but in the cross-examination, he has admitted that there is no recital in the lease agreement in respect of the deposit of an amount of Rs.50,000/-. The petitioner, in his chief-examination, deposed that he is a businessman and he is in need of the petition schedule mulgi for his personal use and occupation, i.e., to start his own business. He has also deposed that he has sufficient funds and experience to start his own business. The petitioner specifically deposed that he is an electrical worker and as such, he intends to start his own shop to sell and repair electrical appliances. He further deposed that he is not doing any real estate business since 1990 and that he has obtained license in the year 2004 as an electrical wireman. He has also admitted that he did not specifically mention in his legal notice that he wanted to start electrical shop in the petition schedule mulgi and that he had not shown in the cause-title that he is an electrician by profession. However, he claims that he had specifically stated in the written statement and counter in O.S.No.6417 of 2005 and his counter affidavit filed in R.C.No.67 of 2006 in I.A.No.25 of 2006 that he wanted to start electrical shop in the petition schedule mulgi. It has to be seen that the petitioner has shown his occupation as businessman in the cause-title. 14. When a landlord wants to start his own business in his own premises, the only point that has to be looked into is whether his claim is a bonafide one or not and whether he has got any other premises in the said city/town or not. In the instant case, admittedly, it is not the case of the respondent that the petitioner has got any other premises in the city wherein he can start his own business. Of course, it is a fact that the petitioner did not give any particulars of business which he intends to start in the petition schedule mulgi in his petition averments. 15. Of course, it is a fact that the petitioner did not give any particulars of business which he intends to start in the petition schedule mulgi in his petition averments. 15. Learned counsel for the respondent has taken me through the contents of Ex.A.3 – Legal notice dated 24.08.2005, wherein, the petitioner seems to have demanded the respondent to vacate the petition schedule mulgi on the ground that the lease period was expired. As can be seen from the evidence of the respondent, he admitted that the petitioner is having number of businesses and according to him, the petitioner has been conducting his business from his own house. The respondent also deposed that “may be, the petitioner is having mulgi like PSP”. When he was specifically asked to give the particulars of the door number, location, extent of the shop etc., of such other mulgi, the respondent categorically deposed that he does know such particulars. Thus, it is clear that the petitioner has no other premises to carry on his business. The specific contention of the petitioner is that he obtained ‘B’ Grade licence as an electrical wireman, which has not been disputed by the respondent. When a landlord intends to start his own business, it is not necessary for him to give all minute details such as nature of business, source of capital. He need not prove that he has capacity or skills to do the business. When he intends to start business, he may acquire those things subsequently. It is not for the Rent Controller or the respondent to assess whether the petitioner has the capacity to start his own business or whether he will be successful in that business. They are not concerned whether the landlord is likely to sustain profit or loss. What is to be seen is whether the landlord has any other suitable premises to start his business. Even if his family members are doing business in some other mulgi, that will not prevent the landlord in seeking eviction of the tenant for bonafide requirement. What is to be seen is whether the claim is bonafide or not. If it appears that the claim is prima facie bonafide, no roaring enquiry is required. However, where it appears that the very claim itself is malafide and eviction is sought only for the purpose of evicting the tenant, then the landlord’s contention need not be accepted. What is to be seen is whether the claim is bonafide or not. If it appears that the claim is prima facie bonafide, no roaring enquiry is required. However, where it appears that the very claim itself is malafide and eviction is sought only for the purpose of evicting the tenant, then the landlord’s contention need not be accepted. 16. In T.Sunil Kumar’s case (1 cited supra), it was held by this Court that a petition filed by the landlord could not be dismissed on the ground that the landlord has not mentioned the particulars of the business he intends to carry on in the premises. 17. In Gokara Konda Sita’s case (2 cited supra), it was held that the evidence of the landlord on his bonafide personal requirement of the premises cannot be discarded on the ground of not adducing corroborative evidence in the absence of any contrary evidence by tenant. 18. In the instant case, the claim of the landlord cannot be rejected merely on the ground that he had not given the nature and particulars of the business he intends to do. Therefore, it is clear that the petitioner bonafidely require the petition schedule mulgi to start his own electrical shop. 19. Now it has to be seen that whether the Eviction Petition filed by the petitioner can be treated as a counterblast to the civil suit filed by the respondent. It is true that the respondent filed O.S.No.6417 of 2005 on 04.10.2005 on the file of VI Junior Civil Judge, City Civil Court, Hyderabad, prior to the filing of the Rent Control Case by the petitioner. But however, all the circumstances that existed prior to the filing of the suit in O.S.No.6417 of 2005 by the respondent are also relevant and necessary for arriving at correct conclusions. Admittedly, the petitioner got issued a legal notice on 24.08.2005 asking the respondent to vacate the petition schedule mulgi. It is also not in dispute that the said notice has been served on the respondent and the respondent himself gave reply on 14.09.2005. Thus, the petitioner had laid the foundation for evicting the respondent from the petition schedule mulgi even before institution of the suit by the respondent. It is also not in dispute that the said notice has been served on the respondent and the respondent himself gave reply on 14.09.2005. Thus, the petitioner had laid the foundation for evicting the respondent from the petition schedule mulgi even before institution of the suit by the respondent. Therefore, filing of the suit in O.S.No.6417 of 2005 on the file of the VI Junior Civil Judge, City Civil Court, Hyderabad, by the respondent is nothing but to evade the consequences of the legal notice issued by the petitioner on 24.08.2005. In view of the same, it cannot be said that the eviction petition filed by the petitioner is a counterblast to the suit filed by the respondent in O.S.No.6417 of 2005. Both the Courts below have failed to take into consideration the fact that it is the petitioner who had earlier issued legal notice on 24.08.2005 in Ex.A.3 asking the respondent to vacate the petition schedule mulgi. 20. In view of the above discussion, I hold that both the Courts below have failed to appreciate the evidence in proper perspective and the findings of both the Courts below are not based on record and are perverse and as such, they are liable be set aside. 21. In the result, the Civil Revision Petition is allowed by setting aside the impugned order. Consequently, the R.C. filed by the petitioner/landlord in R.C.No.197 of 2006 before the learned Rent Controller stands allowed. The respondent/tenant is directed to vacate and handover the vacant possession of the petition schedule mulgi to the petitioner/landlord by 31st December, 2011, subject to the condition of payment of rents. The respondent shall not induct any third parties in the petition schedule mulgi in the meanwhile. There shall be no order as to costs.