Vatcha Chandra Kumari vs Atava Narasimha Rao

S. Dasaradharama Reddy, J.—The petitioner who is landlady and native of Chagallu filed eviction petition on 6-9-1978 seeking eviction of the respondent-tenant from the Mulgi in Rajahmundry on the grounds of wilful default and bona fide requirement. The learned Rent Controller held that there was no default in payment of rents but allowed the eviction petition upholding the landlady''s contention about the bona fide requirement. During hearing of the appeal preferred by the tenant, learned counsel for the landlady was not present and the appeal was allowed ex parte. Though the question of wilful default was not subject matter of appeal, the learned Subordinate Judge, gave finding in favour of the tenant on this issue also. Aggrieved by this, the landlady filed revision in this Court which was allowed on 8-8-1986 by this Court and the plea of the petitioner for personal occupation was upheld. The landlady did not canvass the finding of the two Courts below regarding wilful default. On appeal by the tenant, the Supreme Court remanded the matter with the following observation:

"After hearing both the learned counsel for the parties, we find that the Judgment of the High Court has not considered certain vital factors which may have a bearing on the question of bona fides. Therefore, we are left with no option than to set aside the impugned order and remit the same to the High Court for fresh consideration.

Pursuant to the remand, the matter has come up for hearing. Mr. M.S.K. Sastry learned Counsel for the petitioner submitted that the vital factors referred to by the Supreme Court may be:

(1) Non-mention of business carried on by the husband of the petitioner at Chagallu;

(2) Issuing of legal notice earlier by the father of the petitioner to the tenant that he wants the premises for Kirana business.

In the eviction petition, it is stated that the petitioner and her husband who are residing at Chagallu have no convenient occupation at Chagallu and are put to serious hardship in the matter of making their living and hence with a view to make a living by starting business in Aluminiumware they want to shift to Rajahmundry where the parents of the petitioner are residing. In the counter, it is stated by the tenant that the father of the petitioner, who earlier let out the premises to him, asked him in 1971 to attorn to the petitioner to whom he has given the property as Pasupukumkuma. He got issued lawyer''s notice Ex.B-1, in April, 1977 demanding the respondent to vacate the premises on the ground that he requires the premises for the occupation of his elder son who wants to carry on Kirana business. To that, the tenant gave reply denying his title and alleging that the claim of personal occupation is not bona fide but is made only with oblique motive of obtaining enhancement of rent. It is also stated in the counter that the petitioner''s husband is having properties and is carrying on business in West Godavari District, that he has no intention to start business or shift residence to Rajahmundry and that this petition is filed only as the earlier attempt of the petitioner''s father for eviction has failed, Lastly, it is stated that as he has been running hair cutting saloon at the premises for the past so many years, he would be put to hardship if he has to vacate the premises.

The petitioner examined herself as P.W.1. It is stated that her husband who had separated from his father in 1976 wants to shift from Chagallu to Rajahmundry where her father and sisters are residing and where they want to start business in aluminium and steel goods. It is stated in the cross-examination that her husband is carrying on business in aluminium and steel from 1976 at Chagallu earning Rs. 500/- p.m. P.W.2 who is the father-in-law of the petitioner deposed that the petitioner''s husband, who is his elder son, is doing business in aluminium and steelware on small scale at Chagallu since 7 or 8 years and since the profits are very meagre, Chagallu being sma11 village, he wants to do business at Rajahmundry. He denied that Ayyanna, father of the petitioner is behind the litigation. The husband of the petitioner, deposing as P.W.3, stated that he is doing aluminium business in Chagallu and as it is a small village, he wants to shift to Rajahmundry to do business there. The premises has been conveyed to his wife-petitioner, by her father under Ex.A-3-Regd. Settlement Deed dated 15-11-1977. Though in the legal notice Ex. A-1 it is mentioned that he was doing business at Chagallu, he cannot say why that fact was not mentioned in the eviction petition.

The respondent stated in his evidence that the petitioner''s husband and his father are not divided, that neither in the eviction petition nor in Ex.A-1 notice it is mentioned that the husband of the petitioner is doing aluminium business at Chagallu, that the allegation that the petitioner''s husband wants to shift to Rajahmundry to do business is false, and that the eviction petition is filed in order to extract higher rent and at the instance of the petitioner''s father.

From the above evidence, the learned Rent Controller held that the petitioner''s requirement of the premises for carrying on business by her husband at Rajahmundry in aluminium ware is bonafide. The learned appellate authority held hat the allegation in the eviction petition that the petitioner and her husband are put to serious hardship in the matter of making their living for want of suitable occupation is belied by the evidence which shows that they have been doing business in aluminium in Chagallu learning Rs. 500/- per month. The learned Subordinate Judge went on to say that the petitioner has not produced account books to show what their income was. He further commented that if the aluminium business which they were carrying on at Chagallu was really unsuitable for making a living, it is unbelievable that they would propose to start the same business at Rajahmundry. Finally, the learned Subordinate Judge concluded that the petitioner and her father are hand-in glove and wanted to invent some ground or other to obtain eviction of the tenant which is clear from the fact, according to him, that in the earlier notice Ex.B-1, the ground for eviction was that the petitioner''s father requires it for his son''s Kirana business and after the tenant denied his title and replied that petitioner was the owner, he got the petition filed on the ground that his daughter and his son-in-law require the premises for their business in Aluminiumware. It was also held that there is no evidence that the parents of the petitioner are prepared to assist the petitioner in the business at Rajahmundry.

Mr. M.S.K. Sastry, learned senior Counsel for the petitioner contended that non-mention of business carried on by the husband of the petitioner at Chagallu, in the eviction petition, is not at all relevant. The main ground stated in the eiviction petition was that the petitioner and her husband want to shift to Rajahmundry from Chagallu to do business in aluminiumware with the help of petitioner''s father. The reasons for shifting and other details as to what the petitioner and her husband are doing at present and their income need not be stated in the petition. He further submits that Section 10(3)(1)(a) (sic. 10(3)(a)(iii)(b)) of the A.P. Buildings (Lease, Rent & Eviction) Control Act requires satisfaction of Rent Controller about the requirement of the premises by the landlord for starting business and that in spite of the fact that no particulars were given in the petition, when there is sufficient material to show that the requirement of the premises to start business is bona fide, relief of eviction cannot be denied and that the question of bona fide requirement has to be decided on consideration of the entire material on record. I agree with the contention of Mr. Sastry. In Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, the Supreme Court had occasion to consider this point in a case arising under the Bihar Rent Control Act. Reversing the decision of the Patna High Court, dismissing the eviction petition on the ground that there were no specific pleadings on record regarding the bona fide requirement of the landlord, the Supreme Court held that it was not necessary for the landlord to indicate the precise nature of the business which he intends to start in the premises and even if the nature of business was indicated, nobody can bind the landlord to start the same business in the premises after it was vacated. This decision clearly supports the counsel for the petitioner. When it is the law that the particulars of business itself need not be indicated in the eviction petition, it follows that the reasons for starting the business need not be stated in the petition.

The reasoning of the appellate Court that as it is admitted that the petitioner and her husband are doing business in aluminium at Chagallu, there is no reason why they should shift the business to Rajahmundry is not comprehensible. Doing business in a bigger town like Rajahmundry is certainly more advantageous than doing business in smaller place like Chagallu. Even otherwise, it is for the landlord to choose where he wants to do business to augment his income and it is not for the tenant to advise. Mr. Sastry is also right in his submission that even assuming that there is no evidence to show that petitioner''s father is prepared to assist the petitioner and her husband in the business at Rajahmundry, it docs not follow that the petitioner and her husband cannot carry on business there.

The next submission of Mr. M.S.K. Sastry is that the reasoning of the appellate Court that the eviction petition is filed to extract higher rent in the light of the notice issued earlier by the petitioner''s father on the ground that he wants the premises for his son''s requirement to start Kirana business, is untenable. He submits that the earlier notice was issued when the petitioner''s father was owner and the purpose of eviction need not be the same if the property has been transferred. Mr. M.S.R. Subrahmanyam, learned counsel for the respondent contends that the entire facts if closely scanned show that the petitioner''s father is behind the litigation. He submits that Ex.B-1 notice was issued in April, 1977 by the father of the petitioner on the ground that he requires the premises for his son''s Kirana business and realising that he cannot get eviction in view of decision in D. Dvaji v. K. Sudarshana Rao 1994 (1) APLJ 5, he has settled the property in favour of his daughter to circumvent the bar. I cannot agree with Mr. Subrahmanaym''s contention. It is well settled that it is always open to the citizens to arrange their affairs in such a way as to take advantage of the provisions of any law, without contravening any other law. Merely because the father could not have obtained eviction, as he has already got non-residential premises in Rajahmundry, the present eviction petition cannot be thrown out as long as the settlement deed stands good. It is not the case of the respondent that the settlement deed is sham or bogus.

Lastly, Mr. M.S.R. Subrahmanyam contended that the finding of fact arrived at by the learned Subordinate Judge regarding the bonafide requirement cannot be disturbed by this Court sitting in revision. He relied on Mattulal Vs. Radhe Lal, ; Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, , Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, . This contention has to be rejected for two reasons. Firstly, as already seen, the matter has gone up earlier to the Supreme Court which having found that certain vital points have not been discussed in the judgment, remanded the matter. If it is pure finding of fact, the Supreme Court itself would have allowed the appeal on the ground that this Court cannot interfere with the finding of the fact arrived at by the appellate Court.

The second reason is it is not as if no finding of fact arrived at by the appellate Court can be interfered with by this Court. If the approach of the appellate Court is wrong and contrary to the known principles of law or if the conclusion is not borne out from the facts on record or if the finding is vitiated by error of law, this Court is entitled to interfere. In the present case, the learned Subordinate Judge has proceeded on assumption that the non-mentioning in the eviction petition of the fact that the petitioner''s husband is doing business at Chagallu is fatal to the eviction petition. This has already been demonstrated as untenable in view of the decisions of this Court and Supreme Court. The other reasoning that as the petitioner and her husband are doing business admittedly at Chagallu, there is no reason why they should do business at Rajahmundry is also untenable, since doing business in a larger town like Rajahmundry yields more income normally. Apart from this, the petitioner was set ex parte in the appeal. Though the learned Subordinate Judge has discussed the appeal on merits, still the fact remains that the landlady''s case could not be properly focussed before the appellate Court and consequently not correctly appreciated.

In view of the above discussion, C.R.P. is allowed, No costs. FOUR MONTHS time from to-day is granted to the respondent to vacate the premises subject to the condition of his paying rents in time.