HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.5622 of 2010 Date: August 24, 2011 Between: Fatimunnisa Begum @ Bibijan … Petitioner And Noorjahan Begum … Respondent * * * HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.5622 of 2010 O R D E R: This revision has been filed challenging the judgment dated 16.8.2010 in R.C.A. No.9 of 2008 passed by the Appellate Authority under A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, whereby and whereunder the Appellate Authority confirmed the order dated 20.8.2008 passed by the Rent Controller in R.C.C. No.99 of 2003. 2. The parties will be referred to as they are arrayed before the Rent Controller for the sake of convenience. 3. The respondent is said to be the tenant of the petition schedule premises. The respondent is the second wife and the petitioner is the first wife of Khaja Mohiuddin. After the death of the first husband of the respondent, Khaja Mohiuddin married her. The respondent has five daughters and two sons through her first husband. After she married Khaja Mohiuddin, she gave birth to a daughter through him. The petitioner has got one son and one daughter through her husband Khaja Mohiuddin. 4. The petitioner’s specific case is that she is the absolute owner of the petition schedule property, which she purchased from one Dwarampudi Apparao, through a registered sale deed dated 13.8.1990. In January 1994 the respondent approached her to lease out the thatched house along with vacant site for doing iron scrap business and accordingly the petition schedule property was leased out on a monthly rent of Rs.300/- to the respondent who also agreed to enhance the rent at Rs.25/- every year. The respondent was inducted into possession of the schedule property on 23.01.1994. The respondent used to reside in the thatched house and do business in old iron scrap. According to the petitioner, her husband married the respondent eight months after leasing out the schedule property to her. 5. The further case of the petitioner is that the respondent was irregular in paying rents and failed to pay from 01st August 2002 at Rs.450/- per month for a period of six months. The petitioner’s further case is that she is unable to maintain the family and therefore intends to commence mutton business which her husband has been doing at some other place and requested the respondent to vacate the premises. Since the respondent failed to vacate the premises, the petitioner issued a legal notice in September 2002. It is also the case of the petitioner that the she filed a suit in O.S. No.1175 of 2002 on the file of IV Additional Junior Civil Judge, Rajahmundry, seeking injunction and the same is pending. Thus, eviction of the respondent is sought on the ground of wilful default and bona fide requirement. 6. The respondent filed a detailed counter and denied the allegations made by the petitioner. Her further case is that she never approached the petitioner for obtaining lease of the petition schedule property and never agreed to pay the rent and that the husband of the petitioner himself inducted the respondent into petition schedule property which was vacant site by then and subsequently she was permitted to raise a thatched hut to do business and to live therein without any consideration since her deceased husband and present husband were friends. Subsequently, she married the husband of the petitioner. It is further contended that the husband of the petitioner is doing mutton business in their own building situated just few yards away from the petition schedule property and that the petitioner’s claim that the petition schedule premises is bona fidely required for her business is incorrect. Thus, she denied the petitioner is a landlady to the petition schedule property. 7. The learned Rent Controller framed the following points for consideration: (1) Whether there is any landlady and tenant relationship in between the petitioner and the respondent? (2) Whether the respondent committed wilful default in payment of rents? (3) Whether the premises is required to the petitioner for bona fide requirement? (4) Whether the petitioner is entitled for orders of eviction of the respondent from the petition schedule premises as prayed for? 8. On behalf of the petitioner, petitioner herself was examined as P.W.1 and her husband was examined as P.W.2 and Exs.A-1 to A-9 were marked. On behalf of the respondent, respondent herself was examined as R.W.1 and Ex.B-1 was marked. 9. The learned Rent Controller, considering Exs.A-1 and A-2, came to the conclusion that the petitioner is the owner of the petition schedule property. The Rent Controller also came to the conclusion that the evidence on record reveals that there was a thatched hut as on the date of execution of Ex.A-1 and therefore the contention of the respondent that she herself erected the thatched hut is not correct. It is also observed that the respondent agreed to deposit Rs.300/- per month and there is no evidence to show that she has deposited Rs.300/- per month in civil court deposits to the credit of O.S. No.1175 of 2002 and thus committed wilful default in payment of rents. 10. During pendency of the proceedings it appears that the respondent constructed a new house and shifted her residence to it from the petition schedule property, which is situated backside of the petition schedule property. The petitioner constructed ground floor and first floor in the backside portion. Ex.B-1 is the photograph marked through P.W.2. Of course, the shop in which the respondent is doing business is abutting the road and between the road and the construction raised by the petitioner. During the cross-examination it was suggested to the petitioner that she could do business in the newly constructed building. However, the Rent Controller, after perusing Ex.B-1 photograph and also the evidence of P.W.2, came to the conclusion that the backside portion is residential one and it is not suitable for doing business, ordered eviction. It is also elicited in the evidence that the respondent herself constructed a new house and shifted her residence from the petition schedule property to her new house and that she can set up her business in the front room of her new house. The learned Rent Controller came to the conclusion that the petitioner bona fidely required the premises for doing business and accordingly ordered eviction and the Appellate Court confirmed the same. 11. The main contention of the learned counsel for the petitioner is that admittedly the respondent had vacated 90% of the petition schedule area and the petitioner has already constructed a building consisting of ground floor and first floor and the petitioner did not plead the subsequent changes by amending her original petition. It is also his submission that the subsequent developments do not form part of the pleadings and therefore both the Courts have committed error in relying upon the subsequent developments without amending the original pleadings. 12. As seen from the entire evidence, it is clear that the husband of the petitioner has been doing mutton business in a separate premises, which is separated by four houses from the petition schedule premises. The crux of the issue is that the petitioner sought eviction of the respondent mainly on the ground that she required the premises bona fidely for doing business. Admittedly, after filing of the petition, the respondent had vacated 90% of the petition schedule area and allowed the petitioner to raise construction, which consists of a ground floor and first floor. Admittedly, the petitioner occupied the ground floor of her newly constructed house. 13. Now it has to be seen that the respondent is in possession of a small mulgi which is abutting to the main road and between the road and building constructed. Of course, it has come in evidence subsequently that the respondent herself had constructed another house with four rooms. Admittedly, after these developments the petitioner had not amended her petition. It is clear that these subsequent changes are not trivial, but they change the basic facts on which claims of the parties depend. 14. Now, it has to be seen that admittedly the petitioner constructed a new building. Therefore it has to be seen whether the newly constructed premises is suitable for her to start business or not. Originally she claimed entire area. Now she has constructed new building in 90% of the area which was in the occupation of the respondent. Admittedly, the petitioner had not amended her petition after these developments. It appears that both the Courts below have not considered these aspects and therefore these findings appears to be perverse and liable to be set aside. Therefore, without entering into the merits and other rival contentions, I am of the considered view that the matter has to be remanded to the Rent Controller. 15. Accordingly the civil revision petition is allowed setting aside the orders of the Appellate Court and the Rent Controller and the matter is remitted to the Rent Controller-cum-Principal Junior Civil Judge, Rajahmundry. The petitioner-landlady may file an application and amend her petition with regard to the subsequent developments and the respondent-tenant may file a counter and if necessary both the parties may adduce fresh evidence and then the learned Rent Controller may dispose of the matter in accordance with law. No order as to costs. _________________________ (B. CHANDRA KUMAR, J) Date: August 24, 2011. BSB