B. Suresh Babu vs T. Ramakrishnaiah

P.S. Narayana, J.—The landlord filed the present C.R.P. aggrieved by the reversing order made in CMA No. 6/2000 by the Senior Civil Judge-cum-Appellate Authority, Nandyal, preferred as against an order of eviction made in R.C.C.No. 10/96 on the file of Rent Controller-cum-Principal Junior Civil Judge, Nandyal.

The learned Counsel representing the parties Sri O. Manohar Reddy, the Counsel representing the landlord, and Sri Bal Ram Reddy, the Counsel representing the tenant, made elaborate submissions.

The parties, for the purpose of convenience, would be referred to as landlord and tenant hereinafter.

It was pleaded in R.C.C. No. 10/96 as hereunder:

"The petitioner is the owner of the schedule building situated within the limits of Nandyal Municipality as shown in the schedule. He has let-out the same to the respondent for the purpose of carrying on business in Silver and Gold ornaments for a monthly rent of Rs. 300/- payable at the end of every month. The lease period agreed was one year with effect from 1-12-1986. On the very same day, the respondent executed an unregistered lease agreement on a stamped paper and the respondent has also paid an amount of Rs. 1,000/- towards advance. As per the terms of agreement, the respondent was to vacate the shop by 3-12-1987 without giving any notice and take back his Rs. 1,000/-which is paid towards advance.

The respondent executed another agreement on 8-1-1988 agreeing to pay the rent @ Rs. 330/- per month and paid advance of Rs. 2,000/-. Lease period was fixed for two years. Subsequent to the said lease period also, the respondent had been continuing with an understanding to vacate as and when required by the petitioner.

The premises let-out to the respondent is nothing but an entrance to main residential building bearing Door No. 1/287. Except the said entrance, there is no other way to enter the main building. This aspect was also mentioned in the lease agreement. The petitioner has been insisting the respondent for the last three years to vacate the schedule shop. But, the respondent has been postponing on one pretext or the other. The petitioner is an unemployed graduate and he wants to effect necessary repairs to the main building for his residential accommodation and wanted to start his own cloth shop in the shop let-out to Sivasankar Reddy. The furniture in the said shop also belongs to the petitioner.

The respondent filed R.C.C. No. 6/96 and has been depositing the rent in the Court. He has also filed O.S. No. 88/96 and obtained interim injunction against the petitioner from forcible eviction. Due to non-vacation of the schedule shop by the respondent, the main building of the petitioners comprising of many rooms is unoccupied. The petitioner never demanded for enhancement of rent from Rs. 600/- to Rs. 1,200/-. There are some problems in the womenfolk and hence, the petitioner wanted to occupy the main building, for which the schedule shop is the only entrance. The respondent has recently purchased a non-residential shop near I Town Police Station in his brother''s name and is intending to shift business and therefore prayed the Court to allow the petition."

The tenant-respondent herein filed a counter admitting the landlord and tenant relationship. It was further pleaded that no agreement is executed undertaking to vacate within one year from 1-12-1986 or without any notice, he has been paying monthly rent regularly. The schedule shop is not the main entrance to the building and he has let it out for non-residential purpose. The main entrance of the building is towards North of the building. The petitioner has closed the Southern side entrance and has been using the Northern side doorway. The petitioner is not intending to start cloth business in a shop let-out to Sivasankar Reddy. When the petitioner made an attempt to vacate forcibly, the respondent filed O.S. No. 88/96 and obtained interim injunction. The Commissioner has reported that the main entrance is towards North. There are no bond fide requirements for the petitioner. The petitioner has got several residential and non-residential buildings in the name of his brothers and earlier to the respondent also the said premises was being let-out for non-residential purpose and therefore prayed the Court to dismiss the petition.

The learned Rent Controller recorded the evidence of P.Ws.1 and 2 and R.Ws.1 to 4, and marked Exs.A.1 to A.12, and on appreciation of the evidence ordered eviction. Aggrieved by the same, the tenant carried the matter by way of appeal C.M.A.No. 6/2000 on the file of Senior Civil Judge-cum-Appellate Authority, Nandyal, and the learned Judge reversed the same. Hence, the present CRP.

Sri O. Manohar Reddy, the learned Counsel representing the revision petitioner-landlord had taken this Court through the evidence available on record and would contend that in the facts and circumstances of the case, the ground of bona fide requirement is well established. The learned Counsel also had taken this Court through the evidence available on record and the findings recorded in this regard. The learned Counsel pointed out that the Appellate Authority had not appreciated the evidence on record properly. The learned Counsel also placed reliance on Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another, ; Urimi Kamakshamma (died) and Others Vs. Bolem Seethamma, ; Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, ; Mohd. Moonuddin v. A. Yadagiri, 1982 (2) ALT 154 B. Ataullah Vs. K. Nisar Ahmed, ; R.C. Tamrakar and Another Vs. Nidi Lekha, ; M.L. Prabhakar v. Rajiv Singal, (2001) 2 SCC 355; P.S. Pareed Kaka and Others Vs. Shafee Ahmed Saheb, ; and Akhileshwar Kumar and Others Vs. Mustaqim and Others, .

On the contrary, Sri Bal Ram Reddy, the learned Counsel representing the respondent-tenant had explained the facts and circumstances and also the findings recorded by the Appellate authority and would contend that in the facts and circumstances of the case, the ground of bona fide personal requirement had not been established. The learned Counsel placed reliance on Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, and Dr. Madhusudan Mahuli v. Lambu Indira Bai, 1987 (2) ALT 504.

Heard the Counsel on record.

The substance of the pleadings had already been stated supra. P.W.1 in his cross-examination admitted that there is another house nearby but however this witness deposed that the said house belongs to his father. The said house is the immediate back of the scheduled premises. This witness also deposed that there is a doorway to reach the residential premises bearing No. 1/287 and this door can be locked by the northern side also and the same ultimately touches the Sunkulamma Street of 5th ward and they intended to demolish the building for the purpose of reconstruction. It is pertinent to note that relating to the same, the landlord had not filed any application for approval of municipal plan for construction of any new building and no acceptable documentary evidence at least had been placed in this regard. RW.3-the Town Surveyor had deposed that Door No. 250/1 is not under encroachment and whenever they give notice for removal of the encroachment, they will be drawing a tar mark showing the encroachment portion, which may have to be removed in respect of disputed building. There is no such encroachment. It is needless to say that it is for the landlord to establish that the premises is bona fide required for the purpose of repairs. He had not taken any steps to apply for the same to the Municipality either for proceeding with the repairs or to demolish the building. The inherent improbabilities in the stand taken by the landlord had been discussed at length, at Para 14 by the Appellate Authority.

The Counsel representing the revision petitioner relied upon:

In Dattatratya Laxman Kamble v. Abdul Rasul Moulali Kotkune and Anr. (supra), while dealing with the ground of "reasonably and bona fide required by landlord" under Bombay Rents, Hotel and Lodging House Rates Control Act, it was held:

"Sections 15 and 15A are not applicable in this case and hence we are not bothered about their implications. The grounds mentioned in Clause (g) of Section 13(1) is couched in a language to provide emphasis to the genuineness of the requirement of the landlord by using the words "reasonably and bona fide required by the landlord". In fact both terms (reasonably and bona fide) are complimentary to each other in the context, for, any unreasonable requirement is not bona fide. Vice-versa can also be spelt that if the requirement has to be bona fide it must necessarily be reasonable also. But when the Legislature employed the two terms together the message to be gathered is that the requirement must be really genuine from any reasonable standard. All the same, genuineness of the requirement is not to be tested on a part with dire need of a landlord because the latter is a much greater needed."

In Urimi Kamakshamma (Died) and Ors. v. Bolem Seethamma (supra), it was held:

"The question, however, is whether the landlady is disentitled to seek eviction of the tenant-respondent when one of landlady''s sons started business in another non-residential premises, which fell vacant during the pendency of the Rent Control case. This question no more res integra.

Even where one of the sons of the landlady or a close relative is in occupation of a non-residential building either for the purpose of family business or for the purpose of business of son or other relative, Section 10(3) (a)(iii) of the Act, is not a bar to seek eviction of the tenant. In M. Padmanabha Setty Vs. K.P. Papiah Setty, . The Apex Court held:

A contention was also raised that another shop had been purchased by the mother of the respondent with the amount loaned by the respondent and that on that ground it could also be said that the respondent was entitled to possession of that shop as well. This contention has been repelled by the High Court and rightly so. High Court upheld the finding of the Courts below that the respondent required the suit premises for his personal occupation for conducting the business and that these findings were neither perverse or based on any extraneous irrelevant material. High Court was also of the view that the Act did not prohibit eviction of the tenant by the landlord if the members of the family of the landlord possessed other non-residential premises. Even though the respondent and his brothers were conducting business on partnership basis in M/s. Seetha Traders, yet it was no ground to contend that the requirements of respondent is not bona fide.

I have already held that the landlady sought eviction of the tenant for the bona fide requirement of commencing business by her two sons namely Lingeswara Rao and Lakshmi Suryanarayana. When a landlord has several dependent sons and seeks to evict the tenant from non-residential premises for commencing business by one of his sons, the mere fact that during the pendency of the Rent Control proceedings, one of the sons started business in a non-residential premises which fell vacant upon the vacation of the premises by another tenant, in my considered opinion, does not act as a bar to evict the tenant u/s 10(3)(a)(iii) of the Act.

Lastly, I must observe that the learned appellate authority misdirected himself in not addressing the question correctly. As per second proviso to Section 10(3)(a)(iii) of the Act, if a landlord obtained possession of a building under the same clause, that alone will act as a bar from seeking possession of non-residential building. Admittedly, another tenant of the landlady, Purnachandara Rao handed over vacant possession of the premises bearing Municipal No. 11/811 after receiving the eviction notice and after filing RCC No. 42 of 1982 against the respondent. The landlady did not obtain possession of the vacant premises from Purnachandara Rao u/s 10(3)(a)(iii) of the Act. It is well settled that when a Tribunal addresses the wrong question, it amounts to misdirection in law, and is liable to be corrected by the revisional authority."

In Urimi Kamakshamma (Died) and Ors. v. Bolem Seethamma (supra), it was held at Para 13, as hereunder:

"Chambers 20th Century Dictionary defines bona fide to mean "in good faith : genuine". The word "genuine" means "natural : not spurious : real : pure : sincere". In Law Dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."

In Mohd. Moonuddin v. A. Yadagiri (supra) it was held that even in case where there are no lapses on the part of the tenant, still the necessity of the landlord also has been taken care of and in a situation where the landlord establishes the requirement as bona fide for his personal occupation of business the necessity or the inconvenience of the tenant is subordinated to the bona fide requirement of the landlord. In a case where the eviction is sought for on the ground of bona fide requirement and if all the ingredients of bona fide requirement are satisfied the ground of hardship to the tenant does not assume any significant dimension. Even in a situation where there is great hardship to the tenant and equally the bona fide requirement has been proved satisfactorily, the tilt should be in favour of the landlord.

In B. Ataullah v. K. Nisar Ahmed (supra), it was held:

"Further, relating to the theory of the tenant that the landlord thought of this eviction petition only because his demand for enhanced rent repeatedly was not acceded to, also cannot be believed since in the evidence of PW.1 he had categorically stated that it is a voluntary payment inspite of his repeated requests to the tenant to vacate the premises. In the light of this background, the ground of bona fide requirement of the landlord should be taken as a ground taken by the revision petitioner relating to his family and with a view to improve the income of the family as such. In Mangilal Mathi v. Kishen Rao, 1972 (2) APLJ 8, it is held as follows:

"In order to show the bona fides of the proposal of the landlord to commence the business it is not necessary that he should have made all the necessary arrangements. Unless the premises itself is available for occupation, the landlord would not be in a position to make any other preparation like obtaining the licence or placing orders for the supply of goods in fact make any other preparation for commencing the business.

The claim of bona fides when asserted by the landlord can be demolished by the tenant by proving some positive acts like letting out the premises in the occupation of the landlord subsequently or pressing the tenant for enhancement of the rent for the premises after he had claimed eviction or the like. When these facts are not established it cannot be said that the landlord is not acting bona fide".

In Venkati Penchalaiah v. Md. Muniruddin, 1980 (1) An.WR 164 it is held as follows:

"A mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of commencing a new business is not enough and decisive. The truth of the assertion and its bona fide character must be established to the satisfaction of the Court. The bona fide requirement need not be of absolute necessity. It is enough if the requirement is reasonable. There is no yardstick for measuring the genuineness of the plea of bona fide requirement. Each case necessarily depends upon its own facts. What is necessary for the Court to determine is whether the landlord genuinely needs the premises for commencing a new business and whether he makes the demand honestly and in good faith. In other words, the landlord should not be actuated by any oblique motive of realising some other extraneous purpose. The Court must therefore be necessarily satisfied in the first instance as to the absence of any oblique motive or mala fide on the part of the landlord before it is satisfied as to the positive existence of bona fide requirement of the premises by the landlord. The claim of bona fides asserted by the landlord can be demolished by the tenant by proving some positive facts like letting out some other premises in the occupation of the landlord subsequently or pressing the tenant for enhancement of the rent for the premises in question. Once the Court is satisfied that the landlord requires the premises bona fide for starting a new business. It is not for the Court to probe into the reasons that prompted the landlord for choosing that particular business or question the prudence or soundness of the proposed venture."

There is no evidence to conclude that the petitioner has any oblique motive or mala fides in seeking eviction of the respondent from the premises. P.Ws.1 and 4 have categorically deposed that they want to occupy the premises to start business in electrical goods and their requirement is true and bona fide. In Shaik Pedda Moulali v. Srerama Murthy, 1973 APHN 223, it is held as follows:

"Merely because the tenant had been there for a long time and he built up good will and business, it does not mean he can stay there for all time. He can seek alternative accommodation and has to give place to the landlord if his need is genuine and bona fide.

As long as private ownership is recognized by law and the requirements of the landlord are bona fide and is also reasonable, and it is not also actuated by any oblique or mala fide motive, his claim should prevail, provided that the disadvantage caused to the tenant does not far outweigh the advantage causes to the landlord".

In Mohd. Mooruddin v. A. Yadagiri, 1982 (2) ALT 154 it was held as follows:

"Even in case where there are no lapses on the part of the tenant, still the necessity of the landlord also has been taken care of and in a situation where the landlord establishes the requirement as bona fide for his personal occupation of business the necessity or the inconvenience of the tenant is subordinated to the bona fide requirement of the landlord. In a case where the eviction is sought for on the ground of bona fide requirement and if all the ingredients of bona fide requirement are satisfied the ground of hardship to the tenant does not assume any significant dimension. Even in a situation where there is great hardship to the tenant and equally the bona fide requirement has been proved satisfactorily, the tilt should be in favour of the landlord".

It is no doubt true that the revisional powers, as pointed out by the learned Counsel for the respondent, are not as wide as appellate powers. But at the same time in a case of this nature where a well-considered order of the Court of first instance had been reversed by the appellate authority and where there is overwhelming evidence in favour of the landlord-revision petitioner, in my considered opinion, it is a fit case for interference u/s 22 of the Rent Control Act. In fact, as far as Ex.B.1 and also the evidence of P.W.1 and P.W.4 in this regard is concerned, it had been well explained and in the light of the admissions made by RW.1 relating to the employment or otherwise of P.W.4, it cannot be said that the landlord does not require the schedule premises bona fide.

Coming to the question of comparative hardship in S. Gopinath Pillai''s case, it was held that the consideration of relative hardship of landlord and tenant, which is a mandatory requirement when demises premises is required as additional accommodation, is not relevant consideration to decide whether the requirement of landlord is bona fide for the proposed business u/s 10(3)(a)(iii) of the Rent Control Act. Sri Somakonda Reddy, learned Counsel for the tenant also had not disputed this proposition of law."

In R.C. Tamrakar and Anr. v. Nidi Lekha (supra), it was held that while deciding bona fide requirement of the landlord, extraneous consideration not to be taken into account and where tenant had been transferred to another town and he living there with his wife, the averments that suit premises were required for accommodation of ailing grandmother of tenant and his son, who is doing business there, were extraneous consideration.

In M.L. Prabhakar v. Rajiv Singal (supra) it was held that bona fide requirement of landlord and alternative accommodation, suitability to be determined on basis of the convenience of the landlord and members of his family as well as the totality of the circumstances, including their professions, vocation, lifestyle, habits and background.

Strong reliance was also placed on P. S. Pradeep Kaka and Ors. v. Shafee Ahmed Saheb (supra) and Akhileshwar Kumar and Ors. v. Mustaqim and Ors. (supra).

The learned Counsel placed reliance on Hameedia Hardware Stores v. B. Mohan Lal Sowear (supra) wherein it was held that a landlord seeking eviction of a tenant from a non-residential premises u/s 10(3)(a)(iii) of the Act in order to succeed in his petition should establish that he bona fide requires the premises in addition to proving the other ingredients referred to therein. Strong reliance was also placed on Dr. Madhusudan Mahuli v. Lambu Indira Bai (supra).

The decisions referred to supra had been delivered depending upon the facts and circumstances. In the light of the facts of the present case, clear findings had been recorded by the Appellate Authority that the stand taken by the landlord that there is some problem for ingress and egress and the same may have to be removed and the reconstruction to be taken up had not been established and the said stand was disbelieved. It is needless to say that in the light of the findings recorded, the ground of bona fide personal requirement is not established. Hence, the Appellate Authority arrived at a conclusion that this ground is made only with a view to throw the tenant out and there are no bona fides on the part of the landlord in praying for eviction. This Court does not see any perversity or unreasonableness in the findings recorded by the Appellate Authority and hence, the revision petition is devoid of merits and the same shall stand dismissed. No costs.