Vijayalaxmi Printing Press vs Nandula Shankar and Others

S.V. Maruthi, J.—This Civil Revision Petition arises out of the judgment of the learned Subordinate Judge, Nizamabad, dismissing C.M.A. No. 2 of 1989, filed against the judgment of the Principal District Munif and Rent Controller, Nizamabad, allowing R.C. No. 10 of 1980 filed by the respondents-landlords for eviction of the petitioner from the petition schedule premises.

The tenant is the petitioner herein. The respondents who are the landlords filed a petition for eviction of the petitioner-tenant from the petition schedule premises. The petition schedule premises consisting of one mulgie and two rooms were purchased by the respondents. The respondents were put in possession of the two rooms. Since the petitioner was occupying the mulgie as a tenant, the mulgie was symbolically delivered to the respondents. The respondents were carrying on business in wholesale cloth in a partnership firm in a rented building and the first respondent wanted to start his own separate business in textile and as such the petition schedule premises is required for his bona fide personal use as he has no other mulgie in the town. Hence the petition for eviction of the petitioner-tenant from the schedule premises.

The case of the petitioner is that originally, the mulgie was taken on rent by his father and after the death of his father, he continued to be in occupation of the said mulgie and he is carrying on printing press in the said mulgie.

On a consideration of the material on record, the learned Rent Controller allowed the petition for eviction, aggrieved by which, the petitioner filed appeal before the learned Subordinate Judge, which was dismissed. Hence the revision before me.

Sri P.S. Murthy, learned Counsel appearing for the petitioner-tenant raised the following contentions: The original tenant after his death left behind him his son and other members of the family. Therefore, the eviction petition should have been filed by impleading all the Legal Representatives of the original tenant of the family, as u/s 2 (ix) of the A.P. Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as ''The Act''), where a tenant dies his legal representatives are entitled to claim tenancy rights by operation of Law in respect of the premises for which the deceased was the tenant and that each one of the legal heirs has an independent right to claim as a tenant as the Statute has recognised each one of the heirs of the family as a tenant and relies on the decision of this Court in Jeeth Kaur and Others Vs. P. Kondalamma and Another, . Therefore, Sri Murthy submits that the petition filed against one of the members of the family is not maintainable and the petition is liable to be dismissed.

His next contention is that admittedly the building which was purchased by the landlord consists of two rooms and one mulgie. One mulgie is in the occupation of the petitioner, whereas the other two rooms are in the possession of the respondents. In view of the judgment of the Supreme Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, and also in view of the Full Bench decision of this Court in Vidya Bai and Another Vs. Shankerlal and Another, , petition for eviction of a portion of the building is not maintainable.

P.W.1 in his evidence stated that he wanted to demolish the entire building and construct a new building. However, P.W.1 filed the eviction petition u/s 10 (3) (a) (iii) of the Act on the ground that he requires the premises for his bona fide personal requirement; while his case is that he wants to demolish the building. If a landlord wants the premises for demolishing the building, then the provision under which the landlord can seek eviction of the tenant is u/s 12 of the Act. Therefore, respondents ought to have filed the petition u/s 12 of the Act for eviction and consequently the petition filed u/s 10 (3) (a) (iii) is not maintainable.

Sri Ravikiran Rao, learned Counsel appearing for the respondents submitted that the suit notice was issued to the petitioner-tenant as a ''kartha'' of the joint family and he represents the entire family of the original tenant. Since the petitioner is the kartha of the joint family, petition filed against him is maintainable. In support of his contention, he relied upon the judgment of the Supreme Court in Miss Renu Sharma v. Mrs. Raghbir Kaur Bhatia 1991 (2) R C R 313 where the original tenant died and the Supreme Court held that "......rent was paid to landlord by mother and brothers and the young girls in the family were being looked after by elders, the daughters must be held to be effectively represented by the named judgment-debtors."

As regards the second contention, Counsel submits that admittedly the respondents were carrying on their business in a rented shop and the present building was purchased for the purpose of establishing new business. Respondents 1 and 2 have grown up and accordingly mere was a family settlement to the effect that respondent No. 1 shall establsish independent business in the mulgie. Therefore, respondent No. 1 bona fide requires the mulgie for establishing the new business.

As regards the maintainability of the petition, he submits that the petition for eviction was filed specifically u/s 10 (3) (a) (iii) for bona fide personal requirement of the respondents and the petition is not filed for the purpose of demolition and reconstruction. He contends that the respondents should not be thrown out of the Court on the basis of a stray statement in the evidence in the absence of a specific plea in the petition for eviction.

The learned Subordinate Judge found that notice was issued to the petitioner-tenant as a ''kartha'' of the joint family prior to the filing of the petition and the petitioner admitted that he is the eldest son and managing the printing press on behalf of the joint family. In view of the above, the learned Judge held that the eviction petition in the name of of the "kartha'' of the joint family is maintainable and it is not necessary to implead all the other members in the eviction petition. I agree with the view taken by the learned Subordinate Judge. It is true that in Jeeth Kaur v. P. Kondalamma (1 supra), it was held that u/s 2 (ix) of the Act, each one of the legal heirs has an independent right to claim as a tenant as each one of the persons is a tenant. However, this is a case where the legal representatives of the deceased-tenant were claiming tenancy rights. Admittedly, in the present case, the suit notice was issued to the petitioner as ''kartha'' of the joint family and he also stated that he is, looking after the family business, namely, printing press. Since he is looking after the family business, in view of the judgment of the Supreme Court in Renuka Sharma''s case (4 supra), the eviction petition is maintainable in the absence of the other legal heirs. We may refer to the observations made by the learned Judges which are relevant to the facts of the present case.

"....A karta of a joint Hindu Family has always been recognised as a representative of the other members of the Joint Hindu family and so has been a trustee..........."

In view of the observations of the Supreme Court, I agree with the learned Subordinate Judge that in the absence of the other members of the joint family, the eviction petition is maintainable against the kartha representing the family.

The next contention of Sri Murthy is that the respondents are in occupation of a portion of the non-residential building and therefore he is not entitled to seek eviction in respect of the other portion of the non-residential building as u/s 2 (iii) of the Act, building includes a part of the building. He submitted that the landlord is in the occupation of the other two rooms of the non-residential building and as such he is not entitled to seek eviction of the tenant who is in occupation of the other portion of the building.

The decision of the Supreme Court in (2 supra) relied upon by the Counsel for petitioner, in this connection, is distinguishable on facts. We may briefly refer to the facts of this case. The landlord leased out several protions of his building to several tenants. The landlord decided to start business in automobile spares and claimed eviction of the respondent therein by rent control proceedings u/s 10 (3)(a) (iii) (a) and (b) of the A.P. Buildings (Lease, Rent and eviction) Control Act. The Rent Controller dismissed the petition. The appeal filed by the landlord was also dismissed. In revision, the High Court remanded the matter to the appellate authority. The appellate authority in turn remitted the matter to the trial Court for fresh disposal in accordance with the directions and after allowing parties to lead evidence, against which, the landlord filed a revision in the High Court. During the pendency of the revision before the high Court, the landlord came into possession of one of the shops. Therefore, the High Court dismissed the revision petition on the ground that the petition is no longer maintainable u/s 10 (3) (a)(iii) of the Act. The matter went upto the Supreme Court. The Supreme Court held that "The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict in view of the inhibition written into Section 10 (3) (a) (iii) itself. We are not disposed to disturb this approach in law or finding of fact."

The decision of the Supreme Court referred to above is distinguishable on facts. In the above case, during the pendency of the eviction proceedings, the landlord came into possession of one of the shops of the non-residential building. Therefore, it was held that the eviction proceedings u/s 10 (3) (a) (iii) of the Act are not valid. Whereas on the facts of this case, the landlord has no other alternative non-residential accommodation. The two rooms in his occupation are not suitable as they have no opening to the main road and thus not fit for carrying on business. Further, it was not the case of the petitioner that the two rooms in the occupation of the landlord are suitable and sufficient for carrying on business by the landlord. In the absence of such a plea before the lower authorities, the tenant cannot be permitted to raise the above at the stage of revision before this Court. On the facts of the present case, the decision (2 supra) has no application.

The next decision relied upon by Sri Murthy is the Full Bench decision of this Court in Vidya Bai and Another Vs. Shankerlal and Another, . It is necessary to refer to the facts of the said case, as Sri Murthy has vehemently contended that this decision is on all fours on the facts of the present case. One Shankerlal was in occupation of a non-residential building No. 4-5-880, Sultan Bazar. He filed R.C. 211/76 to evict the tenant from another non-residential building No. 4-5-879 owned by him in the occupation of the tenant situated in the same building u/s 10 (3) (a) (iii) (b) of the Act on the ground that it was bona fide required by him for his personal business as his major son wanted to commence a new business in the said premises. The tenant resisted the claim for eviction contending, inter alia, that the landlord who was in occupation of the non-residential building No. 4-5-880 was not entitled to recover possession of the non-residential building No. 4-5-879 in his occupation in the same building. The Rent Controller dismissed the petition for eviction, whereas the appellate Court allowed the same. On revision to the High Court, the High Court held that "a landlord in occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another non-residential building in the occupation of a tenant; the bar under the section against securing eviction of the tenant of such non-residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord or to meet the bona fide need of any other member of the family of the landlord, independent of and over and above the need of the landlord are all in our view irrelevant considerations in the context of construing the provisions in Section 10 (3) (a) (iii) of the Act, which, in clear terms, interdicts the landlord, in absolute terms, from seeking recovery of the non-residential building belonging to him in the occupation of the tenant".

Sri Murthy drew support from the observations of the learned Judges that suitability, convenience and sufficiency of the non-residential building are not relevant considerations for eviction of the tenant. According to him, the respondents are in occupation of a portion of the non-residential building and they are seeking eviction of the petitioner from the other portion on the ground that the portion which is in their occupation is behind the shop and it has no entrance to the main road except to the side lane and as such it cannot be used for non-residential accommodation for opening a cloth shop. In other words, according to Sri Murthy, the portion which is in the occupation of the respondents is not suitable for opening a cloth shop. Therefore, he vehemently contends that in view of the Full Bench decision of this Court, suitability of the respondents is not a relevant consideration for evicting the petitioner-tenant who is in occupation of a portion of the non-residential building.

I have earlier extracted the facts of the case in the Full Bench decision. That is a case where the landlord is already in occupation of a non-residential building where he was carrying on business. He wanted the other mulgie in order to enable his son to open a new shop, and in that context, having regard to the language used in Section 10 (3) (a) (iii), the learned Judges held that, suitability, convenience and sufficiency are not relevant factors in directing the eviction of a tenant from the non-residential building. The facts in the instant case are that the landlords are carrying on business in a rented shop. They have purchased the petition schedule premises for the purpose of starting a new business. The respondents does not own any other non-residential building in the town and the portion which is in their occupation is not suitable for carrying on business i.e. for establishing a cloth shop as it opens into a lane and has no entrance to the main road. The expression ''suitability'' is to be construed having regard to the facts and circumstances of each case. As on the facts of this case, though the landlords are in the occupation of a portion of a non-residential building, that portion of the non-residential building has no access to the main road. In other words, the portion which is in their occupation is not fit for opening a cloth shop. As already stated earlier, the respondents are running business in a rented shop and they have no other non-residential building. Therefore, the decision in the Full Bunch case is not relevant to the facts of this case. In the light of the view I am expressing, it is not necessary for me to refer to the other decisions relied upon by Sri Murthy.

As regards the contention of Sri Murty that in view of the statement made by P.W.1 in his evidence that he wanted to demolish the schedule premises and construct a new building, the eviction petition u/s 10 (3) (a) (iii) of the Act is not maintainable, cannot be accepted. A petition for eviction cannot be dismissed solely on the basis of a stray statement made during the course of examination, particularly in the absence of a specific plea on that account.

For the reasons mentioned above, there are no merits in this C.R.P. and the same is accordingly dismissed. The petitioner-tenant is given nine months time from to-day to vacate the schedule premises subject to the condition that he continues to pay the rent. There will be no order as to costs.