THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION NO.5133 OF 2009 DATED 8TH JUNE, 2010 BETWEEN Pasupuleti Ramesh … Petitioner And Maddi Narasimha Rao … Respondent THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION NO.5133 OF 2009 ORDER: This revision petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 is directed at the instance of the tenant who is aggrieved by the concurrent findings recorded under the order dated 05.12.2008 passed by the learned Rent Controller-cum-Principal Junior Civil Judge, Guntur, in R.C.C. No.31 of 2006 and under the Judgment dated 07.09.2009 passed by the learned Principal Senior Civil Judge, Guntur, in R.C.A. No.2 of 2009, ordering the eviction of the tenant on the ground of bona fide personal requirement pleaded by the landlord. The facts in brief are that the petitioner’s father was originally the tenant of the petition schedule premises and was running a business in the name of Bhagya Lakshmi Lighting & Loud Speakers. The evidence discloses that the father of the petitioner was a tenant from the year 1966 onwards and after his death the petitioner is continuing the said business and tenancy. The rent payable on the date of eviction petition is Rs.575/- per month. The respondent/landlord approached the learned Rent Controller-cum-Principal Junior Civil Judge, Guntur, vide R.C.C. No.31 of 2006, contending that he has four sons and the fourth son, by name, Maddi Ramesh, who was aged about 30 years by then, is carrying on business in selling small stationery articles, chocolates, biscuits and other candies in a small rented buddy shop situated in 5th line Brundavan Garden, Guntur. For the purpose of carrying on kirana business and also selling sundry articles by the fourth son of the respondent/landlord, the petition schedule premises was required by him. It was specifically averred that neither the respondent/landlord nor his fourth son are in possession of any other non-residential premises of their own, except the petition schedule premises. It is also averred that even during the life time of the father of the petitioner/tenant, requests on the said ground were made and that though the father of the petitioner/tenant agreed to vacate the petition schedule premises by the end of February, 2005, he died on 08.09.2004. Subsequently, the petitioner/tenant also did not vacate the same and filed the suit in O.S. No.130 of 2006 on the file of III Additional Junior Civil Judge, Guntur, seeking permanent injunction against the respondent/landlord. It is also averred that the petitioner/tenant is having three storeyed building in the same street in which the petition schedule premises is situated and another two storeyed building in another street in Guntur. The said eviction petition is resisted by the petitioner/tenant by filing a counter whereby all the averments made by the respondent/landlord were denied. However, he admitted that the respondent is the owner of the petition schedule premises. It was also averred that he is not having any movable or immovable properties and is living in a rented house and therefore would suffer great hardship if eviction petition filed by the landlord is ordered. Before the learned Rent Controller, the respondent/landlord examined himself as P.W.1 while the petitioner/tenant examined himself as R.W.1. The learned Rent Controller, on examination of the pleadings and the evidence adduced on either side, was of the opinion that the petitioner/tenant has failed to establish that the respondent/landlord owns any other property in Guntur town except the petition schedule premises and that the fourth son of the respondent/landlord for whose requirement the petition schedule premises was required, was of the same age group that of the petitioner/tenant and that the tenant had failed to controvert the specific averment of the landlord that his fourth son is carrying on business in a small buddy shop in a rented premises. The learned Rent Controller ultimately found inter alia that there is no oblique motive established on the part of the respondent/ landlord and in the absence of any evidence on the part of the petitioner/ tenant rebutting the bona fide personal requirement pleaded, the eviction petition was ordered. Under the impugned Judgment, the lower appellate Court confirmed the said order, concurring with the findings recorded by the learned Rent Controller. Aggrieved thereby, the present revision petition is preferred by the petitioner/tenant. Sri A.S.C.Bose, learned counsel appearing for the petitioner/ tenant has vehemently contended that the requirement pleaded by the respondent/landlord is that of his fourth son and thus the examination of his fourth son was essential. Therefore, the fact that the fourth son was not examined, according to the learned counsel, is fatal to the case of the respondent/landlord. He also contended that requirement pleaded by the respondent/landlord is not bona fide personal requirement and mere desire is not sufficient to seek eviction of the tenant from the petition schedule premises. In this regard, the learned counsel placed reliance upon the Judgment of this Court in KALIGOTLA SURYANARAYANA MURTHY v. P.V.RAMANAIAH[1] as well as the Judgment of the Supreme Court in SHIV SARUP GUPTA v. DR.MAHESH CHAND GUPTA[2] wherein the words ‘bona fide personal requirement’ was interpreted. Sri V.S.R.Anjaneyulu, learned counsel appearing for the respondent/landlord, on the contrary, contended that the concurrent findings of the Courts below are not shown to be perverse nor is it shown that the said findings suffer from any error of appreciation. He submitted that P.W.1/landlord himself has deposed in support of the bona fide personal requirement pleaded by him and in the cross- examination of P.W.1 nothing was suggested to disentitle him from the said requirement. It is therefore not necessary to examine the fourth son of the landlord and that his non-examination is not at all fatal to the case of the landlord. It is also contended that the bona fide personal requirement pleaded by the landlord was rightly judged by both the Courts below as the landlord is not having any other non-residential premises in Guntur town except the petition schedule premises. Considering the rival contentions, the points that require consideration by this Court is as to whether the respondent/ landlord has established his bona fide personal requirement; and as to whether the concurrent findings recorded by both the Courts below on that ground can be interfered with on the ground of perversity? I have not only perused the concurrent findings recorded by both the Courts below but also perused the pleadings as well as the evidence of P.W.1 and R.W.1. In support of the eviction petition, the respondent/landlord has specifically stated that his fourth son is carrying on petty business in a rented buddy shop located in 5th line, Brundavan Garden, Guntur. The averments made in the counter filed by the petitioner/tenant is one of mere denial and during the evidence of tenant as R.W.1 he specifically deposed to the said aspect in the cross-examination thus: “……. I do not know whether the said Ramesh is running a buddy shop at Brundavan Gardens, Guntur.” The aforestated statement by the tenant clearly shows that firstly he had not denied that the fourth son of the landlord is carrying on business at the aforestated address and secondly he does not assert that the requirement of the fourth son of the respondent/landlord is not bona fide personal requirement in as much as it is not denied that he is carrying on business in a rented small buddy shop. The further evidence of R.W.1 does not even suggest that the respondent/landlord has any other non-residential premises of his own or even the rented one in Guntur town except the petition schedule premises. The evidence of R.W.1 on the contrary proceeds to show that the respondent/landlord demanded enhancement of rent and an advance of Rs.25,000/- and as the petitioner/tenant did not meet the said demands of the landlord, the eviction petition came to be filed on the ground of bona fide personal requirement. It is however significant to notice that no such plea was raised in the counter filed by the petitioner/tenant. In the counter filed by him, the averments made therein are one of mere denial without making any such statement on the lack of bona fide personal requirement on the part of the respondent/landlord. The lower appellate Court has rightly followed the decision of this Court in B.ATAULLAH v. K.NISAR AHMED[3] wherein this Court held that when the bona fide requirement is true and there is no demand to pay higher rent, the evidence of the tenant for the first time stating about such demand for higher rent, without a specific plea in that regard in the counter, clearly shows that the requirement pleaded by the landlord is bona fide. So far as non-examination of the fourth son of the respondent/landlord is concerned, the contention of the learned counsel for the petitioner/tenant is based upon the decision in KALIGOTLA SURYANARAYANA MURTHY (1 supra). That was a case where the requirement was pleaded by the landlord for carrying on business by his sons and his sons were not examined. However, the landlord was examined. In the present case, the fourth son of the respondent/landlord was not examined. However, the bona fide personal requirement was pleaded by the father/landlord. This Court in the said case no doubt made some passing observations but was concerned with the question as to whether the eviction on such ground is permissible when the period specified by the lease deed is for a period of 75 years and there is a bar under Section 10(3)(d) of the Act for claiming eviction of the tenant when the tenancy is for a fixed duration. The passing observation on the above aspect therefore is not very relevant for the purpose of the present case. In so far as the decision of the Supreme Court in SHIV SARUP GUPTA (2 supra) cited by the learned counsel for the petitioner/tenant is concerned, the Supreme Court had considered the meaning of the words “genuine requirement and reasonable requirement” and in assessing the same the Supreme Court inter alia held that the landlord is the sole arbiter of his own requirement. In the present case, admittedly, the evidence on record clearly establishes that the respondent/landlord does not own any other non- residential premises in Guntur town except the petition schedule premises. It is also established that his fourth son for whose requirement the proceedings have been initiated, is carrying on business in a rented buddy shop, that too, a petty business. It would therefore be wholly opposed to the concept of bona fide personal requirement to deny the eviction of the tenant so as to compel the landlord and his fourth son to carry on the business in a rented small buddy shop by depriving them of their own premises if eviction petition is not allowed. For the reasons discussed hereinabove, I am unable to find any perversity in the concurrent findings recorded by both the Courts below and as such I am of the considered view that the impugned Judgment does not warrant any interference. The Civil Revision Petition is accordingly dismissed. However, in order to enable the petitioner/tenant to vacate the petition schedule premises, time is granted upto the end of September, 2010 to vacate the petition schedule premises and hand over the vacant possession thereof to the respondent/ landlord, subject to an undertaking to be filed by the petitioner/ tenant before the learned Rent Controller within a period of two (2) weeks from today to the effect that he shall not alienate or part away with the petition schedule premises or create any third party interest over the same and that he shall pay all the rents including the arrears, if any, upto the date of vacating the petition schedule premises. No order as to costs. _____________________________ VILAS V.AFZULPURKAR, J. 8TH JUNE, 2010. VGSR / PGS [1] 2002 (4) ALT 229 [2] (1999) 6 SCC 222 [3] 2001 (5) ALT 103