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2023 DIGILAW 144 (TS)

Sunil M. Rupani v. Mithan Lal

2023-02-14

A.SANTHOSH REDDY

body2023
ORDER : 1. This civil revision petition is directed against the judgment dated 24.11.2015 in R.A.No. 41 of 2015, on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad, wherein the said appeal filed by the respondents herein, tenants, was allowed setting aside the order dated 22.12.2014 passed in R.C.No. 15 of 2013, on the file of the Principal Rent Controller, Secunderabad, whereunder the said petition, filed for eviction, was allowed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The petitioner herein, landlord, filed R.C.No. 15 of 2013 against the respondents herein, tenants, under Sections 10(2) (i) and 3 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’) seeking eviction of the tenants from the petition schedule mulgi on the grounds of willful default and personal occupation. According to him, he is the owner and possessor of the petition schedule mulgi bearing No. 41, admeasuring 306 sq. ft., situate at Cellar, Chenoy Trade Centre, Parklane, Secunderabad and the first respondent was inducted as tenant on an unregistered lease agreement for a period of three months commencing from 01.08.1995 to 31.07.1998 to use it as godown of the second respondent on initial monthly rent of Rs.1,750/- exclusive of electricity, water, proper tax and maintenance charges etc., with an interest free refundable deposit of Rs.15,000/-. The term of the lease was for three years commencing from 01.08.1995. The first respondent promised to vacate the same and deliver vacant peaceful possession of the said mulgi and had not enhanced the rent and continued to occupy the same on one pretext or the other. The first respondent in contravention of the lease unauthorisedly sublet the mulgi to M/s Mahaveer Enterprises and started collecting heavy rents. The petitioner reliably learnt that the first respondent is collecting rent of Rs.15,000/- to Rs.18,000/- per month from M/s Mahaveer Enterprises. The petitioner is in need of the mulgi for personal occupation for carrying on the business of his wife for running a boutique and requested the first respondent to hand over the same. The first respondent assured that he will vacate the same, but he was dodging the matter on one pretext of the other. The petitioner is in need of the mulgi for personal occupation for carrying on the business of his wife for running a boutique and requested the first respondent to hand over the same. The first respondent assured that he will vacate the same, but he was dodging the matter on one pretext of the other. The petitioner got issued legal notice dated 29.11.2012 to the first respondent, who, having received the same, failed to give reply to the notice or vacate and handover the mulgi. The first respondent committed default in payment of rent and thereby violated the terms of tenancy by subletting the same to a third person without consent of the petitioner. 4. The respondent-tenant filed counter admitting the tenancy and denying that the premises is required bona fide for personal requirement of the petitioner-landlord. He would contend that he had not committed any willful default in payment of the rents and he had not sublet the petition schedule mulgi to any one at any point of time. The first respondent is in exclusive possession of the petition schedule mulgi and is maintaining the same in good condition. He would further contend that the wife of the petitioner is housewife and she is not in need of the petition schedule mulgi to run a boutique. The alleged bona fide requirement is not genuine. 5. Based on the above said pleadings, the Rent Controller framed the following points for consideration: (i) Whether the respondent has committed willful default in payment of rents as alleged by the petitioner? (ii) Whether the petitioner requires the schedule property bonafidely for his personal occupation? (iii) Whether the respondent has sublet the petition schedule property to M/s Mahaveer Enterprises as alleged by the petitioner? (iv) To what relief? 6. During enquiry before the learned Rent Controller, PW-1 was examined and Exs.P-1 and P-17 were marked on behalf of the landlord. RW-1 was examined and Exs.R-1 to R-5 were marked on behalf of the tenant. 7. On a consideration of the evidence available on record, the learned Rent Controller by order dated 22.12.2014 allowed the RC and directed the respondents-tenants to vacate and hand over the vacant possession of the petition schedule mulgi within two months from the date of the order. 7. On a consideration of the evidence available on record, the learned Rent Controller by order dated 22.12.2014 allowed the RC and directed the respondents-tenants to vacate and hand over the vacant possession of the petition schedule mulgi within two months from the date of the order. Aggrieved by the same, the tenant preferred an appeal in R.A.No. 41 of 2015 before of the Additional Chief Judge, City Small Causes Court, Hyderabad. The learned Additional Chief Judge, by judgment dated 24.11.2015, allowed the said appeal by setting aside the order of eviction passed by the learned Rent Controller. Challenging the same, the present revision by the landlord. 8. It is not in dispute that the petitioner is landlord of the schedule mulgi situate at Cellar, Chenoy Trade Centre, Parklane, Secunderabad. The first respondent is tenant and using the same as godown of the second respondent. The lease deed is not registered and is only for a period three years commencing from 01.08.1995 and the initial agreed rent was Rs.1,750/- per month exclusive of electricity, water, proper tax and maintenance charges etc. The landlord wanted the mulgi for personal occupation for carrying on the business of his wife for running a boutique and in spite of repeated requests, the first respondent did not vacate the premises and instead dodged the matter on one pretext or the other. The landlord filed R.C.No. 15 of 2013 before the Rent Controller for eviction of the tenant from the suit schedule premises. 9. The learned Rent Controller accepted the plea of bona fide requirement on the ground that the wife of the landlord decided to run a boutique shop, but, however, did not accept that the tenant has committed willful default. The learned Rent Controller had also accepted that the landlord has proved that the first respondent had sublet the petition schedule mulgi to M/s Mahaveer Enterprises. The evidence of the petitioner, as PW-1, discloses that the tenant had been tendering the rents regularly and never committed default in payment of rents and both the courts below have concurrently held on this aspect that there is no willful default on the part of the tenant. 10. The next question urged by the landlord is that the schedule muilgi is required for personal occupation to start a boutique business of his wife. 10. The next question urged by the landlord is that the schedule muilgi is required for personal occupation to start a boutique business of his wife. The first respondent denied that the wife of the petitioner requires the petition schedule mulgi, on two grounds. Firstly, the business where the shop is located is surrounded by computer peripheral shops and, therefore, the petition schedule mulgi is not suitable for the purpose of doing boutique business. What is the bona fide requirement has been dealt by the Hon’ble Supreme Court in Prativa Devi vs. T.V. Krishnan, (1996) 5 SCC 353 wherein it was held that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of his own. There is no law which deprives the landlord of the beneficial enjoyment of his property. 11. In another judgment in G.C. Kapoor vs. Nand Kumar Bhasin and Others, (2002) 1 SCC 610 the Hon’ble Supreme Court at para 9 held that “it is settled position of law that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkunde, 1999 (4) SCC 1 , this Court while considering the bona fide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for “presuming that his need is not bona fide”. It was also held that while deciding this question, Court would look into the broad aspects and if the Court feels any doubt about bona fide requirement, it is for the landlord to clear such doubt”. 12. It is no doubt true that in the present case the plea of bona fide requirement putforth by the landlord is that the schedule mulgi is required for his wife for running a boutique. 12. It is no doubt true that in the present case the plea of bona fide requirement putforth by the landlord is that the schedule mulgi is required for his wife for running a boutique. It is not in dispute that the landlord also admitted that the petition mulgi is located in the cellar portion of Cellar, Chenoy Trade Centre, Parklane, Secunderabad and when compared to the original ground first floor portions of the complex, the ventilation in the cellar portion is very less. The finding of the Appellate Authority that the court would have accepted the requirement of petition schedule mulgi by the landlord as bona fide, had the landlord examined his wife as a witness to prove that she is having experience how to run a boutique shop is not correct. As held by the Hon’ble Apex Court, the landlord is the best judge of his requirements. The Appellate Court had erroneously set aside the findings of the trial Court on the aspect of bona fide requirement on improper appreciation of the evidence on record. There is no need for the landlord to establish that his wife is having experience in boutique business and requirement of the landlord is bona fide or not is the only question that has to be decided after taking into consideration the circumstances pleaded by the landlord. The Appellate Authority went on stating that the petitioner, after issuance of Ex.P-1 notice in the month of November, 2012, filed the eviction petition on 18.02.2013 and if really he required the petition schedule mulgi to start a boutique business of his wife, he would have filed eviction petition immediately after issuance of Ex.P-1 notice. The said finding is erroneous. All the way the landlord was stating that he was negotiating with the tenant and requesting him to vacate the premises to start boutique business. On a perusal of the evidence of the landlord, it inspires confidence of this Court to believe that the requirement of the schedule mulgi is bona fide and there is nothing on record to suspect or disbelieve that the same is not a bona fide requirement of the landlord. Apart from that, as per Section 10(3) of the Act, the requirement of premises by any one of the family members is certainly the requirement of the landlord. Apart from that, as per Section 10(3) of the Act, the requirement of premises by any one of the family members is certainly the requirement of the landlord. It is not necessary that the requirement should only be of the landlord; he can seek eviction of the tenant for the purpose of requirement by any of his family members for doing business. 13. The other ground of the landlord is that the tenant has sublet the petition schedule mulgi to M/s Mahaveer Enterprises. In order to prove the said fact, the landlord himself deposed the facts as per his knowledge and in support of his contentions filed Exs.P-5 to P-16 photographs. The Rent Controller had rightly appreciated the facts and evidence on record, oral and documentary, and held that the evidence of the petitioner coupled with the documents filed establishes the fact that the tenant sublet the petition schedule mulgi to M/s Mahaveer Enterprises. Though it is pointed by the Appellate Court, except the photographs, there is no other document to establish with cogent evidence that the tenant had sublet the schedule mulgi to M/s Mahaveer Enterprises, however, a close scrutiny of the photographs Exs.P-11 and P-12 shows that Shop No. 41 which is petition schedule mulgi is being occupied by M/s Mahaveer Enterprises and also Exs.P-10 and P-13 show that the petition schedule mulgi is under the occupation of M/s Mahaveer Enterprises. Ex.P-16 is the photograph of the schedule mulgi which was originally occupied by the first respondent. A close scrutiny of Ex.P-16 photograph coupled with Exs.P-11 and P-12 photographs shows that the first respondent was in occupation of the petition schedule mulgi i.e., Shop No. 41 situate at Chenoy Trade Centre, Parklane, Secunderabad and subsequently he sublet the same to the second respondent, who is carrying on business under the name and style of M/s Mahaveer Enterprises. Apart from this, PW-1 also admitted that as per Ex.P-17, which is computer extract, the address of Shirts and Shirtings is Shop No. 7, Parklane, Secunderabad. Therefore, it is evident that the actual tenant i.e., the first respondent is not carrying on the business in the petition schedule mulgi but is carrying on business in Shop No. 7, Parklane Secunderbad. Apart from this, PW-1 also admitted that as per Ex.P-17, which is computer extract, the address of Shirts and Shirtings is Shop No. 7, Parklane, Secunderabad. Therefore, it is evident that the actual tenant i.e., the first respondent is not carrying on the business in the petition schedule mulgi but is carrying on business in Shop No. 7, Parklane Secunderbad. These important circumstances in the evidence of both the parties would also show that the first respondent sublet the petition schedule mulgi to M/s Mahaveer Enterprises without the consent of landlord and thereby violated the terms and conditions of the agreement. 14. Therefore, the Appellate Authority has not properly appreciated the evidence, oral and documentary on record, and the mulgi referred above would disclose that the landlord has proved with cogent evidence about his bona fide requirement for personal occupation of the suit schedule mulgi and he is rightly entitled for eviction of the tenant. 15. For the foregoing reasons, I am of the view that the order passed by the Appellate Authority suffers from material irregularity warranting interference by this Court in exercise of revisional jurisdiction. 16. In the result, the civil revision petition is allowed. The judgment dated 24.11.2015 in R.A. No. 41 of 2015, on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad is hereby set aside. The respondent-tenant is granted three months from today for vacating the premises and deliver vacant possession of the same to the petitioner-landlord, failing which the landlord is at liberty to proceed in accordance with law. There shall be no order as to costs. 17. Miscellaneous Petitions, if any pending, stand closed.