THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.139 of 2011 Dated:- ______ September, 2011 Between:- B.S.Prabhakar and others …Petitioners AND Smt. V.Naga Lakshmi …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.139 of 2011 ORDER:- This revision is directed against the order dated 09.12.2010 passed in R.A.No.284 of 2010 by the Additional Chief Judge, City Small Causes Court, Hyderabad, (‘the lower appellate authority’, for brevity), whereby and whereunder, the order dated 28.06.2010 passed in R.C.No.159 of 2008 by the Additional Rent Controller, Secunderabad (‘the Rent Controller’, for brevity) was set aside directing the petitioners herein to vacate and handover the vacant possession of the petition schedule mulgi within two months from the date of its judgment to the respondent herein. 2. The petitioners herein are the tenants and the sole respondent herein is the landlady of the premises bearing municipal Nos.1384, 1386, 1397 and 1403 (Old) with New No.5-4-342 to 346 and 5-4-395 situated at Pioneer Bazar, Bollarum, Secunderabad (petition schedule premises). For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Rent Controller. 3. The brief facts of the case are as follows:- The petitioner is the absolute owner and the respondents are the tenants of the petition schedule premises. The respondents are conducting business in the name and style of ‘Ravi Dry Cleaners’. The petitioner is also conducting business in sale of cattle feed, raw rice and oil being her proprietary concern in another mulgi adjacent to the petition schedule premises. The petitioner has been stocking her stocks in the portion behind the said mulgi. The petitioner’s eldest son is in private service having completed his MBA and the second son, who discontinued his degree, is without any job. The petitioner’s husband is presently working as Technical Manger in ECIL and is likely to retire shortly. The petitioner’s specific case is that in order to create independent source of livelihood to her second son who is inclined to start business in Kirana and General Merchandise, she demanded the respondents to vacate and handover the vacant and peaceful possession of the petition schedule premises. She got issued Ex.P.2 – legal notice dated 30.06.2008 to the respondents to which, the respondents issued a reply notice dated 22.07.2008 in Ex.P.5 and failed to comply with the demand of the petitioner. Thus, the petitioner filed the R.C. before the Rent Controller under Section 10(3)(a)(iii) (b) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, (‘the Act’, for brevity) seeking eviction of the respondents from the petition schedule premises. 4. The respondents contested the matter and filed counter. Their case is that they have been depositing the rents pertaining to the petition schedule premises in R.C.No.3 of 2005 on the file of the Additional Rent Controller, Secunderabad, without any default from the year 2005 to till date. Their specific case is that if the petitioner’s second son intends to start his own business, the said business can be conducted in the same mulgi in which the petitioner is doing business. It is also their case that the R.C. is filed only with an evil intention to evict them and that they are totally dependent upon their business since 50 years. 5. The petition filed rejoinder contending inter alia that she undertakes not to let out the petition schedule premises to any other third party and that she bonafidely require the petition schedule premises, i.e., for starting of business by his second son. 6. Basing on the above pleadings, the only point formulated by the Rent Controller is that whether the petitioner is entitled to seek eviction of the respondents from the petition schedule premises on the ground of personal occupation for conducting the business of her son. 7. On behalf of the petitioner, the petitioner herself was examined as P.W.1 and the second son of the petitioner – V.Karthik was examined as P.W.2 and Exs.P.1 to P.20 were marked. On behalf of the respondents, the first respondent – B.S.Prabhakar was examined and Exs.R.1 to R.4 were marked. 8. The learned Rent Controller, on appreciation of the oral and documentary evidence available on record, came to the conclusion that the second son of the petitioner, who is examined as P.W.2, is himself sitting in the shop of the petitioner and that though the business is in the name of the petitioner, but her second son is doing business and, therefore, the claim of bonafide requirement of the petition schedule premises by the petitioner is not correct. Holding so, the learned Rent Controller dismissed the R.C. Aggrieved by the same, the petitioner carried the matter in appeal in R.A.No.284 of 2010 before the lower appellate authority and the lower appellate authority, observing that the petitioner had specifically pleaded that she is in possession of the adjacent mulgi and that she requires the petition schedule premises for her second son’s business and that merely because the second son of the petitioner (P.W.2) was sitting in the shop of the petitioner in her absence, that is not sufficient to deny the claim of bonafide requirement of the petition schedule premises by the petitioner and that the relative hardship of the tenant cannot be considered in case of bonafide requirement of the landlord and that it is not the case of the respondents’ that no mulgies are available in the said locality, reversed the findings of the Rent Controller and allowed the appeal and directed the respondents to vacate and handover the vacant possession of the petition schedule premises to the petitioner within two months from the date of its judgment. Aggrieved by the same, the respondents/tenants preferred this revision. 9. Sri K.Mohan, learned counsel for the petitioners herein/tenants submitted that admittedly, the respondent herein is having other non-residential accommodation in which she claims that she herself is doing business. Learned counsel has taken me through the evidence and the admissions made by the respondent herein and submitted that in fact, the respondent herein is a house-wife and that it is her second son who is doing business in the petition schedule premises. It is also his submission that admittedly, the adjacent mulgi, in which the respondent herein herself is carrying on business, is ten times bigger than the petition schedule premises and that an application under Section 10(3)(a)(iii)(b) of the Act does not apply and the petitioners herein ought to have filed the R.C. under Section 10(3)(c) of the Act. It is also his submission that the lower appellate Court failed to appreciate the hardship likely to be caused to the petitioners herein and that the proviso to Section 10(3) of the Act has not been considered. His main submission is that the respondent herein has not made any specific averment regarding non-suitability of the mulgi in her occupation for carrying on her business. It is also his submission that the decisions referred by the lower appellate Court in its judgment are not applicable to the facts of the present case. It is also his submission that when the aspects of quality, size and suitability of the petition schedule premises already in the occupation of the respondent herein is not specifically pleaded and no proper evidence has been let in, the impugned order cannot sustain and if it appears that the claim of the respondent herein is bonafide, the matte may be remanded back to the Rent Controller for ascertaining the suitability of the residential premises in her occupation. 10. In support of his contentions, learned counsel had relied upon the judgments in the cases between Boorgu Jagadeshwaraiah & Sons Vs. Pushpa Trading Co.,[1], Mohammed Abdul Rahman and others Vs. B.Manorama and another[2] and Gulab Chand Pukhraj Vs. R.B.Jinender Raj[3]. 11. Per contra, Sri Eranki Phani Kumar, learned counsel for the sole respondent herein/landlord submitted that even if the respondent herein is in possession of any non-residential premises in the very same town or locality, that circumstance does not prohibit her to seek eviction of the tenant from the petition schedule premises on the ground of bonafide requirement or for her personal occupation. His main submission is that the husband of the respondent herein is already retired from service and that her second son is not doing any job and that the respondent herein bonafidely require the petition schedule premises which is in the occupation of the petitioners herein for the purpose of starting business independently by her second son. It is also his submission that in fact, it is the obligation of the respondent herein to settle her son and to make him economically independent. 12. In support of his contentions, learned counsel had relied upon the judgments in the case between D.Devaji Vs. K.Sudarashana Rao[4], Kanda Lingaiah Vs. P.Nirmala Devi[5], Smt.G.Kaushalya Devi Vs. Ghanshyamdas[6], Deep Chandra Juneja Vs. Lajwanti Kathuria (dead) through L.R.s[7], Joginder Pal Vs. Naval Kishore Behal[8]. Learned counsel had also relied upon the same judgments in Boorgu Jagadeshwaraiah & Sons’s case (1 supra) and Gulab Chand Pukhraj’s case (3 supra), which are relied upon by the learned counsel for the petitioners herein. 13. In view of the above rival claims, the only and the prime point that arise for consideration in this revision is whether the respondent herein/landlord has to prove that the quality, size and suitability of the premises in her occupation is not sufficient to enable her second son to start his own independent business to evict the petitioners herein from the petition schedule premises. 14. Section 10(3)(a) of the Act is as follows:- 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- (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 a 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; (c) a landlord who is occupying only a part of a building, whether residential or non-residential may, notwithstanding anything 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 building 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. (e) The controller shall, if he is satisfied that the claim of the landlord is bona fide, makes an order directing the tenant to put the landlord in possession of the building 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 landlord: Provided further that, the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate. 15. Similar question came up for consideration before the Apex Court in D.Devaji’s case (4 supra). In that case, the main contention of the tenant was that the landlord had several non-residential buildings as well as shops. In the above circumstances, the Apex Court observed as follows:- “A reading of the above quoted provision requires a critical analysis for its application. The landlord is required to prove his bona fide requirement of the non-residential building to carry on or commence a business. At the relevant time the landlord is not in occupation of another 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 the Act or otherwise. The object of the Act is to enable landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or which he bona fide proposes to commence. The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom.” 16. Learned counsel for the petitioner herein placed reliance on Boorgu Jagadeshwaraiah’s case (1 supra), wherein, relevant provisions of Section 10(3)(a) (iii) came up for consideration. In that case, the landlord sought eviction of the tenant on the ground that the non- residential building which was in his possession was not sufficient and suitable to meet his requirement of opening textile and cloth business. The claim of the landlord was negatived by the High Court basing on the judgment in D.Devaji’s case (4 supra). In the circumstances, while referring to D.Devaji’s case (4 supra), the apex Court held as follows:- “The aspects of quality, size and suitability of the building have been totally put out of consideration. We think this would frustrate the purposes of the Act”. 17. Accordingly, the judgment of this Court was set aside and the matter was remitted back to this Court for considering the objection of the tenant as to the claim of the landlord. 18. Learned counsel for the petitioner herein has also relied upon Mohammed Abdul Rahman and others’s case (2 supra). In that case, the landlords filed eviction petition on the ground of bonafide requirement and willful default. The Rent Controller, though negatived the allegation of willful default, but upheld the contention of the landlord about his bonafide requirement. The appellate authority reversed the orders of the Rent Controller. During the pendency of the appeals, the tenants handed over the possession of two mulgies as a result of which, the landlord, who had filed two rent appeals, did not press those appeals It was observed that P.Ws.1 to 3 did not even utter anything as to the suitability or otherwise of the available first floor rooms. In the above circumstances, this Court observed as follows:- “A reading of Section 10(3)(a)(iii) of the Act would show that even when in the opinion of Rent Controller, the landlord proves bona fide purpose to commence a new business and also owns another non-residential premises which according to him is not suitable, still eviction cannot be ordered as it would amount to reading the suitability, sufficiency and convenience factor into the provision, which are very conspicuous by absence. Further, even while examining the bona fide purpose, the Controller has to keep in mind, the conduct of the parties, intention of the parties, the motive behind filing eviction petition and the efforts made by landlord to secure tenanted premises.” 19. Learned counsel for the petitioner herein had also relied upon Gulab Chand Pukhraj’s case (3 supra). In that case, the claim of the landlord of bonafide requirement was opposed by the tenants on the ground that the landlords are already in possession of non- residential premises. The contention of the tenant was upheld by the Rent Controller. When the matter was carried to the appellate authority, the appellate authority held that the landlords have proved their claim of bonafide requirement for starting business in jewellery. Then the matter was carried in revision before this Court and then to the Apex Court. The Apex Court, after considering the decisions of J.Pandu Vs. R.Narsubai [(1987) 1 SCC 573], D.Devaji’s case (4 supra) and Boorgu Jagadeshwaraiah’s case (1 supra), finally came to the conclusion that the decision of the three Judge Bench in Boorgu Jagadeshwaraiah’s case (1 supra) seems to be a reasonable view. 20. Thus, it is clear that wherein a case, the landlord has occupied any other non-residential building in the same city, the aspects of quality, size and suitability of the building for the business have to be considered. 21. On the other hand, learned counsel for the respondents, in addition to Boorgu Jagadeshwaraiah’s case (1 supra) and Gulab Chand Pukhraj’s case (3 supra) which are already discussed above, had relied upon Smt.G.Kaushalya Devi’s case (6 supra). In that case, the landlord sought eviction of the tenant on the ground of wilful default and bonafide requirement. When the matter reached this Court, this Court concurred with the findings of both the Courts below on the ground of bonafide requirement. It was argued on behalf of the tenant that the landlord was already in occupation of certain shops though on lease in the same city and was running his business in partnership. Rejecting the contention of the tenant, the Apex Court observed as follows:- “It will be seen that provisions of Section 8(3)(a)(ii) of the Mysore Act are quite in part materia with the provisions of Section 10(3)(a)(iii) of the Act. We, therefore, cannot accept the contention of the appellant that since the. respondent is already having his business in a leased premises of which he is in possession, he cannot seek eviction of the appellant. It is not disputed that other conditions of Section 10(3)(a)(iii) are satisfied in favour of the landlord. A contention was also raised that another shop had been purchased by the mother of the respondent with the amount loaned by the respondent and that on that ground it could also be said that the respondent was entitled to possession of that shop as well. This contention has been repelled by the High Court and rightly so. High Court upheld the finding of the Courts below that the respondent required the suit premises for his personal occupation for conducting the business and that these findings were neither perverse or based on any extraneous or irrelevant material. High Court was also of the view that the Act did not prohibit eviction of the tenant by the landlord if the members of the family of the landlord possessed other non- residential premises. Even though the respondent and his brothers were conducting business on partnership basis in M/s. Seetha Traders, yet it was no ground to contend that the requirements of respondent are not bona fide. We agree. No other submission has been made before us to take any different view other than that taken by the High Court.” 22. Thus, even if any member of the family of the landlord has been in possession of any other non- residential premises, the landlord would be entitled to possession of the premises in question, if he requires it bonafiidely for his own business. It was also held in that case that even though the landlord and his brothers were doing partnership business, it was not a ground to contend that the requirement of the landlord is not bonafide. Thus, even if the landlord is already having his business in a leased premises of which he is entitled, it cannot be said that he cannot seek eviction of the tenant. 23. Reliance has also been placed by the learned counsel for the respondent in Joginder Pal’s case (8 supra). In that case, the landlord sought eviction of the tenant on the ground that his son is a Chartered Accountant and the premises is required for the office of his son. The petition was filed under East Punjab Urban Rent Restriction Act, 1949. Considering the circumstances, the Apex Court held as follows:- “The Courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society.” 24. In the same case, while interpreting the words in phrase ‘for his own use’, the Apex Court held as follows:- “The expression ‘for his own use’ as occurring in Section 13(3)(a)(ii) of the Act cannot be narrowly construed. It must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to filful the requirement, he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use.” 25. Reliance has also been placed by the learned counsel for the respondent herein on Deep Chandra Juneja’s case (7 supra). In that case, the petition was filed under the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the rules made there under, which came up for consideration. The landlord sought eviction of the tenant for the need of her sons, daughters-in-law and grand children to provide a proper and comfortable living rooms, kitchen and bathrooms for her children. It was pleaded by the tenant that the other tenants, who were living in the same building had vacated the accommodation which were again let out by the landlady to the new tenants on higher rents and that the landlady was having one more house. Initially, the contention of the landlady was not accepted by the prescribed authority predominantly on the ground that the premises earlier evicted by the tenants were not utilised by the landlady for the use and occupation of her family members, but in fact, those were let out to other new tenants. However, the appellate authority reversed the said finding. The appellate authority and the High Court came to the conclusion that the tenant and his family members have got separate accommodation and that the requirement of the accommodation of the landlady is bonafide and genuine and the comparative hardship also is more pressing to the landlady and thus rejected the contention of the tenant. When the matter was carried to the Apex Court, the Apex Court, referring to the decisions in the case between Gaya Prasad Vs.Pradeep Srivastava [(2001) 2 SCC 604], wherein it was held that the need of the landlord has to be seen on the date of the application for release and also the observations in Prativa Devi Vs. T.V.Krishnan [(1996) 5 SCC 353] that the landlord is the best judge of his requirement and the Courts have no concern to dictate the landlord as to how and in what manner he should live, dismissed the appeal of the tenants. 26. Learned counsel for the respondent herein had also relied on Kanda Lingaiah’s case (5 supra). In that case, the landlady sought eviction of the tenant for the purpose of commencing the business by her son and the husband. Her husband was a retired employee and the son was running a medical store and he sustained losses. Having considered the facts and circumstances of the case, this Court held that the requirement of sons and the husband of the landlady is also the requirement of the landlady. 27. Thus, from the above, it is clear that the bonafide requirement of the landlord has been explained by various Courts and now the settled legal position seems to be that the requirement of the son or any other dependent of the landlord is also to be considered as the bonafide requirement of the landlord. 28. Coming to the facts of the present case, the case of the respondent herein/landlady is that the petition schedule premises originally belonged to one H.Pratap