IN THE HIGH Court OF JUUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY NINTH (29TH) DAY OF MARCH, TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.676 of 2007 Between: Smt. Shakuntala Bai & others … Petitioners And: Hemraj Agarwal (died) by LRs … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.676 of 2007 ORDER: This revision petition is directed against the order dated 07.11.2006 in RA No.66 of 2005 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad, wherein, the said appeal filed by the petitioners herein/landlords, was dismissed, confirming the order dated 07.03.2005 in RC No.194 of 2003 on the file of III Additional Rent Controller, Hyderabad, wherein the said application filed by the petitioners herein for eviction of the respondent/tenant, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioners are the owners of the petition schedule mulgi and the respondent is the tenant, initially on a monthly rent of Rs.300/- under lease agreement dated 18.04.1987 payable on or before 5th of every succeeding month and subsequently, the rent was enhanced to Rs.750/-. According to the petitioners, the respondent paid rents till December 2002 on 11.01.2003 and subsequently, committed willful default from February 2003. The petitioners also pleaded that the schedule mulgi is required by the 2nd petitioner, son of the first petitioner, for starting a cloth business and the parents of the petitioners 2 and 3, who are aged persons, are staying in the same building, wanted the 2nd petitioner to be nearer to them in the schedule mulgi. The petitioners sought eviction of the respondent on the grounds of willful default of rent and also bona fide requirement for personal occupation of 2nd petitioner. 4. The respondent filed counter, admitting jural relationship of landlords and tenant and also quantum of rent, but denying that he committed any willful default in payment of rent. According to him, he paid rents till January 2003 and when offered rent for January 2003 in the month of February 2003, the petitioners refused to receive the same and the rent was sent by way of money order and the same was returned. The respondent got issued a legal notice on 23.02.2003 calling upon the petitioners to furnish bank account, but the petitioners failed to issue any reply. The respondent further pleaded that immediately on the date of first hearing, he offered rent and the same was received by the petitioner’s counsel. The respondent further contended that in the ground floor of the building, there are two mulgies in occupation of the tenants, namely Gulam Dastagir and Ayesa Collections and the rent for the premises occupied by Gulam Dastagir was enhanced to Rs.1250/- per month and the petitioners wanted the respondent also to similarly enhance, but the respondent did not agree for the same. The respondent further contended that in 2001, the mulgi in occupation of Shaik and Company, was let out to Ayesha Collections, whereas the backside portion was retained by the petitioners and if really, the 2nd petitioner intended bonafide to start business, he would have occupied the said premises. The respondent also pleaded that the petitioners are in occupation of another mulgi, in which they are running J K Textiles, wherein, 3rd petitioner is having business of his own at Secunderabad. The respondent therefore contended that the alleged requirement of the 2nd petitioner for personal occupation of the schedule mulgi is not bona fide. 5. The petitioners filed a rejoinder after amendment of the counter, stating that the landlord has choice to seek eviction of tenant from any of the mulgies for their personal requirement and the tenant cannot dictate the terms to the landlord. 6. During enquiry, PWs.1 and 2 were examined and Exs.P.1 and C.1 were marked on behalf of the petitioners. RW.1 was examined and Exs.R.1 to R.18 were marked on behalf of the respondent. 7. The learned Rent Controller framed the following points for consideration. (1) Whether the respondent committed default in payment of rents from January 2003 to April 2003 and if so, whether the said default is willful? (2) Whether the second petitioner requires the petition schedule premises for his occupation and whether the said requirement is bona fide? (3) Whether the petitioner is entitled to seek the relief for eviction? 8. On a consideration of the evidence available on record, the learned Rent Controller held on point No.1 that there is no default in payment of rent from January to April 2003 and the same does not amount to willful default in terms of section 10(2)(i). On point No.2, the learned Rent Controller held that the petitioners failed to establish that the premises is required bona fidely to the petitioners and accordingly the petition was dismissed. Aggrieved by the same, the petitioners-landlords preferred an appeal in RA No.66 of 2005. By impugned judgment, the learned Additional Chief Judge, dismissed the appeal and confirmed the findings recorded by the Rent Controller on both counts. Hence, the present revision by the landlords. 9. The first ground alleged by the petitioners while seeking eviction is that the respondent/tenant committed willful default in payment of rent from January 2003, till the date of filing of the petition. The tenant on the other hand contended that when he offered rent for January 2003 in the month of February, the same was refused and the money order sent by him was also refused and the notice issued by him on 23.04.2003 under Ex.R.15 to the landlord to furnish bank account particulars, evoked no response. The tenant filed Exs.R.3 to R.12 showing remittance of the rent by way of money order and the postal endorsements. According to the tenant, immediately after filing of the application for eviction and before the date of first hearing, he offered arrears of rent and the same was received by the counsel for the petitioners. On a consideration of the evidence on record, the learned Rent Controller held that the tenant made every attempt to offer the rent in time, but the petitioners themselves evaded to receive the same. It is also to be noted that within 15 days of receiving of notice Ex.R.15, wherein, tenant called upon the landlord to furnish particulars of the bank account, the petition for eviction was filed, without giving any reply to the said notice. The explanation offered by PW.1 that an empty envelop was received under Ex.R.15 without any contents was rightly rejected by the learned Rent Controller. If really such an empty cover was received, the landlord in the natural course of human conduct would have certainly questioned the tenant about the same. In fact, no such plea is also made in the petition. PW.1 categorically admitted in the chief examination itself that after filing of the eviction petition, the respondent through his advocate paid rents and also sent rents by way of money order and all the rents were received. Of course, he stated that the said rents were received under protest without prejudice to the contentions in the eviction petition. He further admitted that Rs.3000/- was received under money order dated 08.05.2003 and the same was adjusted towards future rent. The eviction petition was filed on 05.05.2003 and the rents were paid on 08.05.2003 even before the first hearing. It is well settled that every default does not amount to willful default. The landlord has to establish that the default committed by the tenant in the matter of payment of rent is willful i.e., intentional and deliberate. 10.In ‘J.Jermons vs. Aiammal & others[1]’, the Apex Court held that ‘willful default implies intentional or conscious violation of obligation to pay rent due, default occasioned on account of ignorance, accident or compulsion or circumstance beyond control of tenant cannot be termed as willful default.’ 11. Learned counsel for the petitioners relied upon the decision in ‘K.Afsarunnisa Begum (died) by LRs vs. K. Anasuya[2]’, wherein this Court held that ‘payment of rent after filing of eviction petition does not enure to benefit of tenants to ward of eviction’. In the above case, there was admittedly default of four months rent and after eviction petition was filed, arrears had been deposited. This Court held that in the absence of reasonable and acceptable explanation, unexplained default has necessarily to be taken as willful default. The above decision does not apply to the facts of the present case, for the simple reason that even prior to filing of the eviction petition, the tenant has offered rents for the period of January 2003 to March 2003 by way of money order, but the same was not received by the landlord and this conduct on the part of the tenant would certainly show his endeavour to pay the rents, negatives the contention of the landlord that there was willful default in payment of rents. 12. Admittedly, the rents for January to April 2003 were paid on 08.05.2003 in a sum of Rs.3000/- at the rate of Rs.750/- per month. In fact, the rent of April 2003 was payable by the end of May. Thus, by 08.05.2003, the rent due and payable was only for three months i.e., January to March. The evidence on record clearly establishes that for the said months, the tenant offered the rent by way of money order, but they were returned. When the tenant issued a notice calling upon the landlord to name a bank so that he can deposit the rents to his account, the landlord failed to respond, but filed petition for eviction within 15 days thereafter. It cannot therefore be said that there was any willful default on the part of the tenant in payment of rent for the period from January to April 2003. Both the courts below have on proper appreciation of the evidence on record rightly held that the tenant is not liable to be evicted on the ground of willful default, as the same is not established by the landlord. 13. Regarding the other ground of bona fide requirement for personal occupation of the 2nd petitioner, the landlords pleaded that the mulgi is required for starting a cloth business by the 2nd petitioner. The tenant would contend that the alleged requirement is not true and is not bona fide, as the landlord is having other premises also, which he can choose from and in fact, when a portion of mulgi occupied by Ayesha collections, fell vacant, the landlord did not occupy the same. The landlord filed rejoinder contending that it is not open to the tenant to suggest the premises which he should occupy and the landlord is at liberty to choose the premises suitable to him for the proposed business. It is well settled that the landlord can choose the premises from among various premises, which according to him is most suitable for his proposed business. 14. According to the landlord, the 2nd petitioner, who is examined as PW.2, was un-employee and he proposes to start a cloth business in the petition schedule. By the date of filing the eviction petition, PW.2 was aged 44 years. He has not filed any documents revealing his intention to start cloth business nor any preparation made in that regard. PW.1-3rd petitioner is none-else than the younger brother of PW.2. Admittedly, PW.1 is carrying on business in the name of Akshya Textiles since 1986 in a mulgi of their own. He further admitted that the landlords are carrying on business in the name of J K Textiles. Exs.R.1 and R.2 the bills of J K Textiles, show that they were issued by PW.2 himself under his signature. PW.2 sought to give explanation for the same, saying that he was assisting his father in the business and therefore, he happened to sign them. The said plea was never raised earlier and was put-forward for the first time in the cross- examination to some how get over Exs.R.1 and R.2. Again there is no evidence adduced by PW.2 to show that JK Textiles is the exclusive business of their father. The evidence on record, therefore establishes that PW.2 was also doing business along with PW.1 in the name of J K Textiles at Patel Market, Hyderabad. 15. In the counter, the tenant pleaded that the landlords are having other mulgies at Ricab Gunj, Tobacco Bazar and Patel Market. In the rejoinder, the landlords denied same, but in evidence PW.1 admitted that there is one mulgi at Tobacco bazaar in the name of his father and in the building at Ricab Gung, there are seven shops and residential portions. The petitioners have not disclosed the existence of other mulgies of their family in their petition and how they are not suitable. The petitioners have totally suppressed the factum of their family having other mulgies and their particulars in the petition. 16. In ‘Kishan Chand vs. Jagdish Pershad & others’ (2003(9) SC P.151) referred to in the impugned order, the apex Court held that ‘concealment of material facts by the landlord in a petition filed for eviction of the tenant on the ground of bona fide requirement is sufficient reason for rejecting the petition for eviction on the ground of bona fide requirement.’ 17. According to the petitioners, the schedule mulgi alone is suitable and convenient, because, the aged parents of 2nd petitioner are residing in the same premises. There is however no evidence as to how the schedule premises alone is suitable for the proposed business of the 2nd petitioner. According to PW.2, since three years prior to filing of the eviction petition, he has not been doing any business, though earlier, he was doing cloth business at Secunderabad. The eviction petition was filed in the year 2003. Admittedly, the mulgi adjacent to the schedule premises fell vacant in 2001, but PW.2 did not occupy the same, though according to him, he was un-employed, even at that time. On the other hand, it was let out to Ayesha Textiles. This circumstance also tends to negate the plea of bona fide requirement of the schedule premises. No doubt, it is well settled that the landlord can choose from among several premises the one most suitable to him and it is not for the tenant to dictate as to which of the premises the landlord has to choose. However, the landlord is not absolved of the burden to establish that he first of all proposes to start business and that the schedule mulgi alone is suitable and convenient to him. In the present case, the petitioners have failed to establish that the 2nd petitioner-PW.2 in fact, intended to start business and that the schedule mulgi alone was convenient. On the other hand, the evidence on record and particularly, the conduct of the petitioners in not disclosing the particulars of the other premises belonging to them and in not occupying the premises adjacent to the schedule mulgi, when it fell vacant in the year 2001 and on the other hand, letting out the same to others, clearly disprove the plea of bona fide requirement put-forward by the petitioners. The Courts below have on proper appreciation of the evidence available on record rightly held that the requirement pleaded by the landlord cannot be construed as bona fide requirement and therefore, they are not entitled to seek the eviction of the tenant. The impugned orders of the Courts below, dismissing the application for eviction do not, therefore, call for any interference by this Court. 18. In the result, the civil revision petition is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 29.03.2011 bss [1] 2000(1) RCJ P.94 [2] 2006(4) ALD 495