IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) THURSDAY, THE 24th DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.2252 of 2006 BETWEEN: C.Mahendranath … APPELLANT(S) And M.A.Azeem … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.2252 of 2006 ORDER: Petitioner in this revision filed under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short Act) is the landlord. Aggrieved by the order dated 21.11.2005 of the Chief Judge, City Small Causes Court, Hyderabad (appellate authority under the Act) allowing the tenant’s appeal R.A.No.392 of 2001 and dismissing his eviction petition while reversing the order of the Rent Controller, the landlord has come up with this revision. 2. The petition schedule premises is a non-residential one. The agreed monthly rent was Rs.300/-. There is no dispute regarding landlord-tenant relationship. 3. The landlord brought the eviction petition RC No.353 of 1999 on two grounds. The first is wilful default in payment of rents falling under Section 10(2)(i) of the Act while the second is bona fide requirement falling under Section 10(3)(a)(iii) of the Act. The learned II Additional Rent Controller by his order dated 12.10.2001 negatived the ground of wilful default but upheld the ground of bona fide requirement and ordered eviction. 4. It is brought to my notice by Sri Shankar the learned counsel appearing for the landlord that the landlord also filed cross- objections but they were not considered by the appellate authority and this is clear from the order of the appellate authority. A perusal of its order would show that it considered the question of wilful default in payment of rent as point No.1 holding that in view of the arguments raised by the landlord in the tenant’s appeal the same can be gone into by it in view of a decision of this Court given in BALLANI RANGANAYAKULU vs. MATTUPALLI NAGESWARA RAO[1] though cross-objections or cross-appeal have not been filed by the landlord. 5. The appellate authority then proceeded to consider both wilful default and bona fide requirement of the landlord as points 1 and 2. It confirmed the finding of the Rent Controller that there was no wilful default. However with regard to the question of bona fide requirement the appellate authority held that the evidence let in by the landlord does not establish it and in that view of the matter it reversed the order of the Rent Controller and dismissed the eviction petition. The landlord again has raised the same grounds in this revision. 6. The learned counsel for the landlord argued that the findings of the Rent Controller and the appellate authority on the question of wilful default and also the finding of the appellate authority on the question of bona fide requirement cannot be said to be based on proper appreciation of evidence and the legal principles governing both the grounds and that the appellate authority misdirected itself and gave perverse findings and therefore both the grounds must be upheld. On the other hand the learned counsel for the tenant argued that the order of the appellate authority is well-founded and since they are findings of fact this Court cannot reopen them in this revision. Both the counsel also cited several decisions in support of their respective contentions and consequently it has become necessary to consider their respective cases and contentions in detail. 7. Before going first into the ground of wilful default, one fact must be noted and that is this. The tenant earlier filed R.C.No.94 of 1997 under Section 8 of the Act in the Court of Principal Rent Controller, Hyderabad, seeking permission to deposit the rents on the ground that the landlord has unjustifiably refused to receive the same. That petition was allowed on 29.10.1997 and a certified copy of the order in the said petition was marked as Ex.R.129 from the side of the tenant. It must also be noted here that earlier the tenant filed I.A.No.115 of 1997 in the above R.C.No.94 of 1997 seeking for an interim direction to deposit the rents in the Court and that was allowed on 03.03.1997 and a certified copy of the said order was marked as Ex.R.128. 8. The period of default pleaded in the eviction petition is from January 1994 to July 1999 and the eviction petition was filed on 14.07.1999. It should now be noted here that in Ex.B.128 order dated 03.03.1997 passed in I.A.No.115 of 1997 in R.C.No.94 of 1997 the tenant began depositing the rents as the Rent Controller gave a direction in that petition for depositing the rents in the Court. However in Ex.R.129 order dated 29.10.1997 passed in the above R.C.No.94 of 1997 the Rent Controller directed the tenant to pay monthly rents on or before the 10th of every month directly to the landlord and obtain a receipt and if the landlord for any reason refuses to collect the rent and pass the receipt the tenant can send the rents by money orders after deducting the money order commission on or before the 10th of every succeeding month. The Rent Controller also added a rider that the said order was passed without prejudice to the rights and contentions of both parties in the rent control case. It is not known what rent control case was pending by the date of Ex.R.129 order since this eviction petition is filed on 14.07.1999. 9. What should be noted is that on the question of wilful default, both the Rent Controller and the appellate authority observed that in the petition the landlord mentioned the period of default as January 1994 to July 1999 but in his evidence the landlord stated that the default from January 1990 and he also failed to give the particulars as to how the tenant committed default. Both the appellate authority and the Rent Controller found that the tenant has been permitted to deposit the rents in the above RC No.94 of 1997 and he also sent the rents earlier by money orders and therefore he cannot be said to have committed any default. These are findings of fact recorded by both the authorities and they can be said to be based on proper appreciation of evidence and therefore in my opinion they do not call for any interference as the said findings cannot be said to be unfounded. 10. The learned counsel for the landlord however argued that both the courts went on the premises that there was a direction to deposit the rents in R.C.No.94 of 1997 whereas there was no such direction and the direction given in the said RC was only to pay the rents to the landlord by hand and obtain receipts or send the rents by money orders. He argued that since the tenant deposited rents in the Court for some months in spite of there being no direction in RC No.94 of 1997 the tenant must be held to be guilty of wilful default. It is true that the final order dated 27.10.1997 passed in RC No.94 of 1997 does not show that a direction was given to the tenant to deposit the rents in the Court whereas such a direction was given earlier in I.A.No.115 of 1997 vide Ex.R.128 order and the same can be said to have been merged in the final order. 11. It is true that going by the order in RC No.94 of 1997 the tenant should not have deposited the rents in the Court but he should have complied with that order and if he wanted to deposit the rents he could have made an application to the Court seeking its permission to deposit the rents in RC No.94 of 1997 pleading that the landlord was refusing to receive the rents. In fact, the Rent Controller in RC No.94 of 1997 should have added a further clause in his final order that if the landlord refused to receive the rents sent by money orders it was open for the tenant to deposit the rents in the Court. However regarding the payment of rents or deposit of rents this is what the tenant has stated in his chief- examination dated 02.11.2000. “I sent the rent for the month of October 1997 on 07.11.1997 through money order under Ex.R.65 and he received it. I sent the rents from October 1997 to May 1999 as per the court order by money order and the petitioner has been receiving the same. I sent the rent for the month of June 1999 in the month of July 1999 but the petitioner refused to receive it. After returning the rent for the month of June 1999 I deposited in the Court in R.C.No.94/1997. Again I sent the rent for the month of June and July 1999 in the month of August 1999 through money order but the petitioner refused to receive it. Then I deposited the rent for the month of July 1999 in the Court in R.C.No.94 of 1997. I have also deposited the rent from August 1999 upto February 2000 in the Court in R.C.No.94/1997. Again I sent the rent for the months of June 1999 to February 2000 for 9 months by two money orders dated 02.02.2000 and 03.02.2000 for Rs.2,565/- with MO commission of Rs.129/- and Rs.6/-. Ex.R.107 is the MO receipt dated 02.02.2000. Ex.R.108 is the MO receipt dated 03.02.2000. Petitioner refused to receive the said MOs. Ex.R.109 is the refused MO acknowledgment. Ex.R.110 is another refused MO acknowledgment. I paid rent for the month of February to June 2000 by M.O. to the petitioner and the petitioner refused the same. Ex.R.111 to Ex.R.118 are the M.O. postal receipts and acknowledgements. I used to deposit the rents in R.C.No.94/97 by giving notice to petitioner herein under certificate of posting.” 12. The above portion of the evidence of the tenant is extracted only to show how he acted in the matter. Nothing was elicited from the tenant to show that his above evidence is false. The above version of the tenant shows that he tried to send the rents by MO but when the landlord refused he deposited the rents for the relevant period in RC No.94 of 1997 by giving intimation to the landlord and that he again sent the same to the landlord by MOs which he refused. The above version of the tenant further shows that he was not careless and he acted in a bona fide manner to tender the rent to the landlord for the relevant period. Thus though there was no direction in the RC No.94 of 1997 still in my opinion the tenant cannot be said to have committed wilful default in paying the rents and if the landlord has not received the rent he has to blame himself. 13. It may be noted that though the Rent Controller and the appellate authority went on the premise that there was a direction in RC No.94 of 1997 for depositing the rents though in fact there was no such direction, the evidence on record shows that the tenant acted in all bona fides to tender the rents in question and by his answers he can be said to have given a reasonable explanation to the charge of wilful default and therefore he cannot be said to be guilty of wilful default. Both the Rent Controller and the appellate authority in substance went by the above evidence and concluded that there was no wilful default and their conclusions cannot be said to be baseless though they are based on different reasons. 14. The learned counsel for the landlord relied upon KULDEEP SINGH vs. GANPAT LAL[2], a decision of the Madras High Court given in CRP (NPD) No.2125 of 2010 dated 19.08.2010 (Photostat copy filed) and a decision of this Court given in ADAPA SANTHARAM vs. SAIT NATHMAL MANIK CHAND[3] in support of his contention that there was wilful default in the present case. These three decisions are distinguishable on facts. In the present case having regard to the evidence of the tenant and the circumstances, I am of the opinion that the contention of the tenant’s counsel that the tenant cannot be held guilty of wilful default, for the aforesaid reasons, merits acceptance. Accordingly this question relating to wilful default is answered in favour of the tenant confirming the order of the appellate authority. 15. That takes me to the other ground i.e. bona fide requirement of the landlord. The appellate authority negatived this plea of the landlord mainly for three reasons. The first reason is that the landlord as P.W1 in his evidence admitted that three mulgis belonging to him in an area called Doctors Colony in the locality called NTR Nagar nearby the fruit market at Gaddiannaram locality where he was carrying on his business as Commission Agent in fruits were vacant and therefore he could have as well settled his two sons in the said mulgis for their business. It may be noted here that Section 10(3)(a)(iii) of the Act and the second proviso thereunder of the Act would show that a landlord would be entitled to claim the leased out premises only if he is not in possession of any non-residential premises of his own. In view of this provision and the answer of the landlord the appellate authority held that three mulgis belonging to him at the above place are vacant his request based on the ground of bona fide requirement cannot be considered. 16. The learned counsel for the landlord pointed out that the above three mulgis are in Ranga Reddy District though it is geographically adjoining the Hyderabad city and the present petition schedule premises is situated in Jawaharlal Nehru Road, Hyderabad, in Hyderabad city and since the landlord does not possess any vacant non-residential premises in Hyderabad city he would be entitled to recover possession of the same for the business of his sons and consequently the fact that he owned mulgis in Ranga Reddy District cannot be a hurdle. I am of the opinion that there is sufficient force in this contention of the landlord’s counsel. It should be noted here that the tenant as R.W1 in his cross-examination admitted that the above property i.e. the three vacant mulgis of the landlord are situated in Gaddiannaram/ L.B.Nagar area and they come within the jurisdiction of Ranga Reddy District. The tenant has not been able to show that the landlord has got any mulgis in Hyderabad city. Then Section 10(3)(a)(iii) of the Act reads that a landlord would be entitled to possession of his leased out premises for his requirement if he does not possess any other premises in the city, town or village where the leased out premises is situate. Thus as the evidence on record does not show that the landlord has got any other premises in Hyderabad city except the petition schedule premises it can be safely concluded that the above first reason given by the appellate Court cannot be sustained. Perhaps this position was not taken to the notice of the appellate authority. 17. The second reason given by the appellate authority for negativing the contention of the landlord on this ground is that in the eviction petition the landlord pleaded that the petition schedule premises was required for commencement of fruit business of his sons whereas in his evidence the landlord came up with the plea that the premises was required for the dry fruit business of his sons. The appellate authority held that there is a lot of difference between fruit business and dry fruit business and therefore the landlord did not come up with a definite case in the pleadings regarding the bona fide requirement. It may be noted here that the landlord in his pleadings and the evidence first stated that he was doing fruit business that is business in fresh fruits and his sons assisted him in that business for sometime but later on did not show interest as they have their own ideas to start a business of their own and it was for that purpose the landlord pleaded that he required the petition schedule premises for their business. The appellate authority gave much importance to the above discrepancy. Further it also observed that in the petition schedule premises the tenant was running some electrical motors shop and in the mulgis in the neighbourhood also similar businesses were being carried on and that was not fit for fruit business either dry fruits or fresh fruits. 18. It may be noted that in RAGHAVENDRA KUMAR vs. FIRM PREM MACHINERY & CO.[4] the Supreme Court laid down that in the case of bona fide requirement of landlord the settled position of law is that the landlord himself is the best judge of his requirement for the leased premises and its suitability for the business proposed to be carried on and the tenant cannot have any say in it. Then in GARIPALLI RAJASREE vs. KONDAPURAM MALLESHA AND BROTHERS[5] it has been held by this Court that where the landlord seeks eviction on the ground of bona fide requirement such a request can be upheld and that even want of finance and know how for the business are no grounds to reject the request. The learned counsel for the landlord placed reliance upon the above two decisions in support of his client’s contention and in my opinion on the evidence in this case they do support the landlord’s case. 19. In the present case the petition schedule premises is stated to be suitable by the landlord for the business of his sons as the same is situated in Hyderabad city. There is also no evidence let in by the tenant to show that the landlord’s request cannot be considered to be bona fide. Going by the above decisions it can be said that the appellate Court was not correct in rejecting the landlord’s case with the above reasons which it gave. The learned counsel for the tenant however placed reliance upon PALICHETTY LATCHANNA vs. GIDUTHURI APPA RAO[6] in support of his contention. In the said case this Court laid down that the landlord’s plea regarding the business should be specific and he should also give the particulars of the business for which the premises is required and if they are not furnished that would be fatal to the eviction petition. This decision is distinguishable on facts for the simple reason that in the case on hand the landlord mentioned about the business and the requirement of his sons. 20. The other two decisions relied upon by the tenant’s counsel are LASWARAN CHETTIAR vs. K.SUBBARAYAN[7] and a decision of the Supreme Court given in SHRI GAUTHAM CHAND JAIN vs SMT SUSHILA KUMARI JAIN[8] wherein the proposition laid down is when alternative accommodation is available the landlord’s request cannot be considered for the tenanted premises for his business or requirement. There is no dispute about this proposition. In the present case as already seen supra the landlord no doubt possessed alternative accommodation in the farm of three vacant mulgis but they are in Ranga Reddy District as admitted by the tenant himself and they are not in the Hyderabad city which is considered to be a more busy area and in which the premises in question is situated. Hence the above two decisions relied upon by the tenant’s counsel cannot be of any help to the tenant. 21. One aspect which I must mention here is that it is common knowledge now that Hyderabad Municipal Corporation has been re-designated now as Greater Hyderabad Municipal Corporation covering certain areas which fall in Ranga Reddy District also but the tenant did not raise this plea. Apart from this the evidence on record shows that Hyderabad city where the petition schedule premises is situate nevertheless remains a more busy area when compared with the peripheral areas which constitute the Ranga Reddy District and the Court is bound to take judicial notice of the same. Hence basing on the decisions cited by the learned counsel for the landlord and the evidence on record it follows that the above two reasons given by the appellate authority for rejecting the landlord’s contention cannot be sustained. 22. Now turning to the discrepancy in the business, it is true that in the eviction petition the landlord merely mentioned fruit business and since his evidence shows that he is in fresh fruit business the pleading may suggest that he wanted the petition schedule premises for the fresh fruit business of his sons. However in the evidence he mentioned that his sons wanted to carry on fruits business and at another stage he stated that his sons wanted to carry on business in dry fruits. It may be noted that no great distinction can be drawn between fresh fruit business and dry fruit business as normally the sons of a person who is already in fruit business can be said to know about dry fruit business also. Added to this in GARIPALLI RAJASREE’s case (5 supra) it has been held that want of finance and know how for the business proposed to be commenced are no grounds to reject the landlord’s request. There is no reason to dissent from the aforesaid decision of this Court. Thus the reason given by the appellate authority making out distinction between dry fruit business and fresh fruit business cannot be a ground to reject the landlord’s request. 23. The other reason given by the appellate authority is that the landlord did not examine his two sons or at least one of them to support his plea about the bona fide requirement as he wanted the premises for their business and his failure to examine them is fatal. It is now well settled that where a landlord seeks eviction of the tenanted premises for the purpose of the business of his sons that can be treated as his bona fide requirement. There is no rule of evidence that in such a case the landlord should invariably examine his son or sons for whose business the eviction of the tenant is sought for. 24. It may be noted that where a landlord himself has given the details about the business proposed to be commenced by his sons and where he has entered the box and given evidence which sufficiently shows the requirement of his sons that is in my opinion sufficient to uphold the case of the landlord. In the present case the landlord has stated that he has got two sons and both have no avocation worth the name and that one of them is also married and is having a child and there is a need for him to settle his sons in the fruit business and the premises in question is required for it. The tenant could not elicit any thing from the landlord to disprove his case except pleading that his sons were carrying on business in a premises in the Ranga Reddy District area which is not enough to reject his case for the reasons already aforesaid. Thus in a situation like this in my opinion where the landlord has given all the details it cannot be said that his failure to examine his sons would become fatal for the eviction petition. 25. It may be noted that the Act no doubt has been enacted for the protection of tenants from the hands of unscrupulous and greedy landlords. At the same time the Act also provides for eviction of tenants on certain grounds which are considered to be reasonable and the bona fide requirement of the landlord for tenanted premises is one of the grounds for eviction. Not only this where the premises is restored to the landlord from the tenant on the ground of his bona fide requirement, Section 10(5)(a) of the Act says that where the landlord after obtaining possession for his business or other bona fide requirement