Vuppala Rama Mohana Rao vs Venkineni Parameshwara Rao

Y.V. Narayana, J.—Landlord is the revision petitioner herein. His petition filed u/s 10 (2) (i) and Section 10 (3)(a) (iii) (a) & (b) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short, ''the Act''), in R.C.C.No. 26/1985 was allowed by the learned Rent Controller, Eluru, by Order dated 5-3-1992. However, on an appeal by the tenant, the Appellate Authority (Subordinate Judge, Eluru) by Order dated 25-7-1994 in C.M.A.No. 6/1992, reversed the findings of the learned Rent Controller and dismissed the petition for eviction. Hence, the revision.

Brief facts:- The revision petitioner''s father let out the petition schedule shop to the tenant about 30 years back and after the demise of his father, the revision petitioner became owner of the shop. The respondent is carrying on brass and steelware business in the petition schedule shop, and he has been continuing the said business as on the date of filing the petition for eviction by the landlord. The landlord sought eviction of the tenant on two grounds, viz., wilful default in payment of rents and bona fide requirement. It is the contention of the petitioner-landlord that some time prior to the filing of the petition he used to do business in electrical goods in one of the shops in ground floor situated towards the north of the shop which is let out to the respondent. It is not out of place to mention here that apart from the petition schedule shop, there are three more shops in the ground floor which belong to the petitioner. He let out all the three shops. While so, the petitioner started doing contract works in electrical wiring etc., and so he stopped doing business in electrical goods in the said shop room situate in the ground floor. Subsequently, he let out that shop room also to some other tenant. Later, the petitioner occupied one small room in the upstair portion of the building ''for storing the electrical goods for purpose of his contract business and also for occasionally retail sales.'' While things stood thus, the petitioner entertained an idea of starting wholesale and retail business in electrical goods by shifting into the petition schedule shop. Having failed in his efforts to get the respondent vacated from the shop, the petitioner ultimately filed the petition for eviction.

The learned Rent Controller, after an elaborate enquiry and after hearing arguments, held on the issue of wilful default that there is no wilful default on the part of the respondent in payment of rents and thus negatived the first contention. He, however, upheld the second contention of the petitioner-landlord and accordingly allowed the petition. The Appellate Authority, on the question of wilful default, observed that since there was no cross-appeal by the landlord, the contention with regard to wilful default need not be answered in the appeal filed by the tenant. He, therefore, went on to decide the second point i.e., bona fide requirement and ultimately held against the landlord.

Mr. T. Veerabhadrayya, learned Counsel for the revision petitioner-landlord, contended that the Appellate Authority erred in holding that the landlord is in occupation of a non-residential building when he had specifically pleaded that he is not in occupation of any other non-residential building. It is further contended that there is no denial by the tenant to the said contention and that therefore it shall be deemed that the petitioner is not residing in any other non-residential building. He also placed reliance upon the Judgments reported in P. Venkatakrishna Rao v. Dr. B. Seettharam, 1989 (3) ALT 284 = 1989 (1) APL) 261; Motamarri Surya Kameswara Rao Vs. Namburu Satyanarayanamma (died) per L.Rs., ; Manohar Chowla Vs. Shair Ali, and K. Nagappa Vs. T.D. Krishansa and Another, .

On the other hand, it is contended by the learned Counsel for the respondent-tenant that mere pleading that the landlord is not in occupation of any non-residential building is not sufficient and that the said pleading must be substantiated by adducing positive evidence so as to seek eviction. It is submitted that since there is no evidence adduced by the landlord to the effect that he is not in occupation of any other non-residential building and in the light of the evidence adduced to the contra that the petitioner is using the upstair portion of the building for business purposes, it should be presumed that the petitioner is in occupation of a non-residential building and, therefore, he is not entitled to seek eviction u/s 10 (3) (a) (iii) of the Act on the ground of bona fide requirement.

Section 10 (3) (a) (iii) of the Act clearly postulates that a landlord, who seeks eviction of his tenant occupying a non-residential building on the ground of bona fide requirement, must be able to show by adducing evidence that he is not residing in any other non-residential building in the city, town or village, as the case may be. Therefore, the burden primarily lies upon the landlord to prove that he is not in occupation of any other non-residential building. Thus, there must be a positive pleading and also evidence to the effect that the landlord is not occupying any other non-residential house. While so, the pleading put forth by the landlord is that initially he used to do business in electrical goods in one of the shops in the ground floor situated towards the north of the petition schedule shop. Later, he stopped that business as he began doing contract works in electrical wiring etc., and vacated the said shop. Subsequently, he occupied the upstair portion of the building and started using it for his residential purposes. He also states that he is using one small room in the upstair portion for storing and selling electrical goods in retail. It is the contention of the petitioner-landlord that since the upstair portion is insufficient both for his residential and non-residential purposes, he intended to shift his business into the petition schedule shop so as to expand his business. He stated so in his evidence also. It has also come in the evidence that prior to the occupation of the upstair portion by the landlord, the same was let out to ''Paragaon Shoe Mart''. On a demand made by the landlord to vacate the said shop, the said shop was vacated and thereafter the petitioner occupied the same and has been using it. Even though he contends that he is occupying the upstair portion mainly for residential purposes and using a small room for business purposes, there is no proof for the said contention. It is, however, elicited in the evidence of the landlord that he is having a house near ''Gosamrakshna Samithi'' and he let it out to six tenants. The petition schedule shop is situated in the main Bazaar i.e., in a busy commercial locality. All the four rooms in the ground floor are let out for business purposes. Even the upstair portion which the landlord is occupying is also being used for business purposes. Therefore, in the light of the evidence adduced on record, it is somewhat strange to believe that a person who is having spacious accommodation in a good residential locality occupies for his residential purposes a shop room in the upstair portion of the building which is located in a busy commercial area. In the absence of positive evidence on record to the effect that he is occupying the upstair portion of the building mainly for his residential purposes, the evidence of P.W. 1 appears to be untrustworthy. Moreover, the learned Appellate Authority recorded a finding that the upstair portion is being used mainly for business purposes by the landlord. Since the downstair portion is more suitable for business purposes, perhaps, he intended to occupy the petition schedule shop. On a proper appreciation of the evidence, the appellate authority reversed the finding of the learned Rent Controller. I do not find any illegality in the order of the appellate authority.

The contention of the learned Counsel for the petitioner that since there is no specific denial by the tenant to the plea taken by him (landlord) that he is not in occupation of any other non-residential building the landlord is deemed to be not in occupation of any other non-residential building, is somewhat strange. Mere raising of a contention in the absence of evidence in support of the said contention is like raising a structure with foundation and pillars but without roof. Such a contention without proof, irrespective of the fact whether the said contention is denied or not denied by the other party in specific terms, will not be of any use to the party who takes that contention. Further, merely because a contention raised is not denied by the other party, it cannot be presumed that such a contention is automatically proved without there being any evidence. In this case, the landlord having taken the plea is not able to establish the same by adducing evidence. Therefore, the argument of the learned Counsel for the petitioner that there is no denial to the contention of the landlord and that in the absence of such a denial, the contention is deemed to be accepted, does not lack any merit. The decisions cited by the learned Counsel reported in P. Venkatakrishna Rao v. B. Seetharam (1 supra) and M. Surya Kameswara Rao v. N Satyanarayanamma (2 supra) are not applicable to the facts of the case on hand. Further, there is no quarrel on the proposition that is laid down in the decision in K. Nagappa v. T.D. Krishnasa (4 supra). In this case, when it is proved that the landlord being in occupation of a non-residential building is seeking another non-residential building which is in occupation of the respondent, it cannot be said that the petitioner requires the petition schedule shop bona fide and that there is no oblique motive in seeking eviction. Therefore, the said decision is not useful to the facts of the case. The decision in Manohar v. Shair Ali (3 supra) also does not come to the rescue of the petitioner when he failed to prove that he needs the petition schedule premises for his bona fide requirement. For all these reasons, I am of the view that there are no merits in the revision petition and the learned Appellate Authority was perfectly justified in dismissing the petition for eviction. There is, therefore, no illegality in the order under revision.

The revision petition is dismissed. No costs.