THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2198 of 2007 Date: 11.02.2011 Between: Shaik Samad … Petitioner AND Shakharam Sujathamma and 2 others … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2198 of 2007 ORDER: The tenant in house bearing door No.W.21/134 in Pedda Bazar, Nellore Town preferred the present revision. The owners of the property laid RCC No.37 of 2006 before the learned Rent Controller- cum-Principal Junior Civil Judge, Nellore seeking for the eviction of the tenant on the ground of wilful default and also on the ground of bona fide requirements. The learned Rent Controller disallowed the claim of the owners of the property and dismissed the Rent Control Case. The Rent Control Appellate Authority-cum-Principal Senior Civil Judge, Nellore, however, reversed the findings of the learned Rent Controller in the appeal preferred by the owners of the property (called landlords hereinafter) and directed that the tenant shall vacate the premises within two months from the date of the appeal. Assailing the same, the tenant laid the present revision. 2. One Venkata Subbaiah, was the owner of the schedule premises. The first petitioner in the tenancy case is his wedded wife. The petitioners 2 and 3 in the tenancy case are his children. After the death of Venkata Subbaiah, the petitioners in the tenancy case succeeded to the estate of late Venkata Subbaiah and thus became the landlords of the premises under the occupation of the tenant. 3. The premises is 8½ ankanams in extent equivalent to 44 square feet (1 ankanam is equal to 8 square feet) of house property. The premises are situate in commercial locality. The case of the tenant is that one Narsimhulu Shetty was the owner of the schedule premises and that the tenant took the premises on lease from Narsimhulu Shetty in 1955 on a monthly rent of Rs.6/-. The premises were taken on lease for non-commercial purpose viz., to carry on tinkering work. The tenant further claimed: a) The original owner of the premises got the electricity connection to the premises. He received Rs.1,000/- from the tenant at that time towards expenses for securing electricity line. The condition between the original landlord and the tenant herein is that the landlord shall return Rs.1,000/- to the tenant as and when the tenant vacates the premises. b) Venkata Subbaiah, husband of the first petitioner and father of the petitioners 2 and 3 in the Rent Control Case, as the son of Narsimhulu Shetty succeeded as the owner of the property when Narasimhulu Shetty passed away. The rent was Rs.100/- per month by the time Narasimhulu Shetty died. The rent was enhanced to Rs.150/- from the time Venkata Subbaiah became the owner of the property. The rent continuous to be Rs.150/- per month since then. c) While so, Venkata Subbaiah died in Febtruary, 2000. The landlords received the rent till 01.11.2000. When the tenant tendered rent for the month of November, 2000, the landlords refused to receive the same. The tenant, consequently, issued a notice on 14.12.2000 calling upon the landlords to furnish the bank account number to which rent is to be deposited by the tenant. The landlords reluctantly furnished their bank account number, but made other allegations in reply to the notice of the tenant dated 14.12.2000. The tenant has been depositing rent to the account ever since. Thus, there are no arrears of rent. d) This is a contention of the tenant in respect of the claim of the landlords relating to wilful default. 4. Regarding the claim of the landlords that the premises are required for bona fide necessities, the tenant contended that the claim is illusory and false and that there was no bona fide requirement for the landlords. 5. The landlords examined one of the three landlords (the third petitioner in RCC No.37 of 2000) as PW.1. The tenant did not choose to examine anyone including himself. The landlords further filed Exs.A.1 and A.2, which are the educational and experience certificates of PW.1. Considering the overall case, the learned Rent Controller disbelieved the case of the landlords and dismissed the case. The appellate Authority reversed the findings of the learned Rent Controller. 6. Sri M. Ravindra, learned counsel for the landlords inter alia contended that the tenant filed O.S.No.181 of 2001 on the file of the Principal Junior Civil Judge, Nellore, seeking for a perpetual injunction against the landlords herein and that O.S.No.181 of 2001, however, was dismissed on 27.02.2007. He pointed out that laying O.S.No.181 of 2001 by the tenant is tantamount to denial of the title of the landlords and that the denial of the title of the landlords by the tenant itself is a ground to order the eviction of the tenant. As rightly submitted by Sri K. Narsi Reddy, learned counsel for the tenant, there is no record regarding O.S.No.181 of 2001. What was the suit for? Who laid the suit? Who was the defendant or defendants in the suit. What was the judgment of the Court? Unless it is shown that the suit was questioning the title of the landlords herein, it cannot be considered to be a suit denying the title of the landlords by the tenant. 7. The learned counsel for the landlords contended that the tenant laid the suit after filing of the Rent Control Case and that the landlords, therefore, had no opportunity to refer to the claim of the tenant. I am afraid that the landlords could have amended the petition referring to the claim of the tenant in O.S.No.181 of 2001. They have not chosen to do so. Further, the learned counsel for the landlords contended that O.S.No.181 of 2001 was dismissed on 27.02.2007. The Rent Control Case in RCC No.37 of 2000 was dismissed on 19.06.2006. In other words, O.S.No.181 of 2001 was pending by the time the present Rent Control Case was disposed of. The landlords could have adduced documentary evidence that the tenant filed O.S.No.181 of 2001 and that it was tantamount to the denial of the title of the landlords. Where there is no evidence on record regarding O.S.No.181 of 2001, I unhesitatingly accept the contention of the tenant that the landlords failed to prove that the tenant filed O.S.No.181 of 2001 and that the tenant denied the title of the landlords. At any rate, the grounds on which the landlords sought eviction of the tenant are that the tenant committed wilful default and that the landlords have bona fide requirement. Hence, there are no implications in this case regarding O.S.No.181 of 2001 on the file of the Principal Junior Civil Judge, Nellore. I ignore the contention of the learned counsel for the landlords and his reference to O.S.No.181 of 2001. Wilful Default: 8. The landlords contended that the premises was fetching a rent of Rs.200/- per month and that the tenant committed wilful default in payment of rents. The tenant on the other hand contends that the rent was enhanced to Rs.150/- during the life time of Venkata Subbaiah and that the tenant has been paying the same regularly. It is the case of the tenant that the landlords received rent for the month of October, 2000 also and refused to receive rent due for the month of November 2000 payable in December 2000, so much so, the tenant issued a notice on 14.12.2000 requesting the landlords to furnish bank account number. The learned counsel for the landlords contended that by 14.12.2000, the Rent Control Case was already laid by the landlords. The decree in RCC No.37 of 2000 shows that the Rent Control Case was laid on 30.10.2000. Even according to the tenant, the landlords received rent for the month of October when paid in November and that the landlords refused to receive rent payable for the month of November only. In other words, according to the tenant, the landlords received rent even after the Rent Control Case was filed. As the Rent Control Case was filed on 30.10.2000 and according to the tenant, the landlords received rent for the month of October, 2000 also. 9. The learned counsel for the landlords contended that the tenant failed to prove payment of rents till October, 2000 and that the tenant committed wilful default from May, 2000 onwards. There is no proof positive either from the landlords or from the tenant regarding their respective claims for payment of rents by the tenant till October, 2000. 10. However, it may be noticed that the tenant deposited rents in the bank when the landlords furnished their bank account number. Admittedly, the landlords withdraw the rent deposited by the tenant without recording any protest. I agree with the finding of the learned Rent Controller that withdrawing of the rent deposited by the tenant in the bank by the landlords without protest is tantamount to acquiescence. The landlords cannot turn around and claim that the tenant committed wilful default. 11. One need not go into the question of the rival claims regarding the payment of rents and the default committed by the tenant. Admittedly, the tenant went on depositing rents in the account of the landlords from December, 2000 onwards. Admittedly the landlords withdrew the deposits made by the tenant. The landlords cannot approbate and reprobate at one and the same time by receiving the rents deposited by the tenant on the one side and by contending that the tenant committed wilful default at the same time. The Rent Controller, therefore, was perfectly justified in holding that the tenant did not commit wilful default. The Rent Control Appellate Authority also reached the same conclusion that the landlords failed in establishing that the tenant committed wilful default. The finding of the learned Rent Controller as confirmed by the appellate Authority does not deserve to be interfered with. I have no hesitation to hold that the landlords failed to show that the tenant committed wilful default. 12. The revision to the extent of wilful default deserves to be dismissed. Bona fide requirement: 13. The landlords claim that they required the premises for their personal use and occupation. The case of the landlords is that the third petitioner is a civil engineering graduate and has sufficient experience in the building construction activity. The landlords assert that the third petitioner would like to start a private consultancy in the demised premises. The tenant indeed contended that the claim of the landlords that they required the premises for the business purposes of the third petitioner was not true and that the same had been invented to create a ground to seek the eviction of the tenant from the demised premises. 14. Admittedly, the third petitioner who deposed as PW.1 is a graduate in civil engineering. In his evidence as PW.1, the third petitioner contended that he worked under one Sri S.S.V. Rama Mohan Rao from April, 2000-2005 and that he has exposure and experience in building construction activity. His claim is that he had been working under S.S.V. Rama Mohan Rao from April 2000, whereas the Rent Control Case was filed on 30.10.2000. However, in the Rent Control Case, the third petitioner (PW.10) was described as an unemployed person. The learned counsel for the tenant contended that the learned Rent Controller was perfectly justified in disbelieving the evidence of the third petitioner where the evidence of the third petitioner as PW.1 did not synchronize with the description of the third petitioner in the Rent Control Case. I am afraid that merely because the third petitioner was described to be an unemployed person, it cannot be concluded that the claim of the petitioners of a bona fide requirement is false. The tenant may agree or disagree that the third petitioner is an unemployed person. If the third petitioner is an unemployed person, his intention to start a business and requiring the premises for his business purposes cannot be questioned. In the alternative, the claim of the petitioners that the third petitioner is an experienced builder may be accepted. In such an event, the idea of the third petitioner to start his own business on account of the experience he already possessed cannot be doubted. Thus, whether the third petitioner is an experienced builder or a novice in business activity, the intention of the third petitioner to start his own business cannot be doubted. 15. The learned Rent Controller considered that the demised premises is small and would not be sufficient for the alleged proposed business activity of the third petitioner and that the claim of the petitioner of bona fide requirement, therefore, need not be accepted. It is for the landlords to decide whether the premises would be sufficient to conduct their business and whether the premises is sufficient for their bona fide needs. It is not for the tenant to decide whether the premises would be sufficient for the bona fide needs of the landlords. 16. Indeed, the tenant would certainly be entitled to show that the alleged need of the landlords is not true and that the claim is made by the landlords with the intention of evicting the tenant. In other words, it is for the tenant to show that the landlords do not have the bona fide requirement and that the alleged need of the landlords to occupy the demised premises is mala fide or is not bona fide, at least. 17. The evidence of the third petitioner as PW.1 to the extent that he is a qualified civil engineer has not been disputed. In fact, it is not necessary for the landlords to show that the third petitioner is a qualified civil engineer. However, admittedly, the third petitioner would appear to have secured distinction in his academic career. More importantly, the petitioners claimed the demised premises for the business avocation of the third petitioner. 18. The third landlord as PW.1 claimed that the landlords had been residing in Sikharamvari Street, Pedda bazaar, Nellore and that the same was a commercial locality. He further contended that the second landlord, who is the elder brother of PW.1, had been running a stationery shop in the Sikharamvari Street and that the demised premises which is also located in Sikharamvari street was not only convenience but was necessary for PW.1 to run his business. It is the case of the tenant that when the landlords are seeking for the eviction of a non-residential premises, the landlords show that they do not own another non-residential premises in the town in which the demised premises is located. He further contended that if the landlords are seeking the demised premises by way of additional accommodation, the landlords must show that the relative convenience of the landlords in taking over the possession of the demised premises is more than the relative inconvenience that it would cause to the tenant. Inter alia, the learned counsel for the tenant would appear to suggest that the landlords are seeking the premises by way of additional accommodation only. 19. It is not the claim of the tenant that the landlords have another premises, much less, another non-residential premises at Nellore for the landlords to establish their claim by bringing out other circumstances. It is the case of the landlords that the schedule premises is a non-residential premises and that the same is required for the proposed business venture of the third landlord. The tenant merely contended that the claim of the landlords that the third petitioner was going to start the business is false. Beyond that the tenant did not contend that the landlords have other non-residential premises at Nellore and that the landlords, therefore, are not entitled to seek the eviction of the tenant on the ground of bona fide requirement; nor did he contend that the landlords were requiring the premises by way of additional accommodation and that they failed to establish relative merits of their claim vis-à-vis the inconvenience of the tenant. Thus, the only contention of the tenant is that the so-called bona fide requirement of PW.1 is mala fide. 20. As rightly submitted by the learned counsel for the landlords, it is for the tenant to show that the claim of the landlords is mala fide. Undoubtedly, the initial onus rests upon the landlords. Where it is evident that PW.1 is a civil engineering graduate, whether he is employed or unemployed, the tenant has failed through any evidence or inference to show that the requirement of the landlords is mala fide. The finding of the learned Rent Controller that the claim of the landlords is not bona fide cannot be accepted where the finding of the learned Rent Controller is erroneous. The Rent Control Appellate Authority correctly assessed that the requirement of the landlords is bona fide and ordered the eviction of the tenant. The landlords have established that the requirement of the demised premises by the third petitioner is bona fide. Consequently, the tenant is liable to be evicted from the premises on the ground that the landlords required the premises for their bona fide occupation. 21. The tenant has been a tenant of the premises since about 1955. It, therefore, is appropriate to grant reasonable time to the tenant to vacate the premises. Accordingly, the tenant is granted six months time to vacate the premises. The civil revision petition is allowed in part holding that the landlords have established their claim that they required premises for the bona fide occupation of PW.1. However, there shall be no order as to costs. _______________ K.G. SHANKAR, J Date: 11.02.2011 Isn