M. Hari Shankara Narayana vs Addanki Srivaramakrishnaiah

The judgment in C.M.A.No.15 of 1992 on the file of Principal Subordinate Judge, Kumool, dated 18-3-1993 dismissing the appeal of the landlord and confirming the order of dismissal of eviction petition filed by the said landlord in R.C.C.No.4/91 on the file of the Rent Controller, Kumool, is assailed in this revision petition by the landlord. The parties will be referred to as "landlord and tenant" for the sake of convenience.

The landlord filed the eviction petition R.C.C.No.4of 1991 u/s 10(3)(iii)(b) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short'' ''the Act'''') seeking eviction of the tenant from the demised premises which is a non-residential shop bearing D.No.67/22 C, Port, Kurnool on the ground of bona fide personal requirement for the purpose of starting textile show-room. The tenant is in occupation of the premises since 18-11-1972 on monthly rent and it is extended from time to time. The rent on the date of petition is Rs.825/- per month. The tenant is also in occupation of another shop in the same row on the eastern side paying a rent ofRs.600/- per month and an engineering shop is being run by him and his wife in that premises. The landlord is the only son of M. Padmanabhaiah, who died when he was very young and he belongs to affluent family. The landlord has been working in Andhra Bank, Main Branch, Kurnool, for the last eight years and he has none to help him in the management of his immovable properties as his mother is old. Hence, he managed to be in Kumool for the last eight years. But, his transfer is over due. It is his case that if he is transferred to a place other than Kurnool, he is not willing to leave Kumool for the sake of his properties and he has decided to resign his job and open a textile show-room in the demised premises. When the tenant was told about the said intention, he agreed to vacate the premises by expiry of last extended period i.e., 31-12-1990. It is asserted that the demised premises is more convenient for the proposed business of the landlord, that his maternal uncle and his son are doing same business at Nandyal and they are willing to help him in his business venture. Moreover, his wife is a commerce graduate and she is capable of taking care of the business. In these circumstances, he requested the tenant to vacate the premises, but he refused to oblige. Hence, he filed the eviction petition before the Rent Controller.

The tenant resisted the petition by filing a counter affidavit. He admitted theownership of the landlord. It is averred that he has established his business in agricultural pump sets and ancillary products about 15 to 20 years back, that it was the practice''''of the petitioner to enter into an agreement in writing and on the expiry of the stipulated period to renew the agreement on enhancement of rent, that he demanded for enhancement of rent by 50% on the expiry of the period on 31-12-1990 and that he expressed his inability to enhance the rent by 50%. It is his case that the eviction proceedings were commenced by the landlord in those circumstances. It is then asserted by the tenant that his wife is in occupation of the Shop bearing D.No.67/22-C and she is carrying on her own business independently. Adverting to the requirement of the landlord, it is stated that Medam family has not been in business line from the beginning and they have been doing agriculture and the landlord has been in service since a long time and he worked at different places viz., Kumool, Adoni, Nandi kotkur etc., It is specifically stated that he has been going and working at any place wherever posted and he has no experience in textile business, but his uncle at Nandyal instigated him to file eviction petition. It is lastly stated that the landlord wants to be in service and he has managed to be at Kumool and is capable of managing to remain at Kumool. It is also averred that the landlord has another shop bearing No.67-22-A, which is vacant and if he proposes to start business, he can do so in that shop. Thus, it is stated that there are no bona fides in this petition.

The parties went to trial with the above pleadings. The landlord had examined himself as PW1 and two other witnesses on his behalf and got Exs.A1 to A5 marked, while the tenant examined himself as RW1 and no documents were marked on his behalf. On a consideration of the above oral and documentary evidence, the learned Rent Controller held that the personal requirement of the petitioner is not bona fide and accordingly he dismissed the eviction petition. The landlord carried the matter in appeal to the appellateauthority i.e, Principal Subordinate Judge, Kumool. But the appeal met with same fate in that Court also. Hence, the Revision Petition.

Sri T. Veerabhadraiah, learned senior Counsel strenuously contended that no other premises was in his possession on the date of filing of the eviction petition and that the one which fell vacant during the pendency of the petition was offered to the tenant in lieu of the demised shop, but, he did not accept the offer. It is further contended that the landlord belongs to Vysya community and he is intending to start textile business by resigning his job in the Andhra Bank as there is a threat of transfer and he being the only son cannot risk the management of the vast immovable properties into third party''s hands. He further contended that the shop which fell vacant is too small and not at all suitable for his textile business. He therefore sought for allowing the eviction petition by setting aside the impugned judgment.

On the other hand, Smt. P. Vijaya Lakshmi, learned Counsel for the tenant contended that both the Courts below have concurrently held that there are no bona fides in the so called personal requirement of the landlord and that there is no infirmity in the above finding and hence, the revision petition is liable to be dismissed. She relied on a Full Bench decision in Vidya Bai and Another Vs. Shankerlal and Another, and contended that availability of another non-residential shop is enough and even otherwise the petitioner has not resigned the job and hence there is no certainty that he would commence business. She also contended that since his wife is a Commerce Graduate, she herself will take care of his immovable properties even if he is transferred to some other place.

I carefully considered all the above contentions of both the learned Counsel and perused the judgments of the Rent Controller as well as the appellate authority. The ground of bona fide requirement of the landlord didnot find favour by both the Courts below and hence, the landlord is in this Court for reviewing of the above finding. In my view first hurdle for the landlord appears to be the'' availability of another shop. It is no doubt true that the other shop appears to be small and it is for this reason that the tenant did not agree to shift his business to the other shop which is offered by the landlord, In a situation like this where the tenant is clothed with certain rights under the Act, he should have freedom of election and in his own right the tenant elected to decline the offer. I do not think that he was unreasonable in doing so because the other shop does not appear to be suitable for his business which was set up about 20 year ago. Thus, the availability of other shop was rightly weighed against the landlord as held by a Full Bench of this Court in the judgment cited (supra).

I have also bestowed my earnest attention to the main ground of personal requirement. It is on record that the landlord worked at various places apart from Kurnool. It may be that he worked at Kumool for a longer period and he himself averred in the petition that he managed his retention at Knrnool. It is noteworthy that he has not tendered his resignation, but he says that he would resign if he is transferred to some other place which appears to be a mere chance. He himself admitted that his wife is a Commerce Graduate and is capable of managing the business, which he intends to set up. If that is so, she can as well manage the vast immovable properties of the landlord even if he is transferred to some other place. For these reasons, I am unable to interfere with the concurrent findings of two Courts below and I do not find any merit in this Revision Petition.

In the result, the C.R.P is dismissed, but without costs.