@JUDGMENTTAG-ORDER
D.S.R. Varma, J.@mdashThis revision petition is filed challenging the order dated 7-7-1999 passed by the Court of Senior Civil Judge, Nellore in R.A.No. 2/1983. By the said order, the lower appellate Court, (on remand by this Court in C.R.P.No. 910/1990 dated 27-2-1996 with certain observations), reversed the order dated 16-11-1982 passed by the Court of Rent Controller-cum-Principal District Munsif, Nellore in R.C.C.No. 39/1978 and ordered eviction of the tenant by allowing the appeal. Aggrieved by the order of eviction, the tenant has preferred this revision.
2. For the sake of convenience, the parties shall be referred to as tenant and landlord.
3. Heard Sri S.R. Ashok, learned Senior Counsel for the revision petitioner - tenant and Sri S. Srinivas Reddy, learned Counsel for the Respondent-landlord.
4. Before referring to the respective contentions, it is necessary to note few admitted facts on records, as under:
The landlord obtained the schedule premises under a registered partnership deed dated 16-5-1958 under Ex. A-1. In Ex. A-l partition deed, it is shown that zinc shed exists in an area of three ankanams, and in the remaining area, the schedule house exists and the tenant has not disputed the same and however, he cannot dispute the title of the landlord, as envisaged u/s 116 of the Indian Evidence Act, 1872. Originally, the schedule premises was let out by the father of the landlord to the tenant in the year 1952 at the rate of Rs. 50/-per month and later on in the year 1964, the rent was enhanced to Rs. 100/- per month. In the meanwhile i.e., during the years 1952 to 1964, the partition took place and this schedule premises fell to the share of the present landlord under Ex. A-1. When the landlord required the premises for his personal use, he issued two notices under Exs. A-3 and A-4 and since, there was no positive action of vacation, he filed the present eviction petition before the trial Court u/s 10(3)(a)(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act and the trial Court dismissed the same and on appeal, the judgment of the trial Court was reversed and the eviction was ordered.
5. In the eviction petition, the case of the landlord is that he has let out the entire building in the year 1964, consisting of building in 6 ankanams and zinc shed in 4 ankanams to the tenant and that he require the schedule premises for his bona fide requirement and secondly he pleaded the ground of wilful default in payment of rent by the tenant. The rent by the time of filing eviction petition was being paid at Rs. 265/-per month and for that amount of Rs. 265/-, two receipts were admittedly being issued i.e., one for Rs. 140/- and another for Rs. 125/- and as required by the landlord, the tenant was paying an amount of Rs. 106.25 ps. to the father of the landlord once in three months.
6. In the year 1968, when the landlord required the premises, he got issued Ex. A-3 dated 23-8-1968 requesting the tenant to vacate the premises, in order to start a business of his own in the schedule premises. There was no response to the said notice and one year later, the rent was enhanced from Rs. 100/- to Rs. 155/-. Thereafter, again in the year 1974, the landlord got issued another notice under Ex. A-4 dated 15-11-1974 renewing his request. As usual, there was no response but however, the rent was increased from Rs. 155/- to Rs. 185/- and thereafter to Rs. 265/- when the landlord filed the present eviction petition.
7. The enhancement of rent and the payment of rents are not disputed and subsequently the landlord even gave up the plea of wilful default in payment of rent by the tenant and he strongly pressed the ground of bona fide requirement.
8. The case of the tenant in the counter is that the landlord suddenly increased the rent to Rs. 750/- and when he did not agree for the said enhancement, the landlord in order to see that rent is increased, had filed the present eviction petition and he has no bona fide requirement, as he is already involved in a partnership firm.
9. But on evidence it was held proved that the landlord did not agree for the enhancement of rent and he required the schedule premises for starting an independent business. The lower appellate Court even relying on various decisions held that enhancement of rents does not debar the landlord from claiming the eviction on the ground of bona fide requirement.
10. The other ground that was taken by the tenant in the counter that the landlord has no means to start a business, was also negatived by the lower appellate Court relying on various judgments, which are to the effect that landlord need not satisfy the Court or the tenant that he has means to start the business of his own and he has to prove only his bona fide requirement. Even in this revision petition, the learned Senior Counsel did not press this ground.
11. Both before the lower appellate Court and this Court, the tenant disputed that when the schedule premises was let out, there was no zinc shed and it was only a vacant site and subsequently he spent certain amount and built that shed and as such the Rent Control Court has no jurisdiction.
12. It is on record that the case of the landlord is that he has let out the entire building in the year 1964 consisting of front terraced building of about six ankanams and a zinc shed on the rear side of about 4 ankanams and that the tenant was paying rent at Rs. 265/- per month as on the date of filing of the petition and for the amount of Rs. 265/-, two receipts one for Rs. 140/- and another for Rs. 125/- were admittedly being issued.
13. At the earliest stage of filing counter, there is no denial of these factors. But the present contention was sought to be taken when the landlord who was examined as P.W. 1, deposed in his cross-examination that prior to letting out the shed to the tenant, it was a vacant site and the tenant put up the shed. The tenant who was examined as R.W. 1 deposed that he had taken the site for rent and put up the shed by spending Rs. 400/- in the year 1964-65.
14. From the above it is clear that basing on the statement of P.W. 1 in his cross-examination and also basing on the evidence of R.W. 1, the present contention that prior to letting out, there was no zinc shed and it was built by the tenant and as such the Rent Control Court has no jurisdiction, was sought to be taken. This specific averment was admittedly not made in the counter.
15. The Court below had discussed the entire evidence and also taking into account Ex. A-1 partition deed, which is already referred to above, held that prior to 1964 also the zinc shed existed and due to natural calamities, or due to some other reasons, the same, might have collapsed and most probably the tenant might had come forward to rebuild the same for his use and just because P.W. 1 deposed in the cross-examination that prior to letting out, it was a vacant site, it cannot be held that it was a vacant site, eschewing the documentary evidence and accordingly the Court below negatived the contention of the tenant that the Rent Control Court has no jurisdiction.
16. Further when there is no pleading or evidence on record to show that zinc shed is a separate item, the trial Court gave a finding that zinc sheet shed is a separate item and does not form part of the entire tenancy. The lower appellate Court, relying on various decisions and also on the entire material on record, rightly held that the Court cannot make out a new case that was not pleaded by the parties and accordingly negatived such imaginative finding of the trial Court.
17. Ultimately the Court below rightly observed that even the open space abutting the tenanted premises either by 1952 or a shed in it, in 1958 and again an open site prior to 1964, can also be deemed as part of the demised premises in view of Section 2 of the Rent Control Act.
18. Nextly it is on record that the landlord earlier carried on some business and due to failure of the same, he shifted to other business and finally at present, he is running a partnership business along with his brother and sister-in-law under the name and style of "Lakshmi Khadi Emporium" at Nellore and his case is that since he has no independent business and as he gained sufficient experience in doing cloth business and further since he has no other non-residential premises of his own, he wanted the schedule premises for doing the business in cloth and as the tenant is not vacating the premises despite issuance of two notices earlier, he filed the present eviction petition.
19. The contention of the tenant before the Court below is that since the landlord was already running a business and since the same has been flourishing, there is no dire need for him to start another business and seek for eviction. The Court below on evidence, both oral and documentary and also relying on the judgment of various High Courts, held that merely because the landlord is running a partnership firm, it cannot be said he is not entitled to seek eviction of tenant for running his own business. Further the Court below also held that since the landlord is running a partnership firm, that by itself does not permit to imply that the premises where such business is being carried, belong to the partnership firm and accordingly considering the entire material on record, ordered eviction on the ground of bonafide requirement of the landlord.
20. The learned Senior Counsel Sri S.R. Ashok, raised mainly two contentions. Firstly he contended that admittedly the need might have existed to the landlord prior to 1974 i.e., before issuance of Exs. A-3 and A-4, because at that time the landlord has no flourishing business, but subsequently as per the case of the Landlord, he is involved in a partnership firm and as such there is no need at present. He further contended that landlord has not proved his need or reason for starting independent business by giving genuine and honest reasons and just because the landlord desires or intends to start a business without any genuine reasons, the tenant cannot be evicted and as such the Court below is not justified in ordering eviction. In support of his contentions, he relied on the judgment of the Apex Court reported in
21. Secondly he contended that the lower Court should take note of subsequent events i.e., after issuance of Exs. A-3 and A-4, the landlord has been involved in a partnership firm, and as such the eviction petition is liable to be dismissed and in support of this contention, he relied on another judgment of the Apex Court reported in
22. Finally he submitted that the tenant is carrying on the business in the schedule premises since more than 30 years and he has no other alternative non-residential premises of his own for carrying on business and if the order of eviction is confirmed, the tenant would be put to severe hardship.
23. With these submissions, he sought for setting aside the impugned order.
24. On the other hand Sri S. Srinivas Reddy learned Counsel appearing for the respondent-landlord supporting the impugned judgment contended that neither the landlord''s involvement in a partnership firm is a ground to construe that he has no bonafide requirement, nor would it prohibit or debar the landlord from starting his own business in the non-residential premises of his own. He further contended that the judgments relied on by the learned Senior Counsel for the tenant arose out of different contingencies and also based on different facts and circumstances and as such they are not applicable to the facts of the present case. In support of his contentions, he also relied on series of judgments and they shall be referred to in the course of judgment at appropriate place.
25. Finally he submitted that the landlord requires the premises for starting a business of his own and if the eviction order is not confirmed, the landlord would be deprived to carry out his own business in his non-residential premises and he further submitted that the tenant is always at liberty to invoke the provisions u/s 10(5)(a) of the Rent Control Act, if the landlord fails to carry out his business.
26. To meet the first contention raised by the learned Senior Counsel on behalf of the tenant it is necessary to note few facts at the cost of repetition.
27. From the evidence on record, it is clear that the landlord is running a partnership firm along with his brother and sister-in-law since 1977. Earlier to that he has issued two notices under Exs. A-3 and A-4, to the tenant for vacating the premises and as there was no response and as the tenant did not vacate the premises, probably, instead of wasting time, as contended by the learned Counsel for the landlord, got involved in some business or the other and ultimately when those businesses did not flourish, he joined his brother and started a partnership firm in cloth business. Further it is not the case of the tenant that the landlord owns any other non-residential premises to carry out the business and further it is also nowhere on record that the landlord is running any other business of his own.
28. Coming to the aspect of ''need'', which the learned Senior Counsel had laid much stress that the landlord got issued two legal notices under Exs. A-3 and A-4 for vacating the premises in question and thereafter he became a partner in a partnership firm and finally after a long gap, when there was no response, he filed the eviction petition. He further submitted that except ''desire'', there is no ''need'' for the landlord to run an independent business.
29. In the decision relied on by the learned Senior Counsel in T. Sivasubramaniam''s case (cited 1 supra), at paragraph No. 4 the Hon''ble Supreme Court observed as under:
From the aforesaid decisions it is clear that mere desire of the landlord to live separately from his father cannot be attributed to his need for the premises occupied by the tenant. It is often seen that a desire often takes its origin from what one likes and dislikes and necessarily it is not dependent upon his need. But we cannot lose sight of the fact that sometimes the desire may be the outcome of one''s need. So when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bonafide. The need must be bona fide, genuine, honest and conceived in good faith. In the present case what we find is that it was not pleaded by the landlord in his petition that he for certain compelling reasons desired to live separately from his father and for that reason he required the premises. We also do not find any evidence on record to show that the landlord required the premises and his need was bona fide. The only material on record for eviction of the tenant before the Rent Control Authority was mere desire of the landlord to live separately from his father. Such a desire is not a substitute of the need for the premises, which a landlord is required to plead and establish. Thus, we are of the view that the landlord''s desire to live separately was not a valid ground for eviction of the tenants from the premises. We, therefore, find no substance in the submission of learned Counsel for the appellants.
30. In the above case, the eviction petitioner was the son. He expressed only his desire to start a business of his own, after getting separated from his father. In such circumstances, the Apex Court held that mere expression of desire in the eviction petition is not sufficient. It further found that the genuine need to start a business of his (son''s) own was not made explicit in the eviction petition and, therefore, the Apex Court held that since the compelling reasons for the eviction petitioner (son) to live separately from his father were not pleaded in the petition, the mere expression of the desire cannot be treated as bona fide need. The Apex Court further held that the landlord must set out his need for the premises and establish that his need is bona fide. It is also clear from the facts of the above case that there was no material on record expressing the need and only the desire was expressed. Basing on these facts, the Supreme Court laid down the principle that mere desire is not sufficient and the need should be established.
31. In this backdrop it is necessary to examine whether the landlord had expressed only his ''desire'' to start the business and not the ''need''.
32. A perusal of the plaint pleadings reveal that the landlord prior to 1963 was doing various kinds of business and for some time he was in film trade. From about 1964 he was a partner in Sri Raja Rajeswari Agencies and Industries till 1972 and in the same year, the firm was dissolved. At that time, he issued notice to the tenant to vacate the premises in order to enable him to start his own business. But the tenant had postponed vacating the premises on some pretext or the other. During 1972 to 1977 the landlord attended the cloth business run by his father-in-law and others to gain experience and finally from August 1977, he is doing partnership business along with brother and sister-in-law in cloth business. Further though the partnership business is continuing, as he was not satisfied with this venture, he intended and proposed to stat an independent business of his own in cloth and he required the petition schedule premises, since he has no other non-residential building of his own in the Nellore town, except the one in question.
33. In order to substantiate the above pleadings, the landlord examined himself as P.W. 1. In his deposition he stated that after his family division, the schedule premises had fallen to his share and the tenant has been paying the rents to him; that he belongs to business community; that he was not employed any where; that he has no other profession; that in 1963 he was a partner in a firm under the name and style of Sri Raja Rajeswari Agencies and Industries; that the said firm was dissolved in the year 1972 under Ex. A-2; that he had given notice to the tenant for vacating the premises under Ex. A-3; that there was no reply to the said notice; that the rent was enhanced from time to time; that subsequently he was attending the business run by his father-in-law in cloth to gain experience that; in 1977 himself and one of his brothers and sister-in-law opened Khadi Business; that his brother C.V. Krishnaiah has been managing the business; and that he wanted to open the cloth business with all varieties of his own.
34. From the above pleadings and evidence on record it is clear that the landlord had explained the background of his ''desire'' to have his own business, particularly in cloth. He also pleaded in specific terms about the ''need'' to start the business in cloth. Further it is clear that he has been a partner in the business run by his brother and sister-in-law and as he has no active role in the said partnership business, he intended to have a business of his own and it is not an uncommon phenomena. In other words till the date of filing of eviction petition, the landlord had only the desire, but the need was made explicit by stating that though he has been a partner in a firm, since he has no active role to play, he wanted to start a business of his own in cloth in the light of his past experience, gained from his father-in-law and others. Therefore, it can safely be inferred that the desire which was earlier sprouted, had over a period of time, culminated into the need and as such it can be held that there is a nexus between the desire and the need in the present case.
35. In view of the above facts and circumstances, the principle laid down by the Supreme Court though unexceptionable, not applicable to the facts of the present case.
36. Further there is no prohibition under law that a person involved in a partnership firm, should not start a business of his own, in a non-residential premises of his own to augment his income and to make a business career of his own. It has to be noted that it is no where on record that he is doing another business of his own, or that he owns another non-residential premises, apart from the one in question and it is no where on record that the premises in which the landlord is involved in partnership business belongs to the firm.
37. In similar circumstances, in the decision relied on by the learned Counsel for the landlord - respondent in Ghulam Hussain (died) v. D. Raj Kumar 1997 (2) ALT 146 this Court, relying on various earlier decisions of this Court, held at paragraph No. 6 as under:
Then the learned Counsel for the petitioners contended that if the landlord wants to augment his income, he can ask the tenant to increase the rent and this plea was accepted by the learned Rent Controller. There is absolutely no merit in this plea. It is not for the tenant to advise his landlord how to augment his income and it is also common knowledge that increase in the rent is not equivalent to the quantum of income which the landlord can earn exploiting the premises in the best way possible. Thus, the landlord who is now carrying on partnership business along with another person at rented premises and wants the suit premises for the purpose of carrying business in sweets, satisfied the ingredients of Section 10(3)(a)(iii) of the Act and accordingly, the appellate Court is right in allowing the eviction petition. The decision in Smt. Vidyavati Bai and Anr. v. Shankerlal and Anr. 1987 (2) ALT 550does not apply to the facts of the present case as the respondent - landlord does not have any other non-residential premises.
38. In the decision reported in Chillampally Eshwaraiah (died) per LRS. v. Gangaram Sanghi, 1997 (2) ALT 146 at paragraph No. 8, it is held as under:
In
39. In another decision reported in
Regarding the need to do business, it is not for the tenant to say that there is no necessity for the landlord to do business on the ground that he is already having a business and getting some remuneration. It is admitted fact that the 2nd petitioner is already doing business and that the family business is hardware, paints and engineering goods. But, merely because second petitioner was doing some other business and getting some income, it does not mean that he need not start another business. Regarding the financial capacity, merely because, he had no balance in the bank, it cannot be inferred that the petitioner cannot start business. He can as well take loan from bank or borrow from some other private sources and start the business. There is no evidence that he is not creditworthy to the extent of Rs. 1 lakh.
40. From a reading of the above judgments, it is clear that even if a landlord is involved in a partnership business, he is entitled to seek eviction of the tenant from his non-residential premises for carrying on his independent business and it is not for the tenant to say that he has no need or that he has no financial capacity etc. Further it is not on record that the landlord owns some other non-residential premises to carry out his business.
41. As regards the second contention of the learned Senior Counsel on behalf of the tenant that need might have existed prior to issuance of Exs. A-3 and A-4, but since subsequently he is involved in a partnership firm and since the same is flourishing, there is no need or necessity and this subsequent development should be taken in account and dismiss the eviction petition and the judgment relied on in this behalf cited 2 supra, cannot be accepted.
42. The reasoning giving on the first contention relying on various decisions of this Court holds good even for this second contention. Further a reading of the above judgment of the Apex Court relied on by the learned Senior Counsel cited 2 supra reveals that the landlord in that case sought eviction of tenant from his non-residential building for his personal requirement and accordingly the eviction petition was ordered. The same was challenged by the tenant before the lower appellate court and in the meanwhile the landlord acquired the possession of one of the premises in the same non-residential building, which he has let out to another tenant and the same was sufficient to carry out his business in Pharmaceuticals, but the lower appellate Court ignoring that fact, confirmed the order of eviction. In the appeal, when the tenant brought this fact to the notice of the Apex Court, it was, held that subsequent developments should be taken into consideration while confirming the order of eviction. This proposition laid down by the Apex Court in the above judgment apparently is not applicable to the facts of the present case.
43. In the present case admittedly the landlord has no other non-residential premises to carry on his business. Further as per the above decisions there is no embargo or impediment for the landlord who is involved in partnership firm, to start a business of his own in his non-residential premises. And this bonafide requirement is proved by the landlord by adducing oral and documentary evidence. Hence, the contention of the learned senior Counsel in this behalf does not merit for consideration and accordingly the same is rejected.
44. The lower appellate Court on consideration of the entire evidence, both oral and documentary and with cogent and convincing reasons, gave the findings that the landlord require the schedule premises for running his own business and this requirement is bona fide and the lower appellate Court also gave a finding that the except the one in question, to carrying on his business, the landlord has no other non-residential premises.
45. Therefore, from a reading of the entire impugned order, I do not find any justifiable ground to reverse the findings arrived by the lower appellate Court while ordering the eviction. Moreover, in the decision reported in
5. At this stage, it may also be mentioned that in exercise of its revisional jurisdiction u/s 20 of the Act, the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit". It is no doubt true that the scope of the revisional jurisdiction conferred u/s 20 is wider than that conferred u/s 115 C.P.C. But at the same time, a revision u/s 20 cannot be equated with an appeal. Moreover, the revisional power conferred u/s 20 also embraces an order passed by the Appellate Authority. While considering the provisions conferring revisional power couched in a language similar to that contained in Section 20 of the Act, this Court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite the wide language employed, the High Court should not interfere with the findings of fact of the subordinate authority merely because it does not agree with the said findings. (See
46. In view of the above facts and circumstances and also taking into account the judgment of the Apex Court cited 6 supra, I do not find any illegality or jurisdictional error in the impugned order for interference of this Court under its revisional jurisdiction and accordingly, I pass the order as under:
The revision petition is dismissed. No costs.
47. Taking into consideration that the tenant has been in possession of the schedule premises for quite a long time, I grant 6(six) months time from to-day for vacating the premises in question and in case of default, the landlord is at liberty to proceed in accordance with law.
48. It is further made clear that if the landlord does not start his business in the premises in question as pleaded by him, the tenant is always at liberty to invoke the provisions u/s 10(5)(a) of the Rent Control Act.
