1 Civil Revn. Appln. no. 184.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.184 OF 2009 Gautam S/o Kastursa Sawji, Age 65 years,Occupation Business R/o Supari Hanuman Road, Aurangabad. APPLICANT V E R S U S Babual S/O parashram Patel, Died Through his L.Rs. 1/i] Sau Vijaya W/o Harikiishan Tambakhuwala, Age Major Occupation Household, R/o Supari Hanuman Road, Aurangabad. 1/ii] Sau Kishori W/o Jeevanlal Patidar,Age Major Occupation Household R/o as above. 1/iii] Satish S/o Babulal Patel,Age Major Occupation Agril. R/o as above 1/iv] Vinod S/o Babulal Patel, Age Major Occupation retired R/o As above. 1/v] Pramod S/o Babulal Patel,Age Major Occupation Business, R/o C/o Patel Engineering & Fabricators E-52/B-122, MIDC, Chikalthana,Aurangabad. RESPONDENTS Mr. R.F.Totla,Advocate for Applicant Mr. Murar Deshpande,Advocate I/by Mr. R.C.Kulkarni,Advocate for respondent Nos 1(i,ii,iii,iv,v) 2 Civil Revn. Appln. no. 184.09 CORAM : A.V. NIRGUDE, J. DATED : 24TH FEBRUARY, 2010 ORAL JUDGMENT : . The parties agreed to make their submission in this revision finally at the stage of admission. 1] This revision takes exception to the concurrent Judgment of the Courts below and directing eviction of the Revision Petitioner from the suit shop. 2] The facts giving rise to this revision are as under- . The respondent/plaintiff was the owner and landlord of House situated at Supari Hanuman Road, Aurangabad. The applicant/defendant was tenant in occupation of the suit shop, on monthly rent of Rs.125/-per month. The respondent pleaded that he would require the shop for his personal use. He said, he had three sons, the youngest one by name Pramod was about 37 years old. He had passed the D.C. Electrical course, but could not secure the Government job. The respondent/plaintiff further said that since last one and half years Pramod was jobless and unemployed. The respondent/plaintiff further stated that he had sufficient fund and he want to engage his son Pramod in a business,by utilising the suit shop. With this pleading the respondent/plaintiff filed his petition for 3 Civil Revn. Appln. no. 184.09 eviction of the applicant. 3] The applicant opposed the petition stating inter-alia that he would not admit the averments of the plaint which are quoted above. 4] The learned Rent Controller, after framing issues and allowing the parties to lead the evidence, held that the respondent/plaintiff had succeeded in proving his case. Even, the learned Judge of the first Appellate Court dismissed the applicant's appeal. 5] Only point that raised in this revision is that the petition for eviction did not fall within four corners of the relevant provision. 6] In order to appreciate the submissions of the learned advocate appearing for the applicant, I quote the relevant provisions of The Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. 15) (1)A tenant shall not be evicted, whether in execution of a decree, or otherwise except in accordance with the provisions of this section (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered the rent due to him in respect of the house within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the 4 Civil Revn. Appln. no. 184.09 absence of any such agreement by the last day of the month next following that for which the rent is payable, or (ii) that the tenant has after the commencement of the Hyderabad House Rent Control Order of 1353-F or this Act without the written consent of the landlord. (a) transferred his right under the lease or sub-let the entire house or any portion thereof, if the lease does not confer on him any right to do so, or (b) used the house for the purpose other than that for which it was leased,or (iii) that the tenant has committed such acts of waste as are likely to impair materially the value or utility of the house, or (iv) that the tenant has been guilty of such acts and conduct as are a nuisance to the occupiers of other portions in the same house or of houses in the neighborhood, or (v)that the tenant has secured alternative house or ceased to occupy the house for continuous period of four months without reasonable cause, or (vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bonafide, the controller shall make and order directing the tenant to put the landlord in possession of the house, and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant’s default to pay or tender rent was not willful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord upto the date of such payment or tender. 3) (a) A landlord may subject to the provision of clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the house.- (i) in case it is a residential house, if the landlord requires it for his own occupation and if he is not 5 Civil Revn. Appln. no. 184.09 occupying a residential house of his own in the city, town or village concerned; (ii) in case it is a non-residential house which is used for the purpose of keeping a vehicle or adopted 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 for which he is entitled; (iii) in case it is any other non-residential house,if the landlord is not occupying for purpose of a business which he is carrying on, a non- residential house in the city town or village concerned which is his own or to the possession of which he is entitled; (iv) if the landlord desires to carryout essential repairs or alterations to the house which can not be made without the tenant vacating the house, bona fide requires the house for the purpose of building or re building or for making substantial additions which can not be made without the tenant vacating the house: Provided that a person who become landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered: Provided further that where a landlord has obtained possession of a house under this clause,he shall not be entitled to apply again under this clause- (i)in case he has obtained possession of a residential house, for possession of another residential house of his own, (ii) in case he has obtained possession of a non- residential house of his own for possession of another non-residential house: Provided further that where a landlord has obtained possession of a house under sub-clause (iv),he shall on the completion of the work of repairs alterations, building, re-building, or making additions give the tenant the first preference for occupying the house on such terms as may be settled by the Controller. (b) Where the landlord of a house, whether 6 Civil Revn. Appln. no. 184.09 residential or non-residential is a religious charitable, educational, or other public institution, it may,if the house is required for the purposes of the institution, apply to the Controller,subject to the provisions of clause(d), for an order directing the tenant to put the institution in possession of the house; (c) A landlord who is occupying only a part of house whether residential or non-residential, may, notwithstanding anything contained 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 house to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be; (d)Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period; (e)The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the house on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that, in the case of an application under clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord: Provided further that the Controller may give the tenant a reasonable time for putting the landlord in possession of the house and may extend such time so as not to exceed three months in the aggregate. 4) No order for eviction shall be passed under sub- section (3)- (i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section, unless the landlord is himself engaged in any employment or class of employment 7 Civil Revn. Appln. no. 184.09 which has been so notified; or (ii) in respect of any house which has been let for use as an educational institution and is actually being used as such, provided that the institution has been recognised by the Government or any such authority empowered by them in this behalf, so long as such recognition continues. 5) (a) Where a landlord who has obtained possession of a building in pursuance of an order under sub- section (3)does not himself occupy it within one month of the date of obtaining possession, or having so occupied it, vacates it without reasonable cause within six months of such date,the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to the possession of the house and the Controller shall make an order accordingly, notwithstanding anything contained in this Act. (b)Where a tenant is entitled to apply for possession under clause (a) fails to do so within one month, from the date on which the right to make the application accrued to him the Controller shall have power to treat it as a house having fallen vacant and to proceed under [section 4] 6) Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding fifty rupees be paid by such landlord to that tenant. 7) Where an application under sub-section (2) or sub- section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provisions of this Act, be deemed to continue on the same terms and conditions as before and shall not be terminable by a landlord except on one or more of the grounds mentioned in sub-section (2)or sub- section (3). 8) Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall except, with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant. 8 Civil Revn. Appln. no. 184.09 . On perusal of this section, it is clear that an application for eviction in a case of this nature could have been filed only under section 15(3)(a)(iii). There is apparently no other provision which would help the landlord in seeking eviction of his tenant, who is occupying a 'non- residential house for the purpose of business' (which could be a shop, like the suit premises). It is, however, clear that the plaintiff-landlord would not only prove his case under sub-clause (iii) of clause (a), he has to prove his case as required by clause (e) of the sub-clause (iii). In other word, the landlord has to prove and satisfy the Rent Controller that his claim is bonafide. 7] The learned Advocate appearing for the applicant invited my attention to clause (iii), in particular words "which he is carrying on". He asserted that, these words presuppose that the landlord had a business since prior to filing of the petition. He asserted further that looking to the pleadings of the applicant, it is apparent that the respondent/landlord did not plead that he or his son Pramod had preexisting business on the date of filing of the petition. I am in complete agreement with this submission. The pleading does not indicate that his son had already started a business or that the landlord himself had some business, which the youngest son was carrying on etc. For the purpose of elaborating this, I have 9 Civil Revn. Appln. no. 184.09 purposely narrated the pleadings in the earlier part of the judgment. 8] As against this, the learned Counsel appearing for the respondent asserted that the applicant did not specifically plead in the written statement that the respondent-landlord or his son Pramod did not have preexisting business on the date of petition. He said, in view of this peculiar pleadings of the parties, if this point was never discussed at the trial stage, it would be improper to deal with such question at revisional stage. He in the alternative also argued that, during the course of recording the evidence ample material has come on record to show that the landlord's youngest son Pramod had preexisting business. . He pointed out that the applicant during cross examination did not seriously challenge this part of the evidence. He lastly contended that what is stated in the evidence was not needed to be stated in the pleading. In other word, he said the evidence is not required to be pleaded. True, the evidence is not required to be pleaded, but the pleadings must be made the basis of evidence, which would be led at the time of recording the evidence. In this case, if basic and essential facts required to be pleaded were not pleaded, then no amount of evidence to cover up such lapse would cure the defect in the pleading and in the 10 Civil Revn. Appln. no. 184.09 case. 9] The question is whether this defect is fatal to the petition. The answer to this question is in the affirmative. In this regard the learned Advocate appearing for the applicant placed reliance on the recent judgment of our High Court in Civil Revision Application No. 33 of 2009. Incidentally, this judgment is delivered against the present respondent-landlord, in his different eviction proceeding, which he started against another tenant occupying another shop, which is situated adjacent to the suit shop. . In that case, the respondent-landlord pleaded that he required the shop, occupied by the said tenant bonafide, because his grand-son was about to become Lawyer and in order to start his practice he would require the said shop. This Court held that since business or profession was not in existence on the date of petition, it would not be fall within four corners of sub-clause(iii) of clause 3(a) of Section 15 of Hyderabad Rent Act. This Court while deciding the said revision placed heavy reliance on the earlier judgment of our High Court in the case of Shantabai alias Jadhavbai W/o Keshrimal Kabra Vs. Modonlal S/o Mansukhlal Kabra and another, reported in 1977 ILR, Bombay Series 1334. 10] This judgment was Division Bench's Judgment, 11 Civil Revn. Appln. no. 184.09 and Division Bench held that- "The landlord must show that he was carrying on some business in presenti,for which he did not have any accommodation by way of non- residential premises available in his own right. That might happen when, for instance, the landlord is doing his business at his place of residence,or in non-residential premises of which he is merely in permissive occupation and to the possession of which he is not entitled as of right." The Division Bench rejected the argument that the cases in which the landlord proposes to start a new business would also be covered by the said provision. In view of this the revision should succeed. 11] The learned Advocate appearing for the respondent states that his case need not fall within four corners of sub-clause (iii) of sub- section 3(a). He said, the landlord would independently prove his case under sub-clause (e) of sub-section 3. On plain reading of sub-section 3, it is clear that, this argument is devoid of merit. Sub-clause (e) clearly lays down additional rules which should be utilised while dealing with the cases fall under clause (a), (b) and (c). The landlord may apply for eviction of his tenant under the provision of clause (a), Clause (b), clause (c) and clause (d). In such cases, the Rent Controller must be satisfied that, the claim of the landlord is bonafide. In addition to this, when the claim of landlord is made under clause (c), the Controller must be satisfied that the 12 Civil Revn. Appln. no. 184.09 hardship that would be caused to the tenant by evicting him would outweigh advantage to the landlord. So, taking into account arrangement of the provisions in this section, the submission of the learned counsel appearing for the respondent can not be accepted. 12] In view of this revision would succeed. The Judgment of the Court below stands set aside. The application seeking eviction stands rejected. Sd/- (A.V. NIRGUDE, J.) MTK/ok