Smt. Bhagi Bai vs Swastik Roller Flour Mills and Others

V. Bhaskara Rao, J.—These three revision petitions arise out of a common judgment and decree in R.A. Nos.303, 304 and 305 of 1992 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad, dated 31-8-1994. The land lady filed three eviction petitions against three different tenants in respect of three non-residential premises, namely, R.C. Nos. 1342 of 1986, 1343 of 1986 and 1344 of 1986 (dated 26-6-1992), on various grounds, including (1) wilful default in payment of rent for a certain period and (2) bona fide requirement of the premises for personal occupation before IV Additional Rent Controller, Hyderabad. Both the grounds are held to have been established by the land lady and, accordingly, the eviction petitions have been allowed in all three cases. The tenants filed R.A. Nos.303,304 and 305 of 1992 respectively, against the said orders. The learned Additional Chief Judge, City Small Causes Court, Hyderabad reversed the above findings on both the grounds and allowed the appeals. Consequently, the eviction petitions stood dismissed. Thereupon, the land lady filed these three revision petitions.

The relevant facts giving rise to these revision petitions in brief are as under-

Late Thularam, the original landlord was the husband of the revision petitioner herein. He died on 15-2-1984. The demised mulgies were let out to the respondents herein on monthly rent, sometime in the year 1974. During his life time, late Thularam filed O.S. Nos. 1003 of 1981, 1004 of 1981 and 1006 of 1981 on the file of III Additional Judge, City Civil Court, Hyderabad, seeking eviction of the respondents-tenants from the respective mulgies by terminating their tenancy and sought for compensation for use and occupation of the mulgies from 1981 till the date of eviction. During the pendency of these suits, the Supreme Court of India struck down Section 32(b) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ''the Rent Control Act'') and consequently, the Civil Court has lost its jurisdiction to try the above suits. Soon after the death of late Thularam, the revision petitioner filed the aforesaid eviction petitions on 25-6-1984. Each one of the respondents filed separate counter, denying all the averments of the revision petitioner. They also specifically pleaded that prior to the filing of the suits and during the pendency of the suits, they offered to pay the rents to the landlord late Thularam or his sons, who were looking after his affairs, and they also requested them many a time to accept the rents tendered by them, but he refused to receive the rents and at one stage the landlord asked the tenants to send the rents to his Advocate, Sri Laxminarayana Somani. It is also their case that they sent the rents through cheques to Sri Laxminarayana Somani, but he returned them with a covering letter stating that his client Thularam refused to accept the rents on the ground that the relationship of landlord and tenant no longer existed between them and that the respondents are the trespassers in the suit premises. It is also their case, that they requested one of the sons of late Thularam to accept the rents but he too refused the same and, thereafter, they once again sent the rents through bank drafts to Sri Laxminarayana Somani, Advocate, requesting him to acknowledge the receipt of the rents and pass on the same to the legal heirs of late Thularam but the registered cover was returned. Thus, they contended that they are not wilful defaulters. As regards the other ground, namely, bona fide requirement for personal occupation, the respondents specifically pleaded that the revision petitioner is already in occupation and possession of two non-residential rooms adjacent to the suit mulgies and hence she is precluded from seeking eviction of the respondents. Both sides adduced oral and documentary evidence. One Amarlal, General Power of Attorney of the petitioner is examined as P.W.1 and one of the sons of the petitioner by name Vinod Kumar is examined as P.W.2. The respondents also examined one witness and got marked Exs. R-1 to R-94 in R.C.No. 1342 of l986; Exs.R-1 to R-106 in R.C.No. 1343 of 1986 and Exs.R-1 to R-81 in R.C. No. 1344 of 1986. On a consideration of the above evidence, the learned IV Additional Rent Controller, Hyderabad held that the land lady has succeeded in establishing two grounds, namely, that the respondents committed wilful default in payment of rent and that the demised shops are required for bona fide personal occupation of the land lady whereas, the learned Appellate Judge reversed the above findings and held that the land lady-revision petitioner herein failed to establish both the grounds and, accordingly, the eviction petitions have been dismissed.

Sri R. Subhash Reddy, learned Counsel for the revision petitioner, strenuously contended by taking this Court through the evidence on record that the findings of the Appellate Court are erroneous, inasmuch as the rents were offered to the Advocate and not to the original landlord or after his death to the land lady and that constitutes wilful default in payment of rent. It is further contended that out of two rooms, pointed out by the respondents, one of the sons of the revision petitioner is running his business in one room and the other one is not at all sufficient to enable the revision petitioner to take up her own business. He, therefore, urged that the finding that there are some other non-residential premises available for the revision petitioner and, therefore, she is not entitled to seek eviction of the respondents is not sustainable.

On the other hand Sri K. Rama Rao, learned counsel for the respondents contended that the respondents/tenants have offered rents to the original landlord Late Thularam during his lifetime and to the revision petitioner as well as her counsel, Sri Laxminarayana Somani, on several occasions, but they declined to accept the same and there is abundant documentary evidence to that effect and, therefore, the learned Appellate Judge rightly held that mere was no wilful default on the part of the respondents/tenants. It is further contended that the fact that two other non-residential premises are in occupation of the land lady is not in dispute and that the contention which is now sought to be raised that one of the rooms is very small and it is not sufficient for the proposed business of the revision petitioner cannot be considered at this stage for the simple reason that such a case was not set up by the revision petitioner in her eviction petitions. He relied on a decision in D. Dvaji v. K. Sudarshana Rao 1994 (1) APLJ 5 wherein it is observed "suitability or convenience does not appear to have, from the language found therein (reference to Section 10(3)(a)(iii) of the Rent Control Act) been envisaged by the legislature". It is further argued that the impugned judgment is also sustainable in view of the authoritative pronouncement of the Full Bench in Vidya Bai and Another Vs. Shankerlal and Another, .

Having regard to the findings of the lower Appellate Court, grounds of revision and the contentions raised by both sides, the following points arise for consideration:-

(1) Whether the respondents /tenants committed wilful default in payment of rents?

(2) Whether the land lady is precluded from seeking eviction u/s 10(3)(a)(iii) of the Rent Control Act?

Point No. 1:-

I carefully perused the orders of the learned IV Additional Rent Controller, Hyderabad on one hand and the judgment of the learned Additional Chief Judge, City Small Causes Court, Hyderabad on the other. The learned Appellate Judge considered this aspect elaborately in para 9 of his judgment. Ex.R-90, dated 13-4-1982 and Ex.R-91, dated 17-6-1984 are two documents which clinchingly show that the respondents/tenants offered rents during the pendency of the suits filed by late Thularam and thereafter prior to the filing of the eviction petitions. There is also oral evidence to the effect that they offered to pay the rents and the landlord or his counsel and also the revision petitioner herein refused to accept the same. The ratio in J. Sathyanarayana v. M. Narsimhulu 1985 (2) ALT 169 : 1985 (3) APLJ 276 has been followed by the learned Appellate Judge and rightly held that the respondents/tenants have not committed wilful default in payment of rents. On a careful consideration of the material on record on this point, 1 find that there is no case warranting interference u/s 22 of the Rent Control Act by the High Court. The finding of the Appellate Court is well founded and the same is confirmed.

Point No. 2:-

It is not in dispute that there were two non-residential rooms which are already in occupation of the revision petitioner. It is on record that one of the sons of the revision petitioner is running his business in one of the rooms and the other one appears to be vacant. It is now contended by the learned counsel for the revision petitioner that the other room is too small and it is not at all sufficient for starting any business therein. It is noteworthy that the eviction petitions do not contain any plea to that effect. It is, therefore, argued by the learned Counsel for the respondents/tenants that in the absence of a specific plea to that effect, the revision petitioner cannot be permitted to set-up this ground for the first time at this stage. The law on this subject is also well settled by the Supreme Court in D. Dvaji v. K. Sudarshana Rao (referred to above) (1 supra).

In D. Dvaji v. K. Sudharshana Rao (1 supra), it is held,

"The object of the Act is to enable the landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or he bona fide proposes to commence. The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants there from.

In Vidya Bai v. Shankerlal (2 supra), a Full Bench considered this question afresh and held that u/s 10(3)(a)(iii) a landlord inoccupation of a non-residential building is not entitled for carrying on his business to get back possession of another non-residential building in the occupation of a tenant. The bar u/s 10 against securing eviction of the tenant of such non-residential building is absolute. The suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord are not relevant."

It is very clear from the above judgment that the suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord are not relevant. I, therefore, do not find any merit in the contention of the learned counsel for the revision petitioner in this regard. The finding of the lower Appellate Court on this point is also well founded and the same is fit to be confirmed.

For all the reasons given above, all the revision petitions are fit to be dismissed and they are, accordingly, dismissed with costs and the findings of the lower Appellate Court are confirmed.