Gandepalli Samudralu vs Penugonda Satyavathi and Others

Maithli Sharan, J.—The petitioner has preferred this revision petition against the order dated 7-10-1987 passed by the Principal Subordinate Judge-cum-Appellate Authority, Visakhapatnam in R. CA. No. 18 of 1983 confirming the order of the Principal District Munsif-cum-Rent Controller in R.C.C.No. 67 of 1978 date 16-9-1983.

The brief facts leading to this revision petition may be summarised thus One Penugonda Sarvaji, the original landlord (the respondents herein are his Legal Representatives), filed R.C.C. 67 of 1978 against the petitioner (tenant) in the Court of ''the Principal District Munsif-cum-Rent Controller, Visakhapatnam u/s 10 (3) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as ''the Act'') for his eviction on the ground that he was carrying on business in fancy goods in rented premises and he has two major sons and hence he bona fide required the disputed accommodation for carrying on the said business. The disputed premises were let out to the petitioner for non-residential purpose on an oral lease. The petitioner (tenant) contested the case, but it was allowed and eviction was ordered on 16-9-1983 against him. Aggrieved by the said order and decree, the petitioner filed R.C.A. No. 18 of 1983 in the Court of the Principal Subordinate Judge-cum-Appellate Authority, Viskhapatnam. The appeal was dismissed on 7-10-1987. Now, aggrieved by this order, the petitioner has failed the instant C.R.P.

I have heard the learned counsel on both the sides at length and have carefully gone through the record of the case.

The learned counsel for the petitioner has raised three contentions before me. I will deal with them one by one. The first contention is that in the original R.C.C. 67/78 filed by the landlord, it has been shown that the petition was filed u/s 10(3) of the Act, but it is nowhere specifically mentioned that it was filed u/s 10 (3) (a) (iii) of the Act, and hence it could not be construed that it was filed under that provision. According to the learned counsel, it was so considered by the Courts below in deciding the case, hence they had erred in law. On this basis, the learned counsel has argued that this revision petition deserves to be allowed. I am afraid, his argument is not sound. Actually, no particular section of the Act is required to be mentioned in the petition; if it is mentioned well and good, but, it cannot be taken to hold the field. It is the averments and the allegations made in the petition which are to be looked into for making out the case of the petitioner. Looking to the various averments made in the original petition, it is but dear that the provisions of Section 10 (3) (a) (iii) of the Act were attracted in the case.

The second contention of the learned counsel for the petitioner is that there is variation between the pleadings and proof and hence the case of the respondents deserves to be thrown out. He has argued that in the original petition, the landlord had averred that he had no other non-residential building except the disputed premises, but in his statement on oath, he had stated that there is a shop by the side of the disputed shop and it is of equal size and further that it had been let out by him to his nephew. According to the learned counsel, this shows that he had another non-residential premises of his own. lam afraid, on this only count it could not be said that there is a variation between the pleadings and proof and the petitioner cannot be allowed to say that the landlord should have asked his other tenant i.e. his nephew to vacate those premises. Even if the landlord had other non-residential premises which had been let out to some other person, it could not be assumed that the other premises were in the occupation of the landlord and the landlord could be asked to first get the possession of those premises.

The third and the last contention of the learned counsel for the petitioner is that the disputed premises were let out for both residential and nonresidential purpose and, thus, it was a composite lease and since there is no provision in the Act for eviction from the composite lease premises, the petition of the landlord should have been dismissed. In support of this contention, the learned counsel for the petitioner has drawn my attention to the statement of the original landlord wherein he has deposed that in the room they (i.e. the tenants) sleep and on the verandah they are doing business and both the verandah and room were let out to them by him. This statement, can in no way go to mean that the disputed premises were let out for residential and non-residential purpose; if the tenants used the non-residential premises i.e. the shop for sleeping in the night and for doing business also, that will not go to mean that the original lease was a composite lease. That apart, the petitioner did not raise this point in both the courts below nor he pleaded this fact in his counter filed in the Courts below. Admittedly, there was an oral lease of the disputed premises.

In the above connection, the learned counsel for the petitioner has also argued that the appellate Court had relied on a ruling reported in Chilka Manikya Rao v. D. Rama Subbarao 1976 (1) An.W.R. 100 which was later overruled by a Full Bench decision of this Court reported in Smt. Vidyavathi Bai and Anr v. Shanker Lal and Anr. 1987 (2) ALT 550 wherein it has been held that the landlord in occupation of a non-, residential building as a owner is not entitled to eviction of a tenant in occupation of another non-residential building of landlord. Further, basing his argument on this Full Bench decision of this Court, the learned counsel has vehemently argued that in view of this Full Bench decision, the landlord could not file eviction petition against the petitioner. Again, I am afraid, the argument of the learned counsel for the petitioner does not hold the field in view of the later Full Bench decision of this Court in Vijayalaxmi Printing Press Vs. Nandula Shankar and Others, wherein it has been clearly held that where the landlord is not in occupation of a non-residential building of his own, but conducting his business as a tenant in a non-residential premises belonging to another person, then, he is not debarred from seeking possession of his building which is in occupation of a tenant for his bona fide requirement. In this later Full Bench Decision, the earlier Full Bench decision was also considered and explained and held to be good law, in so far as it relates to first part of Section 10(3) (a) (iii) of the Act. It has further been held that since the earlier case was not a case relating to second part of Section 10(3) (a) (iii), the said decision has no effect on the second part of the section. In the instant case, undisputedly, the existing premises in which the landlord was carrying on his business of fancy goods were not his own; it was a rented accommodation. Thus, the later Full Bench decision of this Court (3) supra will apply in this case, and the landlord could not be said to have been debarred from filing the case for eviction against the petitioner.

In view of the above detailed discussion on the legal and factual aspects involved in the case, this petition deserves to be dismissed. Thus, it is hereby dismissed and the impugned order passed by the Principal Subordinate Judge-cum-Appellate Authority is upheld. No costs.

However, on the request of the learned counsel for the Petitioner, the tenant is granted two months time to vacate and hand over the premises to the landlord.