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Vishnu Prasad Bhatt Vs. K. Narayan Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 3597 of 1981
Judge
Reported inAIR1982AP375
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 10, 10(3) and 12
AppellantVishnu Prasad Bhatt
RespondentK. Narayan Rao and ors.
Appellant AdvocateR. Venugopal Reddy, Adv.
Respondent AdvocateT. Veerabhadrayya, Adv.
Excerpt:
.....is not necessary if nature of business is understood by everyone - held, landlord requires premises bona fide for running his existing or proposed business. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled..........himself upon the words 'for the purpose of a business which, in the opinion of the controller the landlord bona fide proposes to commence' occurring in sec. 10 (3) (a) (iii) (b) of the act. from that language the learned judge inferred, if i may say so, rightly, that the controller must be satisfied that the landlord requires the premises for the purposes of a business which he bona fide proposes to commence. but the learned judge went further and observed: 'a mere general and vague allegation contained in the eviction petition that the landlord proposes to commence some unspecified business hardly enables the controller to form the opinion. 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.....
Judgment:
ORDER

1. This revision petition is by a tenant under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. While the building was in the ownership of the previous owner and possession of some six tenants including the revision petitioner, the present twenty-four respondents who were the eviction petitioners purchased it under twenty-four separate sale-deeds. By the date of purchase there were six tenants in the suit premises. After purchase, two of the tenants voluntarily relinquished their possession. From the remaining tenants the landlords demanded vacant possession of the building, but the tenants refused to vacate. There were suit notices and reply notices, but they were to no purpose. The landlords, seeking eviction of the remaining four tenants, filed before the Rent Controller, four separate eviction petitions. Originally the first five respondents to this revision petition alone filed those eviction petitions. On the objection of the tenants that five owners cannot sue for the twenty-four owners, petitioners 6 to 24 had been added as eviction petitioners. In those four petitions common evidence was recorded and P. W. 1 was examined on behalf of the landlords. On behalf of the tenants some seven witnesses were examined. The eviction petitions were allowed on 24th March, 1980. Thereafter one tenant vacated the building and the remaining three tenants appealed against the orders of eviction. The appellate Court, after hearing the appellants and the respondents, dismissed those three appeals on 24th August, 1981. Two of those three appellants, accepting their defeat had vacated the building. But the present revision petitioner pursued the matter by filing this revision petition.

2. The eviction petitions sought the eviction of the tenants on three grounds: (1) the building was required for running the existing businesses of landlords which were being run in rented buildings; (2) the building was required for starting new businesses of the landlords and (3) the building was required for effecting repairs and modifications.

3. To the eviction petitions, based upon the above grounds, the main defence of the tenants was that the institution of the eviction proceedings was not bona fide. The tenants alleged that the landlords asked them to pay enhanced rent which was refused by them. Thus, have failed to secure enhanced rent, the tenants alleged, the landlords had filed these applications for eviction.

4. The trial Court allowed the eviction petitions believing the version of the landlords on all the three grounds. The appellate Court confirmed those findings. There is ample evidence to support the findings of the Courts below on all the three grounds. It is the evidence of RW. 4 himself that all the eviction petitioners were carrying on their existing businesses in rented buildings. It is also in the evidence of RW. 4 that the eviction petitioners belonged to a trading community. There was evidence to show that the twenty-four eviction petitioners who had purchased the building under separate sale-deeds did not divide the building by metes and bounds. No argument is, therefore, available for the tenant-revision petitioner in this Court to contend that the concurrent findings were vitiated on the ground of no evidence. In fact, as observed above, the defence of the tenants to the eviction petitions was that the landlords resorted to eviction proceedings in order to secure enhanced rent. The main part of the judgment of the trial Court, therefore, considered that question and held that the tenants did not make out that case.

5. It is now settled by the judgment of the Supreme Court reported in Sri Raja Lakshmi Dyeing Works v. Rangaswamy, : AIR1980SC1253 that : '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 jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960'. That ruling of the Supreme Court given under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act would apply with equal force to our Act which is substantially the same. It follows, therefore, that the above findings of fact cannot be disturbed in this revision.

6. But Shri Venugopal Reddy argued that the eviction petitions filed by the landlords ought to have been dismissed on the ground that the eviction petition did not contain particulars and details regarding the business which the landlords proposed to commence in the premises concerned. He said that an eviction petition filed on the basis of Section 10 (3) (a) and (b0 of the a. P. Buildings (Lease, Rent and Eviction) Control Act must specify the particulars of the existing business or proposed business for the running of which the landlords require the building in question and as the eviction petition filed in this case has not given any details of the proposed or existing business this revision petition filed by the tenant should be allowed and the eviction petition should be dismissed.

7. There is no doubt whatsoever that the eviction petition filed by the landlords in this case does not specify the nature of the business nor does it give much details about the business. In para 4 of the eviction petition the landlords pleaded:

'The respondent is fully aware of the fact that all the petitioners are business people belonging to the trading community. The petition scheduled building is non-residential in its character. The petitioners purchased the premises for the purpose of their personal occupation, i. E., to carry on their business in the entire building including the scheduled building under the occupation of the respondent. The petitioners have not been in occupation of any non-residential building of their own for the purpose of the business, which they have been carrying on. Thus the petitioners intend to occupy the scheduled premises along with the other portions for their personal occupation bona fide and in good faith after partitioning the same among themselves and carrying out the necessary modifications and alterations and improvements'.

It is clear that the pleading of the landlords regarding their requirement of suit premises to run the existing business or future business is just bare and without any details. A judgment of Jeevan Reddy, J. reported in Ramanjaneyulu v. Venkata Subbamma, (1980) 2 Andh LT 315 at p. 317 laid down that 'a general averment that I want to do business in the premises, can never be sufficient, and no Controller can reasonably say that he was satisfied about the bona fides of the landlord's requirement on the basis of such a general, vague allegation. In the light of the specific language of the enactment, it must be held that the petition for eviction should itself specify the particular business, which the landlord proposes to commence in the premises concerned. Such a requirement is also necessary so that the other side has an opportunity to meet and rebut it'. I agree that the above judgment of Jeevan Reddy, J. fully supports the contention of the learned counsel for the revision petitioner not only in relation to the proposed business but also in relation to the existing business. If law requires specification and particularisation in case of a proposed business, as the judgment of Jeevan Reddy, J. holds it does not appear tome to be logical to hold that that law does not apply and does not require such specification and particularisation in the case of an existing business. I, therefore, take the view that the judgment of Jeevan Reddy, J., though given on the facts of that case in relation to the proposed business would apply equally in relation to an existing business and would fully support the contention of the revision petitioner in this case.

In Ramajaneyulu v. Venkata Subbamma (supra), the landlady filed an eviction petition on the ground that she wants the suit premises for starting a business by her son. Accepting this case of the landlady the Rent Controller and the appellate authority in that case ordered eviction.

But in a revision petition filed by the tenant, Jeevan Rdddy, J, reversed the order of eviction passed by the Courts below on the ground that the petition for eviction did not specify the particular business which the landlord proposed to commence in the premises concerned. In support of his conclusion the learned Judge based himself upon the words 'for the purpose of a business which, in the opinion of the Controller the landlord bona fide proposes to commence' occurring in Sec. 10 (3) (a) (iii) (b) of the Act. From that language the learned Judge inferred, if I may say so, rightly, that the Controller must be satisfied that the landlord requires the premises for the purposes of a business which he bona fide proposes to commence. But the learned Judge went further and observed: 'A mere general and vague allegation contained in the eviction petition that the landlord proposes to commence some unspecified business hardly enables the Controller to form the opinion. 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 Controller will then see whether, having regard to the circumstances of the landlord, the type of proposed business, and the location and type of the premises concerned, the proposal is bona fide or not'.

With respect, I find two strains of thought, one relating to law of pleading and another relating to law of proof are inextricably mixed up and are running through these observations. Words such as mere general and vague allegation contained in eviction petition or only relevant to pleading, the words such as............the Controller to form opinion pertain to rule of proof. Both rules are clearly different. The language contained in Section 10 (3) (a) (iii) (b) of the Act requires the Rent Controller to form an opinion that the proposal of the landlord to commence the business is bona fide. This is a rule relating to proof. The section does not say what the petitioner should plead. In other words the Act does not lay down any rule of pleading. I am, therefore, unable to accept as correct the learned Judge's conclusion to the effect that the eviction petition should contain the details regarding business as following from the right premises that the Rent Controller should be satisfied about the bona fides of the landlord. As said above one relates to pleading and another relates to proof. They are two distinct concepts. In saying that 'no Controller can reasonably say that he was satisfied about the bona fides of the landlord's requirement on the basis of such a general vague allegation' the learned Judge is merely confining himself to the pleading and omitting to take into account the evidence produced in the case. The general allegation of the landlord that the bona fide wants to do business in the premises whether supported by details or not will be held by the Rent Controller to have been proved or not to have been proved not on the basis of the averments in the pleading, but on the basis of the evidence adduced by the landlord and other materials and probabilities in the case. To decide the question whether the landlord bona fide proposes to commence business or not, no particular form of pleading is required by any provision of law. In the absence of such a legal provision I am unable to agree with the learned Judge in holding that the eviction petition itself should specify the particular business which the landlord proposes to commence in the premises concerned with penality of dismissal added.

I am equally unable to agree with the learned Judge that the language of S. 10 (3) (a) (iii) of the Act requires specification of the particular business which the landlord proposes to commence in the premises concerned. On the other hand I find no language whatsoever in that section relating to the form of pleading at all. As the judgment, in my opinion, had not drawn the distinction between pleading and proof and had not noted the fact that Section 10 (3) (a) (iii) dealt with only the question of proof and not with pleading. I regret my inability to agree with the learned Judge. I accordingly reject the argument of the tenant based upon that judgment. This judgment of Jeevan Reddy, J. was followed in Naganath v. Abdul Waheed, (1981) 1 APLJ (HC) 62 : (AIR 1981 NOC 138) by Punnayya, J., There also the orders of eviction passed by the Courts below were set aside by this Court under its revisional jurisdiction on the ground that the eviction petition did not contain the particulars of the proposed business. For the reasons which I have elaborated above I express my regret and inability to agree with these judgments. In fact these two judgments, in my opinion, lay down a legal principle to the effect that unless the eviction petition under Section 10 (3) (a) (iii) (b) of the Act specifies the details of the proposed business the Rent Controller cannot satisfy himself, though there might be clear and cogent evidence let in on behalf of the landlord in a particular case. This is clearly laying down a rule of pleading and adding one more ground on which an eviction petition should be dismissed. The Rent Control Act strikes a statutory balance between the competing claims of the landlord to own and enjoy his property and the statutory right of the tenant not to be evicted except for statutory reasons. The Rent Control Act permits eviction of the tenant on the basis of proof of certain facts one of which is that the landlord requires the premises for running his proposed or existing business. No doubt the law requires the whole action for eviction to be initiated by an eviction petition. But law does not lay down any particular form of pleading. 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. The above two judgments by holding that the eviction petition itself should be dismissed on the ground that it is vague and does not give particulars, prevent the landlord from proving his allegation that he proposes to do a business. Clearly I do not find any legal support for that view. O. 6, R. 2 of C.P. C. forbids evidence being pleaded. Law of pleading is part of the law of procedure. Its principal aim is to bring the contending parties to an issue. I cannot, therefore, find any justification to make a decision in a particular case to turn upon the form of pleading.

8. For all the aforesaid reasons I am unable to accept the first contention of the revision-petitioner in this case.

9. It is one thing to say that the Rent Controller has arrived at the requisite satisfaction wrongly and without evidentiary basis. Such a conclusion to be arrived at must take an overall view of the evidence on record. But such a conclusion cannot have anything to do with the question of the particular form and context of pleading. It is another thing to say that an eviction petition should fail because of its failure to give details of proposed business. The latter rule for its application looks not to the evidence but first to the eviction petition. In this case it is admitted by R. W. 4 that the petitioners are business people and they are running their business. I find no rebuttal evidence on the side of the tenant to doubt the bona fide requirement of the landlords to start a new business. It is true that neither the eviction petition, nor the evidence of P. W. 1 nor that of R. W. 2 specify the nature of the business. This is because of the reason that everybody in the case understood the nature of the business that is being run by the petitioners. If the tenants have challenged the bona fides of the landlord on this ground by cross-examining the evidence of P. W. 1 the tenants probably could have shown that the landlord's claim was not bona fide. But then the landlords would have failed on the basis of evidence and its application and not on the basis of pleadings. The Rent Controller took note of all the circumstances and the evidence on record in holding that the landlords required the building bona fide. But the two judgments above referred to would, if applied to this case, have set aside the orders of eviction not for want of evidence but for reason of bad pleading. I cannot agree with that because there is no statutory support for such a rule. After all pleading is a matter of procedure. Being a matter of procedure like all procedural objections that have not been taken by the opposite party at the earliest point of time should be deemed to have been waived. I also hold that there is no procedural Code which requires any such specification of details. I cannot even conceive of any injustice being caused to the tenant because the burden of proving that the landlord requires the building bona fide rests heavily upon him. Such positive evidence is always subject to the cross-examination by the tenants. In these circumstances I regret my inability to agree with the learned Judges and accordingly overrule the main objection of the learned counsel for the tenant.

10. Then it is argued by Shri Venugopal Reddy that the relief under Ss. 10 and 12 should not have been clubbed together because they are mutually incompatible. I do not see how they can mutually be incompatible. In any case where the Court has granted relief under s. 10 holding that the landlord requires the premises bona fide for running his existing business or proposed business it must be held that S. 12 does not apply and the evicted tenant would not have the benefit of that section.

11. The last and the final argument of the tenant that the Appellate Curt did not properly consider his case appears to me to be correct. The learned Appellate Judge did not refer to any piece of evidence. I think he ought to have done that. But in the facts and circumstances of this case and on the state of evidence on record I do not think that it would be profitable to set aside the order of the appellate Court. The categorical evidence of R. W. 4 in his case is sufficient to allow the eviction petition. I, therefore, reject this argument of the tenant.

12. The learned counsel said that there should have been twenty-four separate petitions filed against his client. This argument was never raised in the Courts below. Shri Veerabhadriah said across-the-bar, that this point was the subject matter of a C.R.P. earlier filed in this Court and it was decided against the tenants.

13. The Civil Revision Petition is, accordingly, dismissed with costs. Two months' time is granted from today for vacating the premises.

14. Petition dismissed.


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