* THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR + Civil Revision Petition No. 3332 of 2009 % Dated 21.12.2011 # Kunji Bai G. Chugani …Petitioner Vs. $ Fashions, rep. by Ram Moorjani, …Respondent ! Counsel for the Petitioner: Sri Venkataramana, representing Sri V. Ramchander Goud ^ Counsel for the Respondent: Sri Balchand < Gist : > Head Note: ? Cases Referred: 1. 1988(2) ALT 109 2. 1991(1) ALT 249 3. 2008(6) ALD 663 4. 1986(2) APLJ 327 5. AIR 1990 SC 1376 6. 1995(1) ALT 734 7. 1994 Supp (1) SCC 729 8. 1997(4) ALT 740 9. 1999(9) SCC 618 10. AIR 1988 SC 1060 11. 1995-SCC-Supp3-107 12. AIR 2001 SC 522 13. 2003 (9) SCC 151 14. 2002(10) SCC 665 15. AIR 2002 SC 2256 16. AIR 1999 SC 1503 17. 1997(3) ALT 459 18. AIR 1992 SC 700 19. (2005) 13 SCC 159 20. 2001(10) SCC 619 21. 2010(2) SCALE 414=AIR 2010 SC 1521 HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 3332 of 2009 Order: This Civil Revision Petition is directed against the order, dated 10.02.2009, passed by the Additional Chief Judge, City Small Causes Court, Hyderabad (Appellate Authority) in R.A.No.94 of 2008, whereby and whereunder, the Appellate Authority has set aside the orders of the Principal Rent Controller, Secunderabad, passed in R.C.No.137 of 2006, dated 27.03.2008. The parties hereinafter will be referred to as they are arrayed before the Principal Rent Controller for the sake of convenience. The petitioner is a landlady. Her simple case is that she is the owner of the shop bearing No.1-2-74 to 76, admeasuring about 1400 square feet, situated at Parklane, Secunderabad (hereinafter referred to as petition schedule shop). The respondent is her tenant and the agreed rent is Rs.900/- per month. The petitioner’s sons and husband are carrying on business under the name and style of “Ramesh Watch Company” from a tenanted shop bearing No.127 and 128 (old) corresponding to 1-6-55 (new), situated at Parklane, Secunderabad, and an eviction petition had been instituted against Ramesh Watch Company for its eviction from the said premises in R.C.No.140 of 2004 on the file of the Principal Rent Controller, at Secunderabad, and the said R.C. has been allowed on 31.03.2006 ordering the eviction of Ramesh Watch Company. As a result of eviction order passed against Ramesh Watch Company, the shop in the occupation of the respondent is urgently required by her for the purpose of her family biasness which is being carried on by her husband and sons and the requirement of petition schedule shop is, therefore, genuine and bona fide. She got issued a lawyer’s notice, dated 21.06.2006, to the respondent to vacate the premises and as the respondent gave a reply through his Advocate and raised untenable grounds, she filed R.C. No.137 of 2006. The respondent filed a counter affidavit admitting that he is the tenant of the petition schedule shop, but he denied that the petition schedule shop is required by the petitioner bona fidely for her business. His case is that this petition has been filed only for the purpose of evicting him and that the landlady owns several movable and immovable commercial properties in twin cities of Hyderabad and Secunderabad and the addresses of properties given by the respondent in the counter are as follows: 1. Premises bearing No.130, Parklane, Secunderabad, which is adjacent to the alleged business premises of Ramesh Watch Company, which is owned by the landlady for the last 15 years. 2. Commercial property in Plot No.3, admeasuring 10000 square feet consisting of ground + three floors, situated at Begumpet, opposite to Shopper’s Stop, Secunderabad, and the said premises is vacant. 3. Commercial property consisting of ground + three floors admeasuring 600 square feet and this property is also vacant. It is also the case of the respondent that there are other movable and immovable properties which are owned and possessed by the petitioner and her family members at P.G. Road, Secunderabad, and other places in Secunderabad which are more suitable for their business purpose. The landlady has suppressed all these facts. She is bound to disclose all these properties owned and possessed by her. The further case of the respondent is that the husband of the landlady approached the respondent and demanded a sum of Rs.5,00,000/- towards Pagidi (according to Sri Balchand, learned counsel appearing for the respondent, Pagidi means amount kept with the landlord as security), in the event of respondent wants to continue as a tenant in the said shop. It is also the case of the respondent that he has been carrying on his business since more than four decades and the entire family is serving out of the income derived from the business carried in the schedule premises and if he is evicted it will cause great hardship and loss to him. On behalf of the petitioner, the petitioner herself was examined as P.W.1 and her son was examined as P.W.2 and Exs.P-1 to P-6 were marked. On behalf of the respondent, the respondent himself was examined as R.W.1 and Exs.R-1 to R-11 were marked. The learned Rent Controller, having observed that an eviction order has been passed in R.C.No.140 of 2004 evicting the petitioner from a shop in which the landlady has been doing business and, therefore, her requirement is bona fide and that the said premises is only at a distance of 100 yards from the petition schedule shop and therefore the petition schedule premises appears to be more suitable to the landlady. Having referred to the judgment in MONINGI JAGANNADHAM VS. TANKALA LAKSHMI KANTHAMMA (1985 (1) ALT 509), wherein it was held that the landlady who has not disclosed that she had other smaller non-residential buildings, would not disentitle her for eviction of the tenant, allowed the RC. Being aggrieved by the same, the tenant carried the matter in appeal. The learned Appellate Authority observing that the landlady herself admitted in her cross-examination that her husband is getting rental income from residential as well as commercial premises and that there were talks between the landlady and the respondent for enhancement of rent and that her sons are doing business of Ramesh and Watch Company, at Park Lane, Secunderabad, and that her sons have been doing business in the premises shown in Exs.R-5, R-6, R-7 and R-9 and that the building shown in Ex.R-9 stands in the name of her son and Sadguru building stands in the name of her husband, came to the conclusion that the landlady is having several non- residential premises. The Appellate Authority has also taken into consideration the evidence of the landlady, wherein she admitted that the tenant did not have any other premises except the petition schedule shop. Referring to Ex.R-10, the Appellate Authority came to the conclusion that the properties are in the name of sons of the landlady and Ex.R-11 also shows that her sons are the owners of the premises therein. The Appellate Authority also came to the conclusion that since the landlady did not plead in her petition about the size and suitability of the premises and also failed to aver that she has no other non-residential premises in the suit and not suitable for the business of her sons, there is no need to consider the factors such as size, quality, suitability and convenience, etc. The Appellate Authority has distinguished the decision cited by the landlady in BOCHU RAMAKRISHNAIAH AND OTHERS VS. GOLLA VENKATA KOTESHWAR RAO AND OTHERS (2003 (2) ALD 517) and the unreported decision in C.R.P.No.6019 of 2005. Referring to the decision of this Court in MOHD. ABDUL REHMAN AND OTHERS VS. B. MANORAMA AND ANOTHER (2008 (4) ALD 702) and relying on the said decision and holding that the landlady has several residential and non-residential properties in twin cities, and further observing that the respondent proved the said fact, the appellate authority allowed the appeal and set aside the order of the Principal Rent Controller. Aggrieved by the same, the landlady filed the present revision petition. Sri Venkataramana, learned Senior Counsel for the landlady, submits that the sons of the landlady who are doing Watch Company business have to vacate the premises in view of the eviction order passed against them and that the landlady is aged about 83 years old and she does not own any other non-residential premises and that the premises now shown by the tenant in Exs.R4 to R9 and R10 are not in the name of the landlady and that she is not even joint owner of those premises and that Ex.R11 encumbrance certificate proves the same and that the burden lies on the tenant to prove that the landlady is having some other non-residential premises and that basing on the photographs showing the name board of the business no decision can be taken. It is also his submission that the Appellate Court failed to consider the above aspects. It is also his submission that certain admissions made by the respondent in his evidence towards eviction were not taken into consideration by the appellate authority. It is also his submission that the findings of the appellate authority are mere surmises and conjectures and the tenant failed to prove that the landlady herself owns a non-residential premises in the city. With reference to the claim of the additional evidence his submission is that there is no provision to receive the documents at this stage. Sri Balchand, learned counsel for the tenant, submits that additional evidence can be received even at the revisional stage. His main submission is that the landlady is guilty of suppression of facts and she did not refer to the other non-residential premises standing in the name of her husband and her sons. His main submission is that the landlady and her family members own several non-residential premises and that her husband got own business and children having separate business in their premises and more over they have taken a multi-storied building adjoining the suit premises on lease for 20 years and have sub-let the shops in that multi-storied building. It is also his submission that the husband of the landlady has his own business and that her sons are well settled in the business and that Section 10(3)(a) (iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, does not apply to the facts of the present case. The question of suitability, size etc., does not arise since the landlady does not whisper about the other non-residential premises already occupied by her husband, sons and their family members. It is also his submission that the sons of the landlady are not depending on her and they have got their independent business. The words used ‘for the purpose of business which he is carrying on, on the date of application’ does not apply since the landlady is not carrying on any business on the date of application. When she is seeking the eviction of tenant for the purpose of business of her sons, the other non-residential premises in possession of her sons should be taken into consideration and when they are holding other non-residential premises the question of evicting the tenant does not arise. It is also argued that the sons of the landlady have purchased the premises bearing No.1-6-53/248 and in view of the specific provision of Section 10(3)(a)(iii) of the Act, wherein no word such as other family members have been incorporated the decisions rendered in view of the specific words used in other enactments do not apply to the facts of the present case. It is also his submission that the general observations if any made by the Apex Court cannot be taken into consideration in view of the specific provision in the AP Act. It is submitted that the married sons and daughters cannot be treated as dependents. The decisions relied on by the learned counsel have been discussed in later paras. The points that arise for consideration are; 1. Whether the landlady who is in possession of several non-residential buildings can seek eviction of the tenant on the ground of bona fide requirement without any reference to the suitability and size of the building required? 2. Whether the petitioner can invoke Section 10(3)(a) (iii) of the Act in the circumstances of the case? 3. Whether the subsequent events can be taken into consideration? 4. Whether the matter is required to be remanded to enable the parties to lead further evidence? POINT NO.1: Learned counsel for the landlady placed reliance on B. Artho Thyadi (died) by LRs v. G. Kamaraju[1], wherein this Court while dealing with the dispute between landlord and tenant with reference to non-residential building observed as follows. “Section 10(3)(a)(iii) says that if the landlord requires a non-residential building, the Controller can put him in possession provided the landlord is not occupying a non- residential building in the city which is owned or to the permission of which he is entitled (a) for the purpose of business which he is carrying on, on the date of the application and (b) for the purpose of a business which he bona fide proposes to commence.” The question whether the landlord who is in possession of non- residential premises can seek eviction of his tenant came up for consideration in several decisions. The settled legal position appears to be where a landlord is already in occupation of a non-residential premises and when he wants to evict a tenant from another non- residential premises for expansion of his business or for starting a fresh business for his bona fide requirement which includes the requirement of his children or any other person dependant on him then the issues such as convenience, size, suitability, location of the non- residential premises already in possession of the landlord and the premises in the occupation of a tenant have to be compared. If the premises already in occupation of a landlord is not sufficient, suitable in its size, location for the purpose of expansion of his business or for starting a fresh business, then the landlord though he may be in possession of a non-residential premises can evict a tenant from another non-residential premises in which the tenant is doing business. But, however, the important question that arise for consideration in this revision is when a landlady is in possession of not only one non-residential premises, but several non-residential premises and when she wants to evict the tenant from a non- residential premises whether she can invoke Section 10(3)(a)(iii) of the Act. Another important aspect that arises for consideration is whether a landlady is required to plead and prove that she has been in possession of several non-residential premises and none of those non-residential premises are suitable for expansion of business which she is carrying on as on the date of the application or for commencing of a new business. Thus, as per Section 10(3)(a)(iii) of the Act, much stress has been given on the words the business which he is carrying on, on the date of the application. Of course, in this case, the sons of the landlady were carrying on business in one of the premises from which they are ordered to be evicted and therefore the requirement of the landlady comes under the first part i.e., for the purpose of business which she is carrying on, on the date of application, but however the fact remains that the landlady has to prove that she is not occupying any other non-residential building in the city. When a landlord seeks eviction of a tenant on the ground, that his sons or other family members require the non-residential premises in the occupation of a tenant, then in all fairness the other non-residential premises owned by the landlord and his sons or other family members for whose benefit the eviction of tenant is sought have to be taken into consideration. When we are extending the benefit of personal requirement and saying that requirement of sons and other family members of landlord is also the requirement of landlord, on the same analogy we have to treat the non-residential premises standing in the name of his sons and other family members as the non-residential premises held by the landlord. Therefore, again it has to be seen when the landlady in this case is in possession of several non-residential premises whether she can invoke Section 10(3)(a)(iii) of the Act. Section 10(3)(a)(iii) of the Act is as follows. Section 10(3)(a):- A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building- (i) in case it is a residential building- (a) if the landlord is not occupying a residential building of his own in the city, town or village concerned and he requires it for his own occupation; (b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead for his own occupation; (ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use and if he is not occupying any such 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; (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 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: Provided further that where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this clause- (i) in case he has obtained possession of a residential building, for possession of another residential building of his own; (ii) in case he has obtained possession of a non- residential building for possession of another non- residential building of his own…….” On behalf of the landlady reliance is placed on M/s Vijayalaxmi Printing Press v. N. Shankar[2]. In that case the landlord himself was a statutory tenant of a building belonging to a third party. It was argued that the landlord is disentitled to seek possession of the non- residential premises occupied by the tenant. The Apex Court in case between Padmanabha Setty v. Papiah Setty (AIR 1966 SC 1824) resolved the controversy and held that the landlord, who is only a statutory tenant, is not debarred from seeking possession of his own non-residential building. It is not incumbent on such a landlord to first vacate the non-residential premises in his occupation as a condition precedent for maintaining an eviction petition in respect of his own non-residential premises in the occupation of his tenant. The said principle has been followed by the Full Bench of this Court in M/s Vijayalaxmi Printing Press’s case (2 supra). Reliance is also placed by the learned counsel for the landlady on P. Lingamma v. P. Venugopal[3]. In that case, the landlords filed an eviction petition on the grounds of willful default and for bona fide requirement. The landlords case is that the second petitioner-landlord is carrying on business in a rented mulgi and requires the mulgi in possession of a tenant for his own purpose. In that case a plea was taken that the landlord is having adjacent premises which is recently let out. However, on evidence, it was found that the neighbouring mulgi has fallen to the share of his brother PW.2 and it is not owned by the landlord. With reference to the non-pleading in the eviction petition about the non-availability of non-residential premises this Court observed that the requirement of such pleading in the eviction petition would assume more importance in the event the tenant is able to show that the landlord does hold or is otherwise entitled to any other non- residential premises. A reference is made to the judgment of the Apex Court in Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah (AIR 1987 SC 406). In that case the Apex Court came to the conclusion that the landlords did not suppress any fact at the trial and disclosed the non-residential buildings owned by him but not in their occupation and that the Courts observed that the landlords have come forward with a clean and clear case with reasons as to why they choose the disputed shop room for the proposed business to be commenced by the landlord. It was further observed that it will be a futile exercise to remand the matter to the Rent Controller to allow the parties to amend the pleadings and to adduce further evidence. In that case it was also observed that the disputed shop room is centrally located in the heart of Guntur city in a business locality and it is the best place for commencement of readymade garment shop. Thus, on facts it was found that the landlord was not in possession of any other non-residential premises or that he was entitled to any other non- residential premises in that case. Each case has to be decided on its own facts and circumstances. Where in a case the landlord is in possession of several non-residential premises and is entitled for their possession and when he is seeking eviction of a tenant from a non-residential premises it appears that the landlord must plead that the other non- residential premises held by him are not suitable in size, location etc., for the business he proposes to start or for the purpose of a business which he is carrying on, on the date of application. Reliance is also placed on Mandalal Srikishan Malpani v. Ayodhya Devi Asaws[4]. On facts, it was found that the landlady has been living since a long time with her husband, husband’s brother, his wife and three children and that, therefore, the family of the landlady must be said to be consist of seven members. She purchased the building and sought eviction of the tenant on the ground of bona fide requirement and this Court observed as follows. “In case of a non-residential building owned by a Hindu joint family, the requirement of a member of the joint family would be the requirement of the landlord and the business being carried on or proposed to be carried on by a member of such family would satisfy the requirement of the clause. Similarly, where one or more of the several co-owners propose to commence a business, or require the premises for the purpose of a business which they are carrying on, the requirement of the clause would be satisfied. We must emphasize again that whether the business in question is that of the landlord or not is always a question of fact to be determined by the Court in each case in the light of the pleadings, and the evidence adduced by the parties. The burden, however, is upon the landlord to allege and prove all the necessary facts to satisfy the requirement of the said clause.” Therefore, even if there is a proposal to commence business by a member of family or by a co-owner such requirement would be the requirement of the landlord. Thus, there cannot be any doubt to say that the requirement of a member of joint family ie., son, daughter or by a co-owner or a dependent has to be deemed to be the requirement of the landlord. In the case on hand, the landlady became too old and her case is that she requires the premises for her family business i.e., for the purpose of business of her