THE HON’BLE SRI JUSTICE VILAS AFZULPURKAR CIVIL REVISION PETITION No.4909 of 2008 Dated 19th July, 2011 Between: M.Anjaiah …Petitioner And M/s.Fashion Electric Dry Cleaners …Respondent The Court made the following: ORDER: This revision is by the landlord, whose application for eviction of respondent - tenant (M/s. Fashion Electric Dry Cleaners, represented by its Proprietor) was dismissed by the lower appellate Court by setting aside the eviction order passed by the Rent Controller. The facts of the case, in brief, are as follows: The petitioner, who is the landlord, filed R.C.No.217 of 2006 on 29.12.2006 seeking eviction of the respondent - tenant on the ground of bona fide personal requirement by stating that his younger son - Mr. M.A.Sai Kumar, who is a practising Advocate in the twin cities, intends to set up legal practice in the scheduled premises. It was also averred that the petitioner - landlord had issued a legal notice dated 22.11.2006, which was served on the respondent – tenant on 25.11.2006, but as there was no response, eviction petition (R.C.) was filed. It was also averred in para 6 of the affidavit filed in support of the R.C. that the petitioner – landlord bona fide requires the scheduled premises as it is convenient and more suitable for setting up a legal office. The respondent - tenant filed a counter stating that he has been a tenant paying monthly rent of Rs.950/- and that originally the premises was let out to his father under an oral tenancy and after him, the respondent - tenant is continuing the tenancy. It was also stated that since he was not in good terms with the petitioner - landlord, he had filed R.C.No.273 of 2000 under Section 8(5) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 for depositing rents in the Court. He denied the personal requirement as pleaded by the petitioner – landlord and stated that the petitioner - landlord owns 14 non-residential premises nearby the scheduled premises and that some of them are let out to tenants and some other are lying vacant. He also alleged that there is suppression on the part of the petitioner – landlord in failing to disclose all his non-residential properties and as such the requirement is neither bona fide nor urgent as some of the mulgies, which are lying vacant, are not utilised for the purpose for which eviction is sought. During the course of trial before the learned Rent Controller, the petitioner – landlord examined himself as P.W.1 and marked office copy of legal notice dated 22.11.2006 as Ex.P-1, postal acknowledgement as Ex.P-2 and the certificate of practice issued by the Bar Association as Ex.P-3, which was marked through his son – P.W.2, who was examined to establish his requirement. The respondent – tenant examined himself as R.W.1 and no documents were marked on his behalf. Thereafter, the respondent – tenant sought and obtained orders permitting the amendment of the counter on 07.11.2007 by inserting para 9(a) and thereby the following further averments were made by the respondent – tenant in his counter that during the pendency of the R.C. mulgi bearing No.6-4-50/G fell vacant on 19.10.2007 and it was let out to one Yadagiri at the rate of Rs.3,000/- per month and that similarly, another mulgi bearing No.6-4-50/C, which was in possession of an internet café, was let out to Asian Glass Centre. These additional pleas were replied to by the petitioner - landlord by way of rejoinder stating that all the allegations made in the amended para are incorrect and that mulgi No.50/G fell vacant in the first week of August, 2007 at the request of the petitioner – landlord for extension of his second son’s welding business on the rear side of the above mulgi and accordingly his second son has occupied the same. It was also stated that the said mulgi was only 100 sq.ft and not sufficient for the legal office intended to be established by P.W.2, whereas the scheduled premises is 300 sq.ft and more suitable and convenient for the proposed legal office of P.W.2. The amended pleadings form part of the record and were considered by the learned Rent Controller. In the light of the evidence on record, the learned Rent Controller found that except his own oral evidence as R.W.1, the respondent – tenant has not produced any other evidence in support of his pleas and that he has not been able to displace the requirement pleaded by the petitioner - landlord by any acceptable evidence and while coming to the said conclusion the learned Rent Controller also relied upon the specific averment of the petitioner – landlord that the mulgi bearing No.50/G was not let out to any tenant and it is occupied by his second son and consequently, having satisfied of the bona fide personal requirement pleaded by the petitioner – landlord, eviction was ordered. On appeal by the respondent - tenant, the lower appellate Court has reversed the eviction order primarily on two grounds. One, the lower appellate Court was of the view that the petitioner – landlord ought to have disclosed that he owns 14 mulgies including the scheduled premises and he ought to have explained why he is seeking scheduled premises for the purpose of personal requirement of his son. The second ground which weighed with the lower appellate Court was that the petitioner – landlord as P.W.1 himself in his cross examination admitted that mulgi bearing No.50/C, wherein internet café was being run fell vacant after the issuance of legal notice and before filing of the R.C. The said circumstances, according to the lower appellate Court were extremely crucial to determine whether there were any bona fides in the request of the petitioner – landlord and on finding that the said premises bearing No.50/C having fallen vacant and another premises bearing No.50/G also admittedly fallen vacant during the pendency of the R.C., the bona fide requirement was held not proved. Consequently, it dismissed the eviction petition. Hence, this revision by the petitioner - landlord. Heard the learned counsel for the petitioner – landlord and the learned counsel for the respondent – tenant. While the learned counsel for the petitioner – landlord has reiterated that the personal requirement was not shown to be mala fide and the fact that the petitioner -landlord’s son is in legal profession and requires the office was neither disputed by the respondent – tenant nor both the Courts below disbelieved the said aspect. Further, the learned counsel stated that while the R.C. was filed on 29.12.2006, there is no evidence on record to show that the premises No.50/C fell vacant before that and further, the other premises No.50/G admittedly fell vacant after August, 2007 and was occupied by the second son of the petitioner - landlord. The said other mulgi being only 100 sq. ft., whereas the scheduled mulgi being 300 sq.ft is also not disputed. The learned counsel, therefore, stated that the grounds on which the lower appellate Court reversed the eviction order are not substantiated from the facts. The learned counsel also stated that though the respondent – tenant amended the counter after the evidence was closed, subsequent to the amendment, the respondent - tenant was not examined in support of any of the amended averments and as such the averments in the amended counter cannot be held to have been established. The learned counsel pointed out that neither there was any reply to the notice prior to the R.C. nor there is any denial in the counter filed initially by the respondent – tenant with respect to the other mulgies of the petitioner – land lord and its occupation. The learned counsel while placing upon the decision of the Hon’ble Supreme Court in Lingala Kiondala Rao vs. Vootukkuri Narayana Rao[1], which in turn relied upon the ratio laid down in D.Devaji vs. K.Sudarshana Rao[2] as well as Boorgu Jagadeshwaraiah and sons vs. Pushpa Trading Co.,[3] contended that even if the landlord had more than one non-residential premises, he is entitled to seek possession of one non- residential premises, provided he explained the suitability thereof. The learned counsel for the respondent – tenant, on the other hand, pointed out that if really the requirement of the petitioner - landlord was bona fide, he would have disclosed in the eviction petition that he owns 14 mulgies including the scheduled premises and could have pleaded suitability of the scheduled premises while seeking eviction, but the eviction petition suppresses all the information regarding the other mulgies and therefore, the ground of suppression of material fact is made out. The learned counsel also stated that even after the rejoinder filed to the amended counter averments of the respondent – tenant, the allegation with regard to the premises No.50/C is uncontroverted by the petitioner - landlord and deemed to have been accepted. Thirdly, he contends that the second son of the petitioner - landlord - Rajesh was not examined, in spite of the fact that all the material questions put to P.Ws.1 and 2 were answered by them stating that the second son is incharage and he alone knows everything. The learned counsel, therefore, states that the present case shows lack of bona fides and relied upon the following decisions of this Court: - Omkar Tele vs. Mohd. Abdul Rahman[4], particularly para 41, which states that when bona fide requirement is pleaded, occupation of several mulgies by the landlord was material fact which shall be taken into account while considering the bona fides of the landlord’s requirement. To the same aspect, another decision of this Court in Ali Bin Mohammed (died) by LRs. Vs. Khaja Moinuddin (died) by LRs.[5] as well as Sri Venkateswara Electrical Stores and others vs. Rajender Singh[6] and Jyothi Automobiles, Hyderabad and others vs. Khet Bai and another[7] are relied upon. The learned counsel, therefore, submits that the view taken by the lower appellate Court is clearly justified on the facts and circumstances of the case and it warrants no interference in the revisional jurisdiction of this Court. I have examined the record and I have seen the eviction petition, counter, rejoinder as well as the evidence of P.Ws.1 and 2 and R.W.1. At the outset, the pleadings in the eviction petition state the personal requirement of the son of the petitioner - landlord and that the scheduled premises is convenient and more suitable for setting up legal office. The counter filed to the eviction petition does not state about the several other mulgies and whether they are in occupation of tenants or vacant. Para 9 of the counter contains general statement that there are 14 mulgies of the petitioner – landlord and some of them are let out to the tenants and some other are lying vacant. However, till the amendment to para 9 was carried out after closure of the evidence, neither there is any pleading with regard to specific mulgi being vacant or let out. Only in the amended pleadings in the counter, the respondent - tenant has taken specific plea with regard to premises Nos.50/G and 50/C. So far as 50/G is concerned, the petitioner – landlord, who examined himself as P.W.1, recalled himself after the amendment and stated that the premises No.50/G was vacated by one Rama Lingaiah, but was not let out to one Yadagiri as alleged. In the rejoinder filed to the amended counter, it was specifically averred that the second son of the petitioner –landlord, who was doing welding business at the back side of the said mulgi required the said mulgi for extension of his business, who has accordingly occupied the same after its vacation by Rama Lingaiah. Most importantly, it was also stated in the rejoinder that the said mulgi was admeasuring 100 sq. ft., which was not sufficient and suitable for the proposed requirement, whereas the suit premises is 300 sq. ft, which is more suitable and sufficient. Therefore, to the extent of 50/G, the petitioner - landlord has sufficiently explained the circumstances and the same does not affect requirement pleaded. To the extent of other premises bearing No.50/C, the lower appellate Court at para 13 of its judgment has proceeded to find as if the petitioner – landlord has established that the said premises fell vacant after the legal notice and before filing of the eviction petition. I have verified the cross examination of P.W.1 and what is actually stated by P.W.1 in his cross examination on 19.12.2007 is as follows: “…It is not true to state that the tenant running internet café in mulgi No.6-4-50/C was vacated after issuance of legal notice to the respondent….” The denial by the petitioner - landlord is unfortunately understood as admission by the petitioner - landlord by the lower appellate Court. The error committed by the lower appellate Court in appreciation of evidence is, therefore, apparent and evident. Consequently, the respondent – tenant has not let in any evidence including that of previous tenants who were in occupation of the said mulgies to substantiate his plea as to when these mulgies fell vacant and why they were vacated by the earlier tenants. Except the sole testimony of R.W.1, no other evidence was let in by the respondent - tenant. The amended pleas in para 9(a) of the counter also remained unestablished, as after amendment of the said counter, the respondent - tenant did not lead any supporting evidence in support of the amended pleas. There is, therefore, no material to hold that the petitioner - landlord’s personal requirement is not bona fide nor there is any evidence with respect to whether the other mulgies are vacant or occupied so as to reject the personal requirement pleaded by the petitioner - landlord. In view of the decisions in D.Devaji’s and Jagadeshwaraiah’s cases referred to above, the petitioner – landlord will be well within his rights to seek a particular premises on bona fide personal requirement on the ground of suitability as compared to the other non-residential premises which may be available to him. In the present case, no other premises was shown to be vacant and available for the petitioner – landlord and as such his requirement of ‘scheduled premises’ cannot be said to be not bona fide. One more aspect that needs to be dealt with, which was urged by the learned counsel for the respondent – tenant and held by the lower appellate Court, is with regard to the suppression on the part of the petitioner - landlord in not disclosing that he has 14 mulgies. I find it difficult to accept that it is a suppression of material fact inasmuch as the respondent - tenant is expressly aware of number of mulgies and whether they were vacant or occupied and if so by whom. Except making a general statement in the counter that some of the mulgies are vacant and some other are in possession of tenants, neither there is any specific pleading nor there is any evidence to establish that the petitioner - landlord has many number of non- residential premises available apart from the scheduled premises. Thus, even if the petitioner - landlord has not mentioned his owning of 14 mulgies, that by itself cannot be said to be a suppression of material fact so as to disallow the personal requirement pleaded by him. The lower appellate Court, therefore, committed serious error of law while dealing both the aspects referred to above and the judgment of the lower appellate Court being perverse and amounts to denying bona fide personal requirement to the petitioner - landlord’s son for setting up legal practice, interference with the impugned order of the lower appellate Court is just and necessary and warranted in law. Therefore, the order of the lower appellate Court is set aside restoring the order of the Rent Controller. Consequently, the eviction petition – R.C.No.217 of 2006 shall stands allowed. The learned counsel for the respondent - tenant at this stage sought eight months time to enable his client to vacate the scheduled premises in view of the fact that it is a commercial premises, whereas the learned counsel for the petitioner – landlord is agreeable to the extent of three months time. In the circumstances, the respondent – tenant is granted time till 31.12.2011, by which time he shall vacate and handover vacant and peaceful possession of the scheduled premises to the petitioner – landlord. Time granted above shall be subject to the following conditions: 1. Within two weeks from today, the respondent – tenant shall file an undertaking before the learned Rent Controller that he will vacate the scheduled premises on or before 31.12.2011; 2. that the respondent – tenant shall pay all the arrears of rent, if any, within two weeks from today; 3. that the respondent – tenant shall continue to pay rent every month up to the date of vacation without fail and without default; 4. that the respondent – tenant shall not let out the scheduled premises or create any third party interests in any manner whatsoever pending the time granted for vacating the scheduled premises; and 5. in default of filing of undertaking as above, the decree for eviction shall be executable immediately. Accordingly, the Civil Revision Petition is allowed. However, no order as to costs. ______________________ VILAS AFZULPURKAR, J 19th July, 2011 GHN [1] AIR 2003 SC 2077 [2] 1994 (Supp) 1 SCC 729 [3] (1998) 5 SCC 572 [4] 2010 (4) ALD 550 [5] 2007(1) ALD 438 [6] 2005(1) ALT 49 [7] 2000(1) ALD 627