1. The Revisionists herein are the tenants. The respondent-landlord filed two petitions for eviction, R. C. Nos 2 and 3 of 1976 on hte grounds of wilful default and bona fide requirement of the schedule premises for the proposed commencement of his business. The eviction petitions have been filed under sec. 10 (3) (b) (iii) and sec 10 (2) (I) of the A.P. Buildings (lease Rent and Eviction) control Act, (hereinafter referred to as the Act). R. C. No. 2/76 briefly states: The petitioner (landlord) purchased the building Doors Nos. 2/48, 2/49, and 2/50 on the western side of the G.N. T. Road in Tagarapuvalasa under a registered sale deed dated 26-6-1969. Actual possession wasa given in so far as D. No. 2/50 is converned and symbolic possession in respect of D. Nos. 2/48 and 2/49 which were occupied by the two revisionists herein was given after the purchase the tenants assured to pay the rents to the petitioner. The petitioner purchased the building for the purposes of his business and therefore a notice was caused to be issued on 1-6-69 to vacate the building. Since it was not vacated the petitioner (landlord) filed a suit O.S. No. 140/69 which was decreed and the aggeal was dismissedd but however during the pendency of the appeal. Tegarapuvalasa was included in the Bheemunipatnam municipality and therefore the provisions of the Rent control Act were made applicable. Consequently
The decree obtained in the suit could not be executed since the respondents ( tenants ) did not give any notice to the petitioner as to what he should do with the rents and after the disposal of the suit when the petitioner was about to take action against the respondents under the Rent control Act, the respondents- tenants filed an application under sec. 8 of the rent control Act for allowing them to deposit the rents into Court, which was allowed this was with a view to get over the question of wilful default. The petitioner however submits that the respondent committed wilful default as they did not pay the rents wilfully. It is also stated that the schedule building is necessary for him for the purposes of his business and therefore the respondents are liable to be evicted.
2. In the counter it is stated that contrary to the agreement at the time of the purchase of the building between the petitioner and the respondents, the petitioner with a view to harass the respondents did not receive the rents and when the rents refused to be accepted and hence they had to file an application under sec. 8 which was allowed. It is further stated that the landlord is having a medical stores in his own building situated by the main road and the said building is sufficiently big enough for his business and the petition schedule premises is at a far off distance to the said medical shop and is not suitable for expansion of the land lord's business. The allegation of wilful default is denied and there is no bona fide requirement of the petitioner to commence his business and therefore the petitions should be dismissed.
3. The Rent controller on an appreciation of evidence and in the light of the pleadings held that though the wilful default has not been established, the bona fides on the part of the landlord for the proposal to commence his business is established and therefore eviction was ordered. The appellate Court likewise confirmed. Hence these revisions.
4. The learned Advocate General for the tenants contended that there was nothing in the pleading to show that there was any bona fide proposal to commence the business. It is only a bald plea that the schedule premises is required for his business which is not sufficient to attract successfully the provisions enacted in S. 10 (3) (a) (iii) (b) of the Act. Secondly both the courts below have erred in concluding that it is open to the landlord to choose the premises that would be convenient for his business and it is not for the tenant to advise as to which premises is required for the landlord. These considerations are wholly extraneous and therefore the conclusions arrived at are erroneous . The learned counsel for the landlord Sri. T. Ananta Babu contended that what is pleaded actually is that the schedule premises is required for his business which means for expanding his business and therefore the case falls within the ambit of sec. 10 (3) (a) (iii) (a) and not sec. 10 (3) (a) (iii) (b) of the Act and consequently it is needless to establish the bona fide requirement of the premises. Even otherwise it is not necessary that the entire material will have to be furnished through the pleadings. What is necessary is to convey the intention to the opposite party and inasmuch as it is clear from the counter itself wherein it has been stated that the existing business premises of the landlord was adequate enough and the rented premises are not actually required for the purposes of expansion of his business, there is a statutory compliance of the provision. Hence no grievance could be made in regard to the inadequacy of the pleadings. The learned counsel however at the fag-end brought to my notice para 3 (g) of the petition in R. C. No. 3/ 76 pertaining to the bona fide requirement of the premises. Which reads:-
'The petitioner submits that the schedule building is necessary for expanding his business, as the building in which he is feeling difficulty to keep his stocks. As the respondent committed wilful default he is liable for eviction'. And submitted that this would amount to sufficient compliance of the statutory provision and there is no prejudice that is caused to the tenant. This apart, it is further submitted that sufficient evidence has been left in to show that the premises are required as additional accommodation for the purpose of his existing business and therefore no prejudice or disadvantage has been caused to the tenants in conducting their case. Thirdly it has been submitted that this Court may not interfere in revision as two courts have concurrently held that the schedule premises are required for the business of the landlord.
5. Before analysing the arguments and counter-arguments and adjudicating the points involved. The statutory provisions and also the brief relevant pleadings may be noticed. Section 10 (3) (a) (iii) of the rent control Act reads thus:-
'A landlord my subject to the provisions of cl. (D), apply to the controller for an order directing the tenant to put the landlord in possession of the building
(i) and (ii) xx xx xx xx
(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 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) (c) reads as follows:-
'A landlord who is occupying ony a part of a building whether residential or non-residential, any notwithstanding anything in clause (a), apply to the controller for an order directing any tenant occupying the whole or any portion of the remaining par of the the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a buinsess which he is carrying on as the case may be'.
Section 22 of the Act is to the following effect:-
'Revision :- (1) The High Court may, at any time on the application of any aggrieved party call for and examine the records relating to any order passed or proceeding taken under this Act by the controller in execution under section 15 or by the appellate authority on appeal under Sec. 20, for the purpose of satisfying itself as to the leagality regualarity or of propriety of such order or proceeding and may pass such order in reference thereto as it thinks fit.
(2) The costs of and incident to all proceedings before the High Court under sub-sec. (1) shall be in its discretion'. The relevant plea in the eviction petition is at para 3 (f) and it reads as follows:-
'.............the petitioner submits that the respondent committed wilful default as he did not pay the rents wilfully and to harass the petitioner'.
Para 3 (g) reads as follows:-
'The petitioner submits that the schedule building is necessary for him for the purpose of his cusiness and as the respondent committed wilful default he is liable for eviction'.
The relevant extracts from the counter are as follows:-
'The allegation that hte petitioner purchased the petition schedule premises for the purposes of t his business is not correct.
The petitioner is haing medical store to his own building is sufficiently big enough for his business . the petition schedule premises is at a far of distante to the said medical shop and it is not at all suitable for the extention of the petitioner's business. The petition schedule premises is separated from the medical shop of the petitioner by number of ohter shops and also public streets'.
6. It is necessary to extract a few sentences from the evidence of P.W. 1
'To improve my business I purchased this building. Previously I used to have medical stores I.e. prior to the purchase of this building the same medical business is still continued. I also applied for brandy licence. I intend to improve business on fancy business side also. Hence I purchased this building. I secured one licence for my trade in liquors. I am getting liquors and doing business for the present in my medical shop. Since I am keeping liquors in my medical shop my sales on medical shop business have been reduced because respectables are not visiting my shops to purchase medicines because they will be misunderstood that they would be coming to purchase medicines. There is only one hall which is in any possession and enjoyment and that is being used for medical shop. There is no room behind the hall with staricase. It is not true to suggest that there is room be hind the hall with staircase. That staircase leads to the upstair hall. The upstair hall belongs to me and it is vacant. In between my medical shop and the suit schedule house there are 5 or 6 shops. After these 6 shops there is a lane. Adjacent to the lane the house I purchased for my business is situate in which the petition schedule house would be 6 feet x 10 feet. It would be more than that I cannot say the measurements'.
7. Relevant portion of the evidence of R. W. 1` is as under:-
'P. W. 1 has been doing business in medicines since 15 years. From the beginning he is doing business in drugs and wines. There is one room in the second floor. It is 20 feet x 1 5 feet. It is smaller than the first floor threre is another hall in the 3rd floor. Both the halls are in possession of P.W.1 P.W. 1 sold the 3rd room to pydiraju on 1-6-1978 there are 8 or 10 chops intervening P.W. 1st shop and our shops. The hall behind the petition schedule rooms is in a good condition. I am doing business in verandah. Its length is 10 feet and width 6 feet'.
8. The main contention is that the schedule premises are sought to be required for the purpose of the business which according to the learned advocate general is the bona fide proposal to commence the business whereas according to sri Anantha Babu it is only for the existing business. The provision which has been cited in the eviction petition is sec. 10 (3) (b) (iii). The said provision does not exist in the Act However. It is said to be under section 10 (3) (a) (iii) (a) of the Rent control Act. While reading even section 10 (3) (a) (iii) (a) what becomes manifest is that the landlord in order to require his own non-residnetial building let out for the purpose of his own business he ought not to be in the possession of his own non-residential building. It is conceded that the existing shop wherein the petitioner is carrying on his business is owned by him. If that is so that case cannot conceivably fall within the gamut of sec. 10 (3) (a) (iii) (a).
9. Secondly assuming without laying down that under sec. 10 (3) (a) (iii) (a) the petitioner herein who is admittedly occupying his own non-residential premises wherein he is carrying on his buisness is entitled to require his own non-residential building let out to the tenant herein, still it has to be seen whether the ingredients of the statutory provisions have been established or not as per the learned advocate General the words used in para III (g) of the petition 'for the purpose of his business' admit of no ambiguity. According to him they convev a general intention of requiring the premises for some business and not 'for the purpose of a business which he is carrying on' as per sec. 10 (3) (a) (iii) (a) and therefore in the absence of anything in the pleadings one cannot read more than what has been stated by the petitioner himself. The counter argument of the learned counsel for the tenant is that the words'for the purpose of his business' convey specific and explicit meaning to show that for the purpose of existing business which he is carrying on' as per the provisions laid down in sec. 10 (3) (a) (iii) (a).
10. In my judgment the words as employed in para 3 (g) of the petition are capable of being construed in two ways. It may be for the purpose of some business which the landlord requires the premises or it may perhaps also be that for the purpose of existing business the premises are required. But the Rent control Act being the beneficial legislation for the tenant the interpretation in case of ambiguity which is favourable to the tenant has to be adopted. In this case, in particular in the absence of the words employed in S. 10 (3) (a) (iii) (a) namely 'for the purpose of business which he is carrying on'It is difficult to construe that the petitioner's requisition of the premises was for his existing business which he is carrying on. It will be reading something more than what has been stated in the petition and therefore. In any view the petitioner desired the premises for the purpose of business which he proposes to commence. If that is so what has next to be seen is whether there is a compliance of the provissions enacted in S. 10 (3) (a) (iii) (b). The provision is emphatic. It postulates that the petitioner-landlord must bring out adequately the necessary material without any ambiguity enabling thereby the tenant to counteract the claims sought to be made by the landlord. In para III (g) there is nothing to show that the landlord bona fide proposes to commence the business. The para III (g) is as bald as anything and nothing turns upon it to show that hte landlord boan fide proposes to commence the business. The case law cited across the bar is no doubt divergent in this as to what material that has to be placed before the controller to form the opinion whether sufficinet material will have to be furnished in the pleadings itself or whether it could be established by way of evidence in hte trial of the case. The case law cited in favour of the proposition thathte petitioner must state full particulars straight in the pleadings itself that he requires the premises for bona fide commencement of the proposed business is:-
Tiruveedhi Ramanjaneyulu v. Araveti venkata subbamma (1980) 2 Andh LT 315.
In this Jeevan Reddy. J., held that :-
'the petition for eviction should itself specify the particular business, which hte landlord proposes to commence in the premises concerned, such a requirement is also necessary so that the other side can have an opportunity to meet and rebut it. A mere general and vague allegation that the landlord proposes to commence some unspecified business hardly enables the controller to form the basis. He must be told what type of business the landlord or a member of his family as the case may be proposes to commence in the premises. The express language of the enactment says that the atuthority under the Act has to be satisfied that the landlord bona fide proposes to commence a business in the premises.
It is not enough for him simply to be satisfied that the landlord proposes to do some or other business in the premises'.
11-12. In Nagnath v. Abdul Waheed (1981) 1 ApLJ (High Court) 62: (AIR 1981 NOC 138) Justice punnayya held that:-
'To satisfy the rent controller that the requirement is bona fide, the landlord should specifically plead in the eviction petition the nature of the business which he proposes to start and furnish all the particulars with reference to the ingredients of sec. 10 (3) (a) (iii) (b) and should state specifically as to why he has chosen to seek eviction of the tenant from the mulgi in question in preference to other mulgies belonging to him and all those facts should be averred in the eviction petition. Failure to aver all these facts judice to the defence of the tenant, as he has no opportunity to know and meet the case of the landlord'.
13. I had the occasion to deal with this provision in N. V. Naidu v. N. V. Satyanarayana 1982 APHC Notes 842 I held that:-
'As already held in C.R.P. No. 1248 of 1981 dated 24-9-81 the words bona fide proposes to commence business' are not any words of magic they have a defineite connotation and therefore very rightly the case law cited insists upon the particularisation of the business without being vague or equivocal at the time when the landlord seeks a direction for the eviction of the tenant within the meaning of sec. 10 (3) (a) (iii) (b) for it is this ingredient that in essence contributes towards the formation of satisfactory opinion by ht econtroller'.
14. In Vishnu prasad Bhatt v. K. Narayana Rao 1982 (1) APLJ 223: P.A. Choudary. J. Held that:-
'The proof of allegations contained in such an eviction petition with details or without details depends upon the evidence adduced in the case on oath and exposed to cross-examination. There is no legal support for that view that the eviction petition itself should be dismissed on the ground that it is vague and does not give particulars of the proposed business'.
15. Likewise, in L.L. Setty v. M.L. K. Setty (1982) (1) APLJ (High Court) 345 Ramachandra Raju J. Held that:
'It cannot be laid down as a general rule that an eviction petition filed under S. 10 (3) of the Act should be dismissed for the failure on the part of the landlord to specify the particular business which he proposed to commence each case has to be decided on its own facts if the evidence is conclusive on the bona fide requirements of the landlord and the tenant has not suffered any prejudice, it will not be right to refuse the relief of eviction merely on the ground that the business which the landlord proposes to commence was not specified in the petition for eviction'.
16. Since the majority that is three out of five judges have held that the particulars of proposed business and also the preference as to why the particular premises are required have to be brought out in the petition itself and any contravention will be fatal to the petitioner, I follow the majority view and reiterate what has already been stated that the particularisation of the business without being vague or equivocal must be stated in the petition itself and it is this ingredient that in essence contributes towards the formation of satisfactory opinion by the controller. Since this ingredient. Is woefully lacking in this petition the petition deserves to be dismissed.
17. Sri Anantha Babu the learned counsel for the landlord relied upon the various decisions namely sayad Mahammad v. Fatteh Muhammad (1895) ILR 22 cal 324, Manjushri v. B. L. Gupta, : 2SCR944 , Kunju Kesavan v. M. M. Philip. : 3SCR634 , Bhagwati v. Chandramaul, : 2SCR286 and Firm Srinivasram v. Mahabir prasad : 2SCR277 .
18. The conspectus of these cases is that the pleadings should not be construed strictly and if each side is fully alive as to the subject matter of the case and if no prejudice matter of the case and if no prejudice is caused to the other party the scrutiny should not strictly be made. All these decisions turn upon the provisions enacted in O. 6 R, 4 Civil Procedure Code and. Therefore the pronouncements made in that behalf have little or no assistance while adjudicating upon the provisions eancted in a special law in fact the provisions which have been enacted in sec. 10 (3) (a) (iii) (a) and sec. 10 (3) (a) (iii) (b) are special distinct and explicit. The legislature has been positive with regard to the aspect covered by sec. 10 (3) (a) (iii) (b) Where bona fide requirement for the proposed business must necessarily to be stated and established to the satisfaction of the controller and therefore in the light of these provisions, this Court has construed that the ingredients as laid down in the statutory provisions have to be complied with furnishing material as stated earlier which would otherwise be fatal to the petitioner itself. It is difficult to reconcile between the pleading and the evidence. There has been improvement and contradiction in the evidence In the evidence the petitioner himself has stated: 'He also applied for brandy licence and intends to improve business on fancy goods side and therefore purchased the buildings'. If that is so it is very hard to reconcile with the claim made in R. C. C. 3/69 where in it is stated in para III (g) that the building in which he is now doing business is insufficient and he is feeling difficulty to keep his stocks. It is hard to comprehend whether the premises are required for the new or old business no wonder the appellate Tribunal landed itself in a labyrinth when it framed the issue as under:-
'Point No. 2: Whether the finding of the learned Rent controller that the landlord bona fide required additional accommodation for his business is correct? The schedule buildings are abutting the main road near a tri-junction converging from vizianagaram, bheemunipatnam and visakapatnam. The landlord is admittedly doing business in medicines and he has obtained a licence for liquors. He also proposed to run business in fancy goods..................the type of business has not been revealed in the petition. The extention of the same business cannot be at two different places. He has been doing business in another premises at some distance from the schedule premises'.
19. After extracting the contention of the tenant as above, the Court held:
'The evidence that the landlord obtained the licence to sell liquors stands unrebutted......Though the landlord is having several buildings the choice is entirely his to choose whichever building is suitable for his business though medicines and fancy goods can be sold from the same shop, I am convinced that the liquors cannot be sold from the same shop with advantage.......This is not a question of additional accommodation. But this is a question of a ccommodation for running a business'.
20. Now from the above, it is quiteclear that the Tribunals below particularly the appellate Tribunal has misconstrued and therefore misapplied the provisions of the Act. The provisions regarding additional accommodation is made in sec. 10 (3) (c), but this provision has not been availed of either. In fact the requisition was under section 10 (3) (a) (iii) (a) the case also could not have been under S. 10 (3) (c) because it is applicable to a protion of the building which is tenanted to another and therefore it could not have been the case of additional accommodation because admittedly the schedule premises are away from the existing premises by about five or six shops as per the petitioner and therefore even the frame of the point as well as the issue are erroneous viewed from any angle, therefore the petitioner has miserably failed to bring out his case within the provisions enacted in section 10 (3) (a) (iii) (b) and therefore his case deserves to be dismissed on this ground as well.
21. The next point raised by the learned Advocate general is that it is too late in the day for the courts to say that it is the landlord's choice and the tenant has nothing to do with regard to the choice and it is for him to select any of the premises which he owns for the purpose of his business. For this he relied on Onkar Nath v. Vedvyas, : AIR1980SC1218 wherein the Supreme Court held (para 18):-
'It is common ground that there are three requirements to make out a cause of action for eviction under that provision and indeed this is apparent from a bare reading of the sub-section. In the present case the finding is to the effect that the landlord requires the residential building for his own occupation. But the legislation has taken care to insist upon two more conditions namely, (a) that the landlord is not occupying any other residential building in the area concerned and (b) that he has not vacated such a building without sufficient cause there is ot a scintilla of evidence nor indeed there is any averment in compliance with these latter conditions. The necessary consequence follows that not merely is there inadequacy of pleadings sufficient to make out of cause of action but total absence of proof of two vital requirements'.
22. He also relied upon M.M. Quasim v. Manohar Lal, : 3SCR367 wherein the Supreme Court held:
'Before turning to the next topic a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned Judge of the first appellate Court while upholding the claim of personal requirement of respondent 1 has observed as under:
'It is for the plaintiffs to decide whatever they think fit and proper It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs have got some more houses at Giridih.......the defendant appellant has also filed certified copy of judgment of one suit No. 47/43 which is Ex. D only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridhih I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs'.
This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Act in almost all states in the country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord .
When examining a case of personal requirement if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act'.
The appellate Tribunal held in its order as under:
'Though the landlord is having several buildings the choice is entirely his to choose whichever building is suitable for his business'.
Now it is equally erroneous on the part of the appellate Tribunal to have held that the choice is that of the landlord. The landlord would have to further establish by way of satisfactory evidence that he requires particular premises for some good reason as against the other premises which are available to him for eviction . Otherwise by merely asking he cannot re-take his premises.
23. The last contention raised by the learned counsel for landlord is that this Court may not interfere in the revision with the concurrent findings given by the Tribunals below. The language of S. 22 of the Rent Control Act is not in pari materia with S. 115 Civil Procedure Code S. 22 is wide enough and a decision which suffers from illegality, irregularity or impropriety is liable for interference by the High Court in revision Reliance is however placed upon sri Raja Lakshmy dyeing works v. Rangaswamy : AIR1980SC1253 . By the learned counsel for the respondent which reads as under( Para 3);
'Section 23 of the Tamil Nadu Buildings (lease and Rent Control) Act 1960. Enables any person aggrieved by an order passed by the controller to prefer an appeal to the appellate authority having jurisdiction S. 25 provides that the High Court may on the application of any person aggrieved by an order of the appellate authority call for and examine the record of appellate authority. To satisfy itsel as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if in any case, it appears to the High Court that any such decision or order should be modified annulled, reversed or remitted for reconsideration it may pass orders accordingly. The language of S. 25 is indeed very wide. But we must attach some significane to the circumstances that botht eh expressions 'Appeal' and revision' are employed in the statute. Quite obviously the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'Appeal'. In fact it has to be noticed that under Sec. 25 the High Court calls for and examines the record of the appellate authority in order ot satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself' under S. 25 appears to be that the power conferred on the High Court under S. 25 is essentially a power of superintendence. Therefore despite the wide language employed in S. 25 High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authoirty. The power conferred on the High Court under S. 25 of the Tamil nadu Buildings (lease and rent control) Act may not be as narrow as the revisional power of hte High Court under S. 115 civil P.c. But in the words of Untawalia, J in Dattopant Gopala Rao v. Vithalrao marutirao : AIR1975SC1111 'it is not wide enough to make the High Court a second Court of first appeal' We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional powers It must however be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising judisdiction under S. 25 of the Tamil Nadu buildings (lease and rEnt control) Act 1960. This appeal is therefore allowed with costs'.
24. In my undoubted view there is a taint of unreasonabless in the Judgment arrived at by the Tribunals below and if they are allowed to stand it will lead to miscarriage of justice. They not only failed to appreciate the provisions of the statute in the light of the decisions of this Court but also misconstrued the provisions and thereby arrived at wrong conclusions which are liable to be set aside.
25. In the circumstances, for the reasons stated above, I hold that the petitioner-landlord has not made out the case for eviction and the petition is not in compliance with the provisions enacted in S. 10 (3) (a) (iii) (b) of the Act.
26. In the result the orders under Revisions are set aside, the eviction petitions are dismissed and the revision petitions are allowed. No costs.
27. Revisions allowed.