Garipalli Rajasree vs Kondapuram Mallesha and Brothers and Others

V.V.S. Rao, J.—These civil revision petitions filed u/s 22 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act, for brevity), arise out of same proceedings. This common order shall dispose of both the revision petitions. C.R.P. No. 1284 of 2004 is filed against order dated 30.1.2004 in R.A. No. 240 of 1999 passed by the Chief Judge, City Small Causes Court, Hyderabad, whereby and whereunder learned appellate authority confirmed rejection order of learned Principal Rent Controller in R.C. No. 1 of 1997 filed by petitioner (landlady) for eviction of respondent (tenant) from non-residential premises (petition schedule premises or mulgi) bearing No. 7-1-635 (ground floor) situated at Subhash Road, Market Building, Secunderabad. During pendency of R.A. No. 240 of 1999, landlady filed I.A. No. 1025 of 2002 under Rule 11(2) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961, requesting to receive documents as additional evidence. The same was dismissed by learned appellate authority by order dated 30.1.2004. C.R.P. No. 1289 of 2004 is filed against the said order.

Petitioner, landlady, is owner of petition schedule mulgi bearing No. 7-1-635, having got the same under a Will executed by her mother-in-law. Her husband, Koteswara Rao, is owner of a non-residential mulgi bearing No. 7-1-636 comprising ground floor and first floor. He is carrying on cloth business in the name and style of ''Garipalli Konaiah'' in his own premises. This is adjacent to petition schedule mulgi, which was let out to a firm, M/s. Kondapuram Mallesa and Brothers, for cloth business, in the name and style of ''Bombay Cloth Stores''. In August 1978, respondent was inducted as tenant on a monthly rent of Rs. 720/-. Landlady has three sons, namely Bharath Kumar, Ashwath Kumar and Santosh Kumar, aged 20 years, 18 years and 17 years respectively. Elder son, Bharath Kumar, was assisting his father in cloth business. She sought eviction of tenant on three grounds, namely, default in payment of municipal taxes (rent), bona fide requirement for personal occupation for starting new business for sons, and tenant securing alternate accommodation. Tenant opposed eviction petition. He alleged that there was no notice to pay municipal tax, that landlady has no financial wherewithal and her sons are not experienced in cloth business and that tenant firm has not secured any alternate accommodation for the firm, though individual partners secured alternate accommodation to provide business facilities to large number of members of joint family. Original authority as well as appellate authority held against landlady and dismissed eviction petition.

Learned Counsel for petitioner/landlady does not press ground of wilful default in this revision. Indeed as found by both the authorities landlady failed to prove that under tenancy, lessee was required to pay municipal tax and there was no notice to that effect. In addition to this admittedly landlady took Rs. 30,000/- as deposit and when tenant has deposited advance rent, question of wilful default does not arise. In these revision petitions, therefore, questions which need to be examined are whether landlady proved her case of personal occupation bona fide for commencing new business by her sons and whether tenant has secured alternate accommodation and for that reason he is liable to be evicted?

Bona fide requirement for personal occupation

There is no dispute that landlady has three sons. Two are majors; Bharath Kumar and Ashwath Kumar. There is also no dispute that her husband, Koteswara Rao, is owner of adjacent premises No. 7-1-636 in which he is carrying on cloth business. Landlady alleged that her two sons gained experience working in their father''s shop and therefore she required premises for personal occupation. Learned Rent Controller came to the conclusion that requirement of premises for personal occupation is not bona fide. Her husband was examined as PW. 1, her elder son Bharath Kumar as PW.2 for whose business eviction was sought. Learned Rent Controller disbelieved plea on the ground that landlady has no wherewithal to commence business and that her sons did not have any experience in cloth business. While doing so learned Rent Controller also observed that business of PW. 1 was not flourishing well, that business of tenant was doing well and therefore landlady filed eviction petition. He also observed that landlady failed to produce bills and other papers scribed by her two sons to substantiate allegation that they were assisting their father. In the order of learned appellate authority there is no much discussion on this aspect.

Learned Counsel submits that when landlady required tenanted premises for personal occupation for commencing business, it is not incumbent on landlady to prove that she has money and that her sons had experience. There is force in the submission.

It is well settled that it is always a matter of inference when owner of premises seeks leased premises for personal occupation for commencing business by himself or his relatives. There is nothing wrong in owner of building seeking eviction on that ground. It is not even necessary nor mandatory for the owner to prove that persons for whose business premises is required have knowledge or possess knowhow. This view is also supported by decision of Supreme Court in Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Another, , wherein it was held as follows:

If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach-Many a business has flourished in this country by leaps and bounds which was started by a novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned Single Judge that acquisition of sufficient knowhow is a precondition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that "no experience no venture.

(emphasis supplied)

In Challaram and Co. Vs. Pragallapati Adi Kumar and Another, and D. Krishna Rao and Another Vs. K.V. Nayak and Another, , this Court held that amount required for the purpose of starting business need not be available on the date of petition nor tenant can question creditworthiness of landlady to start business. Therefore reasons given by authorities below are wholly unsustainable and both the authorities misdirected themselves on this aspect.

During pendency of eviction petition tenant filed I.A. No. 147 of 1999 for appointment of Advocate Commissioner to inspect premises No. 7-1-636 comprising ground and first floor and also first floor of petition schedule premises No. 7-1-635. Tenant''s plea was that there is a mulgi in first floor of PW.1''s premises in addition to another mulgi in the first floor of petition schedule premises belonging to landlady. Advocate Commissioner appointed by learned Rent Controller visited premises and filed a report pointing out that there is a staircase within premises No. 7-1-636 leading towards first floor and that it has also access from eastern side of staircase to first floor of petition schedule premises. There is no door or partition between first floor premises of premises No. 7-1-636 and petition schedule premises No. 7-1-635. From this learned Rent Controller came to the conclusion that both first floor mulgis are in possession and occupation of PW.1 out of which PW.1''s first floor mulgi was being used as office of Cloth Merchants'' Association and therefore eviction petition is barred. In a nutshell, learned Rent Controller relied on Section 10(3)(a)(iii)(b) of the Act to come to the conclusion that when landlady has already occupied another non-residential premises, which is her own, she cannot seek eviction of tenant and that the plea of personal occupation bona fide is not proved. Appellate authority agreed in toto with learned Rent Controller.

Learned Counsel for landlady submits that commencing cloth business in first floor is not feasible. Even according to Commissioner''s report, there is no direct access to first floor of petition schedule premises and one has to go through first floor premises belonging to P.W.1. In such a case eviction petition on the ground that it is barred u/s 10(3)(a)(iii)(b) of the Act is erroneous. He placed reliance on Prativa Devi Vs. T.V. Krishnan, , Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, and Ragavendra Kumar Vs. Firm Prem Machinary and Co., .

In Prativa Devi''s case (supra), it was held as below:

The landlady is the best judge of her residential requirement. She has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlady how, and in what manner, she should live or to prescribe for her a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlady of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances.

(emphasis supplied)

In Shiv Sarup Gupta''s case (supra), it was held as below:

The availability of an alternative accommodation with the landlady i.e., an accommodation other than the one in occupation of he tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlady if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlady was not a felt need or the state of mind of the landlady was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14, which speaks of non-availability of any other reasonably suitable residential accommodation to the landlady, would not be satisfied. Wherever another residential accommodation is shown to exist as available then the Court has to ask the landlady why he is not occupying such other available accommodation to satisfy his need. The landlady may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlady has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlady, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlady is seeking eviction. Convenience and safety of the landlady and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlady and his family members, their style of living, their habits and the background wherefrom they come.

(emphasis supplied)

In Ragavendra Kumar''s case (supra), Supreme Court held that landlady is best judge of her requirement for residential or business purpose, that she has got complete freedom in the matter and that if landlady wants to evict tenant from the premises for starting business, as it was suitable, the same cannot be faulted.

The law therefore does not admit any doubt that even if landlady has some other non-residential premises or one of her relatives has such premises, she can still seek eviction of tenant for commencement of business. It is not for tenant to suggest that available non-residential space is enough for landlady to commence business and on that ground raise a plea that requirement for personal occupation is not bona fide. In the present case, after receiving report of Advocate Commissioner, learned Rent Controller came to the conclusion that landlady can commence business for her son on first floor of petition schedule premises and that even if there is no convenient access to said first floor premises, it is not sufficient ground to seek eviction of tenant occupying first floor. When it has come on record that first floor premises of petition schedule has no direct access except through first floor of premises No. 7-1-636, reasoning given by learned Rent Controller is erroneous. The inference drawn with reference to availability of first floor of petition schedule premises and denying relief for those reasons is misdirection in law. The same is unsustainable.

A prudent businessman would seldom plan a cloth business in a first floor building especially when such business is conventional one, not the type of mega cloth/readymade garments shop, which are coming up in retail sector. Here a reference may be made to Dhannalal Vs. Kalawatibai and Others, . In the said decision, Kalawatibai along with her two sons succeeded to a building, after death of her husband. By that time there were two tenants occupying ground floor for business she filed eviction suit on the ground of bona fide personal occupation for commencing/shifting of readymade garments business, which was being run at that time in a rented accommodation. Learned Rent Controller Authority as well as Madhya Pradesh High Court upheld claim of landlady and ordered eviction. The Supreme Court inter alia considered question whether nature of requirement pleaded by landladies was available to them to seek eviction under Madhya Pradesh Accommodation Control Act, 1961. It was contended that landladies having secured leased premises, cannot seek eviction of tenants from ground floor and that landlady is already having first floor building in her possession where she can start readymade garments business. This plea was rejected by Supreme Court observing as under:

To amount to an alternative non-residential accommodation so as to defeat the requirement of the landlady for the suit premises, it should be a reasonably suitable non-residential accommodation. It should be suitable in all respects as the suit accommodation is. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (supra), this Court has held that an alternative accommodation, to entail denial of the claim of the landlady, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlady is seeking eviction. The availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to the bona fides of the landlady if he unreasonably refuses to occupy the available premises to satisfy his alleged need. The bona fides of the need of the landlady for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlady, his subjective choice shall be respected by the Court. For the business, which respondents 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.

(emphasis supplied)

The above reasoning of Apex Court can be respectfully borrowed and adopted for supporting view that observations and inferences drawn by trial authority is erroneous and cannot be sustained. It should be remembered that unless the case falls u/s 10(3)(a)(iii) of the Act, requirement of landlady is always presumed to be bona fide unless contrary is proved by tenant to rebut the case of landlady. It is sufficient for landlady to prove that she has no public or private job or she has no other business or she closed down earlier business and wants to commence new business for herself or one of her closely related persons. The defence available to tenant in such a case is to show that landlady is in occupation of another building which is his or her own and/or that plea of personal requirement for bona fide commencing a new business or shifting/continuing existing business is not in good faith and that such plea has been invented only to get rid of tenant by evicting him. In the present days of economic liberalization and democratized financial services model adopted by banks and financial institutions, want of finance is no ground to turn down plea of landlady. Similarly when goods, services, knowhow and management can be outsourced by a person, plea that landlady has no experience, exposure, knowhow and wherewithal to commence business would certainly be an irrelevant factor, and cannot be a basis for dismissing eviction petition. Therefore this Court holds that landlady is entitled to seek eviction of respondent firm from petition schedule premises on the ground of personal requirement for bona fide commencing business by her/through her sons, as pleaded by her in paragraph 4 of eviction petition. The point is accordingly held in favour of petitioner/landlady.

Whether tenant secured alternate accommodation ?

This point does not require elaborate examination. Managing Partner of respondent firm, K. Mallesha, gave evidence as R.W.1. He admitted that landlady has no access to go to first floor of petition schedule premises and that there is access to go to the same from premises No. 7-1-636. He also admitted that respondent expanded its business in another shop in the name and style of ''Narsing Cut-piece Centre'', which is also a firm of his family members. He further admitted that they have another cloth shop in the Market Street, which they purchased recently and that they have another premises No. 7-1-627 at Allauddin Market, which is being used as godown. R.W.1 also admitted that they have big premises in Gandhi Nagar where Samatha Degree College is being run and that they also own three storeyed building where a computer facilitation centre is existing and that they own another premises at L.B. Nagar, which is let out to automobile body-building workshop. In addition to that, admittedly they have also properties at Snehapuri and Nacharam, which they let out to Navatha Road Transport Company. In the face of these admissions, it was erroneous for learned Rent Controller as well as appellate authority to opine that alternate accommodation does not belong to partners of respondent firm and that landlady failed to prove that any of the partners of the firm have acquired alternate accommodation. The observations made by lower authorities are perverse. R.W.1 clearly admitted that they have number of premises which were acquired for their family members. When entire business is being carried on by joint family members as partners and admittedly at least two non-residential shops situated behind petition schedule premises were already in their possession, it would be improper and irregular to reject evidence on record and reject plea of landlady.

The evidence clinchingly shows that tenant has already secured alternate accommodation where they already commenced business in the name of other family members, that they have expanded business and that when R.W.1 admitted that they have already acquired another premises for expansion of business in the same area, it must be held that tenant has already acquired another premises and tenant is liable to be evicted from petition schedule premises. For these reasons, this Court holds that findings recorded by both the Authorities below suffer from illegality and irregularity. The point is held in favour of landlady and against respondent/tenant.

In the result, for the above reasons, C.R.P. No. 1284 of 2004 is allowed with costs. The order dated 13.7.1999 in R.C. No. 1 of 1997 on the file of the Court of Principal Rent Controller, Secunderabad, and the order dated 30.1.2004 in R.A. No. 240 of 1999 on the file of the Court of Chief Judge, City Small Causes Court, Hyderabad, are reversed, and R.C. No. 1 of 1997 is allowed directing respondents to vacate petition schedule premises and handover vacant possession within two months from the date of receipt of copy of this order. In view of the orders in C.R.P. No. 1284 of 2004, no orders are necessary in C.R.P. No. 1289 of 2004 and the same shall stand disposed of.