D J Abhay Shankar, Secunderabad vs M. Sandhya Rani, Secunderabad

The revision is preferred by the Landlord impugning the order, dt.14.09.2015 in R.A.No.93 of 2014 passed by the Addl.Chief Judge, City Small Causes Court, Hyderabad, by setting aside the order,dt.11.03.2014 in R.C.No.164 of 2012 on the file of the Prl.Rent Controller, which is allowed with the contentions in the grounds of revision that the order of the Court below is contrary to law, and the lower appellate Court failed to either apply the case law or to discuss several of the decisions that were cited at the bar. The lower appellate Court erred in reversing the orders of the eviction passed by the trial Court considering basic concept of bonafide requirement of additional accommodation to the Revision Petitioner who had successfully pleaded and proved before the trial Court all the criteria including experience readiness, finances and other aspects. The lower appellate Court did not consider the fact of requirement of additional accommodation for the use of school office by the Landlord which fact was already stated in the eviction petition and also the chief examination of P.W.1. The lower appellate Court erroneously relied upon rough sketch in which not given the dimensions of any of the shops which are on either side of the petition schedule mulgi. Hence, the order of the lower appellate Court is liable to be dismissed by confirming the order of the trial Court.

The case in R.C.No.164 of 2012 filed by the revision petitioner-Landlord against the Revision respondent-Tenant is that the Revision petitioner is the owner of the premises bearing No.3-5-214, Laxminagar, Picket, Secunderabad and has been running a school in part of premises under the name and style as Vedavathi Memorial High School and he requires the schedule property as additional accommodation for the school office. He further submitted that the respondent’s mother by name V.Savithiri had obtained the schedule property on rent and carrying on tailoring business there in the name and style as Sona Tailor. Since the schedule property was bonafidely required, the revision petitioner requested the respondent’s mother to vacate the premises and hand over the vacant mulgi but she failed to vacate for which he filed a case for eviction in R.C.No.155 of 2008 on the file of the Addl.Rent Controller, Secunderabad. Subsequently the mother of the respondent died on 06.12.2008 and that case was dismissed for default on 15.12.2009. After the death of respondent’s mother, the respondent is continuing in the schedule property and has been carrying on tailoring business in the name and style of ‘New Sona Tailors”. The revision petitioner also requested the respondent to vacate the schedule mulgi but she failed to do so. Then the petitioner got issued a legal notice on 07.05.2012 to the respondent by terminating the tenancy and calling upon to vacate the schedule mulgi under Ex.P.1 which is acknowledged by Ex.P.3 and issued reply under Ex.P.4 dt.28.05.2012 but refused to vacate the mulgi.

The respondent’s counter contest, while admitting tenancy, denying eviction petition averments including bona fide requirement and entitlement of premises to vacate are that the rent of Rs.300/- p.m. was enhanced from time to time to the present one at Rs.1551/- p.m. exclusive of the electricity charges. Recently the revision petitioner stopped providing drinking water and also prevents usage of common toilets to evict one way or other so to let out the schedule property to third persons for more rent. The petitioner is having 10 mulgies in the premises No.3-5-214 and also having open place inside the school premises and first and second floors are let out to several tenants. If the revision petitioner is in need of additional accommodation for school office and the requirement of the schedule premises is bona fide, he can occupy the first floor which is very convenient and spacious than the schedule mulgi. She further submitted that the entire family of her is depending on the income of the tailoring business running in the schedule property and if she is evicted, she would suffer irreparable loss and hardship and sought for dismissal of the eviction petition as not bonafide and the leasehold premises in her tenancy no way required by the eviction petitioner.

During the enquiry, on behalf of the petitioner besides his mother(GPA) as P.W.1, cause examined one M.R.Karanchander as P.W.2 and got marked Exs.P.1 to P.6 (copy of legal notice, dt.07.05.2012 by the petitioner to the respondent, Postal receipt, Postal acknowledgment, reply by the respondent to the petitioner, dt.28.05.2012, cover of courier service and notarized GPA in favour of P.W.1 by the petitioner, dt.30.04.2013). On behalf of the respondent, herself examined as R.W.1 and cause examined Smt. R.Ambika and Sri J.Kumar as R.Ws.2 and 3 and no documents are marked. After hearing of both sides and from perusal of the material on record, the eviction petition was allowed holding that the Landlord requires the schedule premises bonafidely for their personal occupation to use it as an office of the school run by him and directed the respondent to vacate and hand over vacant possession of the petition schedule property within three months from the date of order, failing which the Landlord is at liberty to evict the respondent through due process of law.

When the same is impugned by the respondent-tenant before the lower appellate Court, the lower appellate Court reversed the order of the trial Court, holding that the trial Court, in relation to the requirements of the petition schedule mulgi for additional accommodation, went wrong on surmises and blamed for the shortcomings in the eviction petition and also in the evidence in chief-affidavit of P.W.1. Particularly the contents of the para-17 of page No.11, it can be said that the trial Court without any adherence to the evidence on record and also the eviction petition pleadings, came to a conclusion that the petition schedule property is suitable and convenient to the Landlord as additional accommodation for the office purpose of the school. Upon a close scrutiny of the evidence on record, it is clear that the Landlord by hook or crook intended to evict the tenant from the petition schedule mulgi on the false ground of requirement of the petition schedule mulgi only having failed in his earlier attempt to evict the mother of the tenant and enhancement of the rents. The Landlord by suppressing material facts of owning several mulgies at a row and also the existence of two rooms on the back side of the sweet shop in which at present the office of the school is being run, not entitled for the relief which he sought, and held that the trial Court failed to notice all those things and on surmises and without basis concluded the case in favour of the Landlord though there is no worth evidence to accept the case of the Landlord.

Impugning said reversal finding of the lower appellate Court by setting aside the eviction order of R.C.No.164 of 2012 of the Rent Controller, the present revision is maintained.

Heard both sides at length and perused the material on record.

Even from the case of the respondent/tenant before the Rent Controller including from the evidence on record in her side among R.Ws. 1 to 3, leave apart the evidence of P.Ws. 1 and 2, the school is running in the ground floor and the office of the school is inside with no feasibility and free approach. Once such is the case, it is for the Landlord to choose among several premises which is convenient for the purpose of the additional accommodation in use. The tenant cannot dictate the terms if at all other shops in the first floor are convenient for the office purpose of the school and in the premises under occupation of the eviction petitioner. Once such is the case, the observations of the lower appellate Court, in reversing the reasoned findings of the trial Court which is fresh in mind of the facts having recorded the evidence with an opportunity to observe the demeanor of the parties even, is unsustainable, even merely because another view is possible. In this regard though the scope of revision is limited including u/sec.22 of the Act, to interfere on any illegality, impropriety and appreciate the facts only to that limited extent and not as if a Court of appeal of entire matter is at large for re-appreciation or fresh appreciation of the facts like a first appellate Court. Once the trial Court’s finding in respect of the requirement of the Landlord even disputed by a tenant concerned, the P.W.1-mother of the petitioner/Landlord who is the GPA holder covered by Ex.P.6, deposed of the school is running with name ‘Vedavati Memorial school’ backside of the schedule mulgi and they are suffering a space constraint and this schedule mulgi is required for the additional accommodation for the office purpose of the school, what R.W.1/respondent-tenant stated is the petitioner got 10 Mulgies in House No.3-5-214 besides open space inside the school premises and having first and second floors and the first floor is let out to residential purpose and second floor there are several portions which are let out to different tenants and the motive behind filing of the case is to evict and let out to the higher rent but not bonafidely required for the school office purpose and she also pleaded hardship to face if evicted as her family is totally dependant on tailoring business. Earlier dismissal of the eviction petition for default from death of the mother of the eviction respondent in R.C.No.155/2008 cannot be called a case on merits to say in the earlier round of litigation failed to vacate, came with the present petition as an offshoot is nothing but for the lower appellate Court to make a mountain of a mole hill therefrom. Even R.W.2, no other than the maternal aunt of R.W.1, deposed that backside room of the schedule property is presently in use of office of the school and the P.W.1 is looking after the school. R.W.2 also stated about the petitioner and his mother (GPA holder) have been running the school and P.W.1 is looking after the affairs of the school on behalf of the petitioner therefrom. From this, it cannot be said that P.W.1 has no personal knowledge of the facts being the GPA holder of the petitioner-cum-mother to depose in appreciation much less for his non-coming to witness box to draw any inference against the petitioner. The school strength is more than 250 to 350 students is also borne by record to accommodate from Nursery to 10th class and there are only 12 rooms in which the school is running for all the classes and it clearly shows including from the evidence of P.W.1 that there is a space constraint therefrom. When such is the case, the hardship suffers from the respondent is outweighed by the hardship suffers by the Landlord when compared with, which was ignored even by the lower appellate Court without proper appreciation of the findings in this regard by the Rent Controller particularly from paras-19 to 22. The trial Court also observed of the rough sketch filed clearly shows the existence of the accommodation and space constraint and other occupations and thereby there is nothing suppressing about the shops possessed by the Landlord besides the premises sought for eviction. The lower appellate Court’s observation of evidence of P.Ws.1 and 2 shows that there are 9 mulgies including the petition schedule mulgi in the ground floor and first and second floors of the building with residential portions and there is no plea by the Landlord regarding thee other premises concerned as discussed supra the Rent Controller really observed of there is no suppression of existence of other portions and the rough sketch clearly shows the other mulgies and the space constraint therefrom. The lower appellate Court at para-13 even referred the rough sketch attached to the eviction petition and it speaks about two classrooms and two office rooms indicated therein, what the lower appellate Court observed further without referring to the Rent Controller findings discussed supra is two rooms but from the rough sketch shows for office two rooms and there is no plea regarding the office accommodation not sufficient to order eviction. In fact, the evidence on record including R.Ws. 1 and 2 also speaks of the office is located in a small room on the back side and the remaining rooms are class rooms to accommodate more than 250 to 300 students for the classes 1st to 10th class and the petitioner’s mother is looking after the affairs of the school who is the P.W.1. once such is the case, the reason of space constraint and requirement of additional accommodation of Landlord outweighs hardship pleaded by the tenant. The lower appellate Court without properly adverting to it, simply held of the eviction petition is filed only to evict and to let out for more rent on surmises, is unsustainable.

Even coming to the additional evidence petition filed by the tenant in I.A.No.255 of 2015 before the lower appellate Court referred at para-23 it categorically observed by the lower appellate Court that such request cannot be permitted. But the lower appellate Court not even discussed of what is the additional evidence how it is required to consider. Once such is the case and there is no specific plea much less any cross-appeal or revision against the dismissal of the additional evidence petition of the tenant, this Court cannot consider that aspect in revision. Having regard to the above, the reversal judgment of the lower appellate Court is unsustainable and is liable to be set aside.

Accordingly, the revision is allowed by setting aside the lower appellate Court’s judgment and by confirming the Rent Controller’s eviction order and however by considering the hardship of the tenant to secure fresh accommodation meantime and vacate, failing which after 31.12.2018 by virtue of this the Landlord is entitled to execute the same to cause evict the tenant for the tenant not entitled to for further time at any cost and it is made clear that in the meantime, the RC respondent (revision respondent) has to pay as use and occupation charges of Rs.2,000/- per month from 01.01.2018 onwards in stead of existing rent of Rs.1551/- per month.

Consequently, miscellaneous petitions, if any pending in this revision, shall stand closed.