Kumar Embroidery Works vs P.V. Kasi Viswanath (Landlord)

Y.V. Narayana, J.—C.R.P. No. 3002 of 1993 is filed by the tenant whereas C.R.P. No. 3978/1994 is filed by the landlord having been aggrieved by the findings of the learned Rent Control Appellate Authority-cum-Principal Subordinate Judge, Visakhapatnam, in R.C.A. No. 13 of 1992.

The landlord filed R.C. No. 99/1987 before the learned Rent Controller- cum-Principal District Munsif, Visakhapatnam, seeking eviction of the tenant from the petition schedule premises on the grounds of wilful default in payment of rentals and bona fide requirement Originally, the father of the landlord late P.V. Chalapathi Rao let out the petition schedule first floor of the building to the tenant on monthly rent of Rs. 150/- which was subsequently enhanced to Rs. 200/- with a condition that the rent should be paid on first of every month. While so, in the family partition, the petition schedule premises and the ground floor of the building fell to the share of the landlord. The tenant attorned to the landlord on the same terms and conditions. The landlord, after succeeding to the property, requested the tenant to vacate the leasehold premises as he was requiring the same for his personal occupation, i.e., both for residential accommodation and for expansion of his business which he was carrying on in the ground floor. Even thought the tenant promised to vacate the premises, he failed to vacate the same. Then the landlord issued a notice dated 29-1-1981 and thereafter filed O.S.No. 469/1981 before the Principal District Munsif''s Court, Visakhapatnam, for eviction of the tenant, which was decreed. The relief for recovery of arrears was, however rejected. Aggrieved by the Judgment and decree in the said suit, the tenant carried the matter in appeal by filing A.S.No. 105/1983, which was dismissed. The tenant, therefore, filed S.A.No. 260/1985 and this Court allowed the same with an observation that the petitioner-landlord can file a Rent Control case for eviction of the tenant. Thereupon, the landlord filed the present petition for eviction.

The tenant filed counter stating that she has been paying the rents regularly and she never committed default in payment of rentals. It is further contended that the landlord does not require the petition schedule premises either for his residential accommodation or for non-residential purposes as he has got a palatial building at Akkayyapalem. It is further stated that the tenant is carrying on the business of Embroidery works for her livelihood; and that the landlord had recently put up the business of embroidery works in the ground floor of the petition schedule building only in order to rob the customers of the tenant and to deprive the tenant of her fruits of business so that she may vacate the premises on her one accord. It is lastly submitted that the tenant has no other house in Visakhapatnam to carry on the said business and she will be put to irreparable loss and hardship in case she is evicted from the petition schedule building.

On the basis of the above pleadings, evidence was led by both parties and on consideration of the material available on record, the learned Rent Controller allowed the petition for eviction. The matter was thereafter carried in appeal before the appellate authority in R.C.A. No. 13/1992. The appellate authority confirmed the findings of the Rent Controller with regard to bona fide requirement and set aside the finding with regard to wilful default. C.R.P.N0. 3002/1993 was filed by tenant questioning the finding of the appellate authority on the point of bona fide requirement. C.R.P.N0.3978/1994 was filed by landlord questioning the said finding of the appellate authority on the point of wilful default.

It is contended by the learned Counsel for the revision petitioner-landlord in C.R.P.N0.3978/1993 that the appellate authority erred in reversing the well considered finding of the Rent Controller on the point of wilful default. It is further contended that the appellate authority failed to see that the tenant has not been paying the rents regularly even after the filing of the petition for eviction which amounts to wilful default.

I have perused the petition filed by the landlord before the learned Rent Controller. There is absolutely no pleading anywhere in the petition with regard to the alleged default by tenant in payment of rentals either prior to the institution of the petition for eviction or during the pendency of the suit and appeal. The entire petition averments deal only with the personal requirement of the landlord. While so, even without there being any pleading in the petition, the learned Rent Controller framed an issue which reads thus:

"(2) Whether the respondent has deposited the rent regularly during the pendency of the suit O.S. 469/81, the Appeal A.S. 105/83 and this RCC?"

Even in the evidence also, there is no whisper by the landlord at any point of time with regard to the alleged irregular deposit of rents by the tenant during the pendency of either the suit or the appeal. No doubt Ex.A-4 shows that the tenant was not regular in payment of rents but there was no protest by the landlord at any point of time for the said irregular payments. He simply received the rents without any demur. This circumstance alone is sufficient to throw away the case of the landlord on this point. Thus, I am of the view that the learned Rent Controller has grossly erred in framing an issue without any foundation and in adjudicating the said issue erringly in favour of the landlord. For this reason, the learned Rent Control Appellate Authority has rightly reversed the finding of the learned Rent Controller. There are no merits in this revision. C.R.P.No. 3978 of 1993 is accordingly liable to be dismissed.

When coming to the other revision petition i.e., C.R.P.N0. 3002/1993, it is the contention of the learned Counsel for the petitioner-tenant that in view of the prohibition u/s 10 (3) (a) (i) (a) of the Act, since the landlord is already in occupation of his own residential building in Akkayapalem, he cannot seek eviction of the tenant for his residential purpose. Further, since he is not in occupation of any part of the petition-schedule building, he cannot invoke Section 10 (3) (c) of the Act and seek additional accommodation for residential purposes. It is further contended that even if it is presumed for argument sake that the landlord is seeking additional accommodation for non-residential purposes invoking Section 10 (3) (c) (since he is in occupation of ground floor of the petition-schedule premises and doing business therein), he cannot be permitted to seek additional accommodation for residential purposes, at the same time, since Section 10 (3) (c) can be invoked for any one of the two purposes i.e., either for residential purposes or for non- residential purposes but not for both the purposes. It is, therefore, contended that there is no provision under which the landlord can seek eviction of the tenant. It is also contended that even the pleadings are also vague and they do not contain the specific provision of law under which eviction was sought.

On the other hand, it is the contention of the learned Counsel for the landlord-respondent that no doubt the petition do not contain the specific provision of law under which eviction was sought for, but the pleadings are very clear to the effect that the landlord bona fide requires the building for his own occupation as stipulated in Section 10 (3) (a) (i) (b) of the Act. His contention can be understood to mean that the landlord is invoking Section 10 (3) (a) (i) (b) for seeking eviction of the tenant.

I see sufficient force in the contention of the learned Counsel for the'' respondent-landlord. No doubt, the landlord did not specify the provision of law under which he sought eviction of the tenant, but from the pleadings and the evidence that was led in support of such pleadings, it must be held that the landlord sought eviction of the petition-schedule premises on the ground of bona fide requirement for his own occupation as stipulated u/s 10 (3)(a)(i)(b) of the Act. For the sake of convenience, Section 10 (3)(a)(i)(b) is extracted below:

"10 - Eviction of tenants:

(1) .... ........ ..... (2) ..... ....... ....... (3) (a) A landlord may subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building-

(i) in case it is a residential building-

(a) ....... ........ ...... (b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead, for his own occupation;"

Therefore, what is relevant to be considered u/s 10 (3) (a) (i) (b) is whether the landlord is able to prove that he is in need of another residential building rather than the existing building which is now in his occupation. So as to prove that he is in bona fide need of another building i.e., the petition- schedule premises, instead of the residential accommodation in Akkayapalem, the landlord adduced evidence. It goes to show that the building in question is being used by the tenant for residential as well as for non-residential purposes and the landlord now intends to occupy the said building for the very same purpose. It has also come on record that the landlord is having a house in Akkayapalem which is about 6 K.M. away from the petition schedule premises. Whereas he is doing business in Ayurvedic Medicines in the ground floor, the tenant is in occupation of the first floor of the building. The landlord used to come all the way from Akkayapalem to the petition-schedule premises for doing business every day. Further, he used to receive stocks of Ayurvedic Medicine through lorries from various cities like Bombay, Madras, Calcutta, Hyderabad etc. If the lorries arrive at the shop during day time, there would not be any problem for him to take delivery of the stocks, but if they arrive during nights, he has to come all the way from Akkayapalem during that odd hour to take delivery of the stocks at the shop. Some times, having unable to come to the petition schedule shop during odd hours, the landlord had... to pay demurrhage charges to the transporters for retaining the lorries with stocks during nights; Some times, the lorries which arrived during nights used to ''go back as there were none in the shop to receive the stocks. Therefore, it was very much inconvenient for the landlord to do business in the ground floor of the petition schedule building while residing in Akkayapalem. Apart from the above circumstances, there is one more circumstance which prompted the landlord to shift his residence from Akkayapalem to the petition-schedule premises. The landlord is having two school going children and the locality where the petition-schedule premises is situated is having good convents and schools and if the landlord could shift his residence from Akkayapalem to the petition schedule premises, he may be able to give good education also to his children. All these circumstances clinchingly establish that the landlord is in pressing and bona fide need of the accommodation in petition-schedule premises instead of Akkayapalem house. Therefore, it must be held that he is entitled for eviction of the tenant, from the petition-schedule premises under the provisions of Section 10 (3) (a) (i) (b) of the Act. When once it is proved that the landlord is entitled for eviction u/s 10 (3) (a) (i) (b) of the Act, as rightly contended by the learned Counsel for the landlord, the landlord need not prove his other requirement for non-residential purposes under the said provision. For all these reasons it must be held that the landlord is entitled for eviction of the tenant u/s 10 (3) (a) (i) (b) of the Act.

It is lastly contended by the learned Counsel for the petitioner-tenant that the Courts below have failed to record a finding on the issue of the hardship which the tenant might suffer in case of eviction and the matter, therefore, needs to be remitted back to the Court below for fresh consideration on the point. But, I am of the view that this contention is also not sustainable. The question of determination of comparative hardship will arise only in case that falls u/s 10 (3) (c) of the Act. In this case, since it is held that the requirement of the landlord is the one u/s 10 (3) (a) (i) (b) of the Act, the question of deciding the comparative hardship of the tenant will not arise. For all these reasons, I hold that this C.R.P. also lacks no merits.

In the result, both the C.R.Ps. are dismissed. The tenant is granted six months'' time for vacating the premises, subject to payment of usual rentals.