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Pyari Bai and anr. Vs. Tadeka Gowrama - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 11 of 1971
Judge
Reported inAIR1971AP411
ActsAndhra Pradesh Building (Lease, Rent and Eviction Control) Act, 1960 - Sections 10 and 10(3)
AppellantPyari Bai and anr.
RespondentTadeka Gowrama
Appellant AdvocateB.C. Jain, Adv.
Respondent AdvocateH.S. Gururaja Rao, Adv.
Excerpt:
.....- sections 10 and 10 (3) of andhra pradesh building (lease, rent and eviction control) act, 1960 - eviction of tenant sought on ground of personal requirement - personal requirement was setting up new business - court not concerned with choice of business activity - primary concern of court whether bonafide requirement made out or not - reasonable needs of landlord come within expression 'bonafide requirement' - evidence showed that landlord genuinely intended to commence business in premises from which tenant was sought to be evicted. - - jain that the order of eviction is liable to be set added on three grounds, firstly, it is urged by the case clearly point to the male fides or unreasonableness of the plea of the alleged personal requirement. the only requirement in the statute..........play only where the landlord requires additional accommodation and that in the present case the landlady is not seeking eviction for additional accommodation for an existing business and therefore, the application is unsuatainable. in my opinion, the provisions that is applicable to the case on hand is sub-clause (b) of clause (iii). it is only this provision that enables the landlord to seek eviction for the purpose of a business which the landlord bona fide proposes to commence. it does not require must effort to come to the conclusion that where the legislature has provided for eviction for the purposes of a proposed new business cl (c). relied upon by the learned counsel can have no application. the reason is obvious. clause (c) is applicable only where there is an existing.....
Judgment:
ORDER

1. This revision petition arises out of an application for eviction of a tenant made under Section 10 of Andhra Pradesh Building (lease Rent and Eviction Control) Act, 1960 hereinafter referred to ass the Act. In her application for eviction. of the tenant on the grounds, She sought the eviction of the tenant on the ground of her personal requirements of the building for the commencement of the business in copper and brassware. She also alleged that the tenant was guilty of wilful default in the payment of the rent and that the tenant had in fact secured alternative accommodation.

2. The tenant whom the petition was laid died on December 9. 1967. His wife was brought on record and has resisted the application. At her instance a person said to be her adopted son was also added as party respondent.

3. The application was made several years ago and the proceedings have dragged on their weary length for the considerable time. The pleading of the respondent was filed as long as 29th May, 1963. A further plea was set up by way of amendment and the tenant stated that the hardship accruing to him by eviction outweight the advantage gained by the land lady as a result of eviction. The tenant was allowed to raise additional pleas in reply to the rejoinder filed by the land lady.

4. The Controller upheld the plea of the land lady about her bona fide requirement of the premises for the commencement of a business. it was also found that there was willful default on the part of the tenant. The Rent Controller held that the tenants committed acts of nuisance terrify rendering themselves liable to b evicted under Section 10 (2) (iv) of the Act. The allegation that the tenants secured alternative accommodation was negative. In the result, the Rent Controller directed the eviction of the tenants.

5. On appeal preferred by the tenants, the Chief Judge, City Small Cause Courtat Hyderabd confirmed the order of eviction though he did not completely concur in the findings of the Rent Controller. The appellate authority dissented from the finding of the Rent Controller that the tenant had committed willful default but the confirmed the finding of the Controller that the land lady had proved her bona fide requirement of the use of the premises for a business intended to be commenced by her.

6. On behalf of the tenants, it is submitted by Mr. B. C. Jain that the order of eviction is liable to be set added on three grounds, Firstly, it is urged by the case clearly point to the male fides or unreasonableness of the plea of the alleged personal requirement. He laid stress on the fact that when the identical ground was urged in an earlier application made by the land lady and when the Controller negative her plea, the land lady did not pursue the proceedings but acquiesced in the adverse finding. The earlier application was made as long as 1958. The fact that when she met with an adverse result in the court of the first instance, she did not challenge the finding preferring an appeal or by urging that ground in the appeal, does not warrant the inference suggested by the counsel that the land lady never entertained the intention or at present lacks the intention of commencing a business. The position as on the date of the present application is the crucial factor and what transpired nearly ten years ago must be held to be no material significance.

7. It is then submitted by the learned counsel that the land lady never conceived of the idea of doing any business over the years, since the death of her husband and that is highly improbable that she would think of a business venture especially when she has no need to augment her income. His criticism is that the appellate authority and the Control did not pay sufficient attention to the improbability of a later street in the business world being made by the land lady. I do not think this criticism is ell founded. The counsel also submits that there is no rational explanation why the land lady should think of doing business in Copper and Brassware for which business alone the premises had been used by the tenants all these years. It is not for the court to probe into the reasons that weight with the land lady in making her choice of the business activity. What the court is concerned with is whether a bona fide requirement is made out. It is not permissible for the court to embark on an enquiry as to the prudence or soundness of the venture proposed to be commenced by the land lady.

8. Learned counsel also submitted that there must be proof of requirement of the premises for the use of the land lord and that the word 'requirement' implies something in the nature of necessity and not a mere anticipation of a further need. I do not agree with the learned counsels' submission. IN Parasuramaiah v. Lakshmma. : AIR1965AP220 it has been laid down as follows:

'Broadly stated, mere wish, convenience, whim or fancy of the land lord will not be enough to show that the landlord 'requires' the premises bona fide. The land lord must allege and prove certain circumstances or facts which go to prove his need. It is not necessary that such a need would be of an absolute character,:

9. The Division Bench that decided that case proceeded to observe that what is meant by bona fide requirement is that the land lord requires the premises for his reasonable needs and that he is not seeking eviction on the presence of requiring additional accommodation.

10. If the claim for personal occupation is not untrue and if there is no basis for holding it to be a mere pretense for securing eviction the requirements of law must be held to have been met. The tenants sought to make out in the present case that the land lady lacked the means fir commencement the business in question . But the evidence which has been concurrently accepted by the tribunals established beyond doubt that the land lady's means are sufficiently abundant ass to finance the business venture.

11. It is further submitted by Mr. Jan that the mere possession of means is insufficient to establish bona is said that there must be some proof of positive steps taken or essential preliminaries undertaken. There is according to counsel, no evidence in this case anything to warrant the inference that there is an imminent prospect of the commencement of the business. On a reading of the Section . I do not think it is permissible for the court to apply the test implicit in the argument of the counsel. All that the section requires is that there must be evidence of the need of the building for the purpose of business which the land lord bona filed proposes to commence. If the argument of the learned counsel is accepted and if it were to be held that there must be proof of the preliminary steps having been taken, it would be tantamount to judicial legislation by the addition of criteria not preside by the statute. The language of the clause is quite clear and it enabled the landlord to obtain eviction if, in the opinion of the Controller, the land lord bona fide proposes to commence a business. the obligation which the law imposes on a land lord is to place before the court such material ass would warrant the formation of an opinion by the Controller that there I a bona fide proposal to commence a business. The legislature had advisedly used the words 'proposes to commence'. The import of this phrase is unmistakable and it can only mean that the land lord must satisfy the court that he has the intention to use the premises for a business that is intended to be commenced. The only requirement in the statute is that the court must be satisfied that there is in existence a bona fide proposal for the commencement of the business.

12. The second submission made by the learned counsel is that the premises in question were let out partly for a residential purpose and partly for a non-residential purpose and that it is not competent for the land lady to seek eviction on the ground that the whole premises are required for a non-residential purpose. In this connection, reliance has been placed on Miss S. Sanual v. Gain Chand, : [1968]1SCR536 . In that Ajmer Rent Control Act, it was held that the premises were let for a composite purpose. The contract of tenancy being a single and indivisible one, it was not open to the court to split up the contract into two parts and to allow the application for eviction in respect of a portion of the premises. The facts here, ass pointed out by the appellate authority, are clearly distinguishable. After an elaborate examination of the evidence, the appellate authority came to the conclusion that the entire premises had been let to the tenants for a non residential purpose. If contrary to the understanding between the parties, the tenant had used part of the premises for residence. that cannot alter the nature of the tenancy nor did not premises become partly residential and partly non-residential by reason of the unauthorized user of the tenants. The test is what was the dominant or the principle or the sanctioned user. On the evidence, there can be little doubt that the sanctioned user was of a non-residential character, I have been taken through the entire evidence and counsel made a endeavor to assail the finding fact of the appellate authority. On a reading of the evidence, I am of opinion that there is no reason to dissent from the findings of the appellate authority. R. W. 1 clearly stated that he was a boy when the house was taken on rent and that he does not know for what purpose it was taken. Counsel submits that the front portion of the premises was let out earlier and the clear portion at a later date and that the statement made by R. W. 1 relates only to the earlier transaction. I do not think it is permissible to read the evidence of the witness in that sense. Taking the entire evidence into consideration I find no reason to hold that the finding of fact of the appellate authority is improper or illegal, There is clear evidence to sustain the finding that the entire premises had been let out for non-residential purpose.

13. The third contention of the learned counsel is that the case on hand comes under Section 10(3) (iii) (c) and not under the provisions of Section 10 (3) (iii) (b). The two provisions in so far as they are relevant may be set out in order to appreciate the contention of the counsel.

'Section 10 (3) (iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise:

(a) for the purpose of a business which he is carrying on, on the date of the application, or

(b) for the purpose of a business which in the opinion of the controller, the landlord bona fide proposes to commence.'

Section 10 (3) (iii), A landlord who is occupying only a part of a buildings, whether residential or non-residential, may, notwithstanding anything in clause (a) apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of business which he is carrying on as the case may be.

14. Basing his argument on the provisions of clause (c) counsel submitted that the provisional comes into play only where the landlord requires additional accommodation and that in the present case the landlady is not seeking eviction for additional accommodation for an existing business and therefore, the application is unsuatainable. In my opinion, the provisions that is applicable to the case on hand is sub-clause (b) of clause (iii). It is only this provision that enables the landlord to seek eviction for the purpose of a business which the landlord bona fide proposes to commence. It does not require must effort to come to the conclusion that where the legislature has provided for eviction for the purposes of a proposed new business Cl (c). relied upon by the learned counsel can have no application. The reason is obvious. Clause (c) is applicable only where there is an existing business and additional accommodation is required for the purpose of such business. The two provisions are to be applied to two different situations. They are mutually exclusive and the submission of the counsel that clause (c) is of an overriding character and must be applied even in case coming within the purview of the other provision is unsustainable. There is, therefore no merit in this contention urged by the counsel on the construction of the two provisions.

15. The result is that the revision petition fails and it is accordingly dismissed with costs. The order of eviction will not be executed for a period of two months from today

16. Petition dismissed.


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