THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4159 OF 2011 Dated 29-10-2011 Between: Vandana Automobiles, represented by V.Narsing Rao and another. ..Petitioners. And: Laxmamma and others. … Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4159 OF 2011 ORDER: This appeal is directed against the decree and judgment dated 10-8-2011 passed by the learned Chief Judge, City Small Causes Court, at Hyderabad in R.A.No.310 of 2010 whereby and whereunder, the learned Chief Judge, City Small Causes Court, at Hyderabad, dismissed the appeal confirming order dated 6-9-2010 in R.C.No.127 of 2009 passed by the learned 1st Additional Rent Controller-cum-XIII Junior Civil Judge, Hyderabad. The petitioners 1 and 2 herein are the tenants and respondents 1 to 4 herein are the landlords of the petition schedule premises. Heard both the learned counsel and perused the material available on record. Sri A.M.Qureshi, learned Counsel for the petitioners/tenants raised some important issues in this revision. His main submission is that since non-ostensible words “not withstanding with anything contained in any other law and provisions” are not used under Section 10- C A.P.Buildings (Lease, rent and Eviction) Control Act, 1960 (hereinafter referred to as “the Act”.), the said provision cannot be considered independently and it has to be considered along with section 10 (3) (a) (iii) (a) of the Act. His next submission is that once a landlord exercised his option to recover possession of the property under Section 10-C of the Act, he or she cannot again seek recovery of possession since he can exercise the option once only. As far as the merits of the case are concerned, his submission is that the burden lies on the landlady to prove that she bonafidely requires the schedule property and burden never shifts on to the tenants and even if any admission is there on the part of the tenant, that cannot be taken into consideration. Referring to the admissions said to have been made by the tenants, it is his submission that the tenants did not make any such admissions but, R.W.1 was giving answers to the suggestions given to him by the other side counsel and therefore, the said portion of his evidence has to be considered keeping in view the suggestions given to him. Sri Adesh Varma, the learned counsel for the respondents submits that explanation II of Section 10 C of the Act refers to the right to recover possession under this Section and it shall be exercisable only once in respect of each for residential and non-residential use and therefore, even if the landlady has exercised her option once under explanation II of Section 10 C of the Act for residential premises, that will not come in her way of exercising option in respect of non-residential premises. Thus, his submission is that the word “once” has to be interpreted as once for residential and once for non- residential. It is also his submission that the landlady has adduced evidence in support of her bonafide requirement of the petition schedule property in question and that she has three sons who are now privately working, but she wants to see them to have their own independent business and settle in their life. Apart from that, it is also his submission that it becomes a moral and legal obligation of a parent to support his or her children and to see that they are settled in their life and the requirement of the children or any dependent on the landlady has to be considered as the requirement of the landlady/landlord. It is also his submission that at the time of cross examination, the witness gave answers to the suggestions. It is also his submission that entire evidence has to be taken into consideration and if the answers given to by a witnesses in the cross-examination are not taken into consideration, the very purpose of cross- examination will be defeated. The landlady has shown her age as 66 years on the date of filing of the case and the same is also admitted by the tenant in the evidence. The landlady sought eviction of the tenants from the petition schedule property under Section 10(2)(I), 10(3)(iii) (b) and 10 C (1)(c) of the Act. One of the contentions of the landlady is that the tenant committed willful default and in this regard, the appellate authority negatived her contention but she has not filed any separate revision questioning the said finding. Therefore, the same has become final and there is no need to discuss about the same. The case of the landlady in brief is that she is the owner of all the ground floor mulgies and first floor of the petition schedule premises situated at Afzalgunj, Hyderabad and that the tenants obtained the ground floor mulgi bearing No.15.9.419 and in the first floor bearing Nos.15.9.418 and 419 by executing a rental agreement dated 8.3.1973. Later on, the tenants executed another renewal lease deed dated 20.1.1994. Earlier, the tenant was carrying on Vandana bar and restaurant business in the said mulgies and subsequently, they changed the nature of the business and now they are carrying on business under the name and style of Vandana Automobiles and that at the time of execution of renewal of lease deed dated 20-1-1994, the tenant has handed over the first floor portion but retained the ground floor mulgis with two shutters, one hall, one store room and WC and for the sake of convenience, separate house number i.e. 15-9-419/A was assigned to the said partition. The present monthly rent is Rs.1460/- exclusive of the electricity charges. It is her further case that she requires the schedule premises bonafidely for the purpose of commencing and carrying on business Rexene and foam including flooring matting, door mattings and other ancillary goods and that the adjoining mulgi No.15-9-418 is in the occupation of another tenant i.e., Bharath Bottles and that she is not in possession of any other non-commercial premises for the proposed bonafide requirement of carrying on business by her sons and that since she is a senior citizen, she is entitled to claim eviction under Section 10 C (1) (c) of the Act. It is her further case that the tenant paid the rent upto December, 2008 and thereafter, withheld the rent from January, 2009. It is also her case that the tenant has sent the rent by enhancing it to 10% by way of Money order from January, 2009 to create false defense and at no point of time, the petitioner agreed to enhance the rent at 10% subsequent to December, 2008 and so, the tender of rent by money order is invalid and hence, the tenant is liable for eviction from the petition schedule property and that she resided in the first floor after surrender of the said portion by the tenant and that she has converted the same into residential one and that she stayed till 2003 and thereafter, she let out the same to another tenant as residential portion. It is her further case that she also obtained water connection for the 1st floor portion for domestic purpose and so the 1st floor portion which is let out for residential purpose now cannot be used for commercial purpose. It is also her case that there is a narrow passage which leads to the 1st floor and the footpath is occupied by hawkers and it is very difficult to reach to the 1st floor portion and it is not fit for proposed business. Respondent filed counter inter-alia contending that the agreed rent was Rs.1650/- per month and was agreed to be enhanced by 10% every year; that originally, the tenant was in occupation of ground floor mulgi and also two mulgies in the 1st floor and at the request of the landlady, he has handed over the 1st floor mulgies under the lease deed dated 20-1-1994. It is further contended that the landlady has to prove that her sons bonafidely require the ground floor. It is further argued that sons of landlady are working in Prabhath company and Hari Hara Lorry Transport and the contention of landlady is not correct. It is further submitted that even though the tenant was sending the rents since January, 2009 by money orders, but the landlady refused to receive the rent. It is also argued that the landlady never resided in the 1st floor nor converted the same for residential purpose and that she cannot covert the non- residential premises into residential premises without the permission of the competent municipal authority and thus, the application filed by the landlady is not maintainable and the same is liable to be dismissed. During the course of enquiry, the Rent Controller framed the following points for consideration: 1. Whether the quantum of rent is Rs.1460/- per month or Rs.1650/- per month in respect of the schedule premises? 2. Whether the respondent has committed willful default in payment of monthly rent as prayed for? 3. Whether the petitioner requires the schedule premises for his personal occupation? Before the Rent Controller, during the course of enquiry, on behalf of landlord, P.Ws.1 and 2 were examined and Exs.P.1 to P.19 were marked. On behalf of the tenants, R.W.1 was examined and Ex.R.1 was marked. The learned Rent Controller, on appreciation of oral and documentary evidence and having observed that the landlady has established her case and that she can seek eviction of the tenants under Section 10 C (1) (c) of the Act, allowed the petition. Aggrieved by the same, the tenants preferred an appeal before the appellate authority i.e., learned Chief Judge, City Small Causes Court, at Hyderabad and the learned Chief Judge, on reappreciation of evidence, dismissed the appeal confirming the order impugned therein. Aggrieved by the said dismissal of the appeal, the tenants preferred this revision. The point that arise for consideration is: (1) Whether both the provisions under Sections 10 (2) (i) and 10 (3) (iii) (b) and 10 C (1) (c) of the A.P. Buildings (Lease, rent and Eviction) Control Act are read together? (2) Whether landlady boanfidely require the premises? POINT No.I: Section 10-C of the Act reads as follows: “Right to recover immediate possession of premises to accrue to a widow:-- (1) Where the landlord is,- (a) a widow and the premises let out by her, or by her husband; (b) a handicapped person and the premises let out by him; (c) a person who is of the age of sixty-five years or more and the premises let out by him; or her; is required for use by him or her or for his or her family or for any one ordinarily living with him or her as the case may be for use he or she may apply to the Court for recovery of immediate possession of such premises. (2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub- section in respect of any one residential and one non- residential premises each chosen by him.” The explanation II to the above referred Section reads as follows: “The Right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use.” It is our experience that several matters have been pending before the Courts for years together and there are cases where the litigation has been pending for decades together and even after 20 or 25 years, for several reasons, we are not in a position to dispose of those cases. A person who enters into litigation in middle age is unable to get relief during his life time and ultimately, several L.R. applications are being filed. Thus, it is clear that the senior citizens are unable to see the result of the litigation and even if the matter is decided ultimately, they will not be in a position to enjoy the fruits of the decree. Thus, the object of these special provisions under Section 10 C (b) appears to be to give immediate relief to the senior citizens. Therefore, the intention of the legislature, to my mind, appears to be clear that Section 10-C and 10 (2) (i) and 10 (3) (iii) (b) cannot be read together. Since Sections 10-A, 10-B and 10-C have been specially made for the specific purpose to deal with the cases of the persons specified in those sections for their benefit, those provisions have to be read separately. If they are read together, the purpose of enacting those provisions will be defeated. Therefore, I am of the view that the widow landlady can independently seek eviction of the tenant under Section 10 C of the Act without any reference to the other provisions of the Act. This point is answered accordingly. Learned Senior Counsel Sri A.M. Qureshi relied on a decision of the apex Court reported in PALICHETTYI LATCHANNA vs. GIDUTHURI APPA RAO[1] in support of his contention that the landlord must specifically mention the nature of business she wants to start in the petition schedule property. He has also relied on a decision reported in MUNIAMMAL AND OTHERS vs. R. SUNDARA MAHALINGAM[2] wherein, it was held that at the time when the landlord required the non-residential premises for the purpose of carrying on his own business or in order to obtain benefit under S.10(3) (a)(iii) of the Act, he should establish that he had been carrying on business on the date when petition for eviction has been filed. He also further relied on a decision of the apex Court reported in G. NARAYANA vs. GOGIKAR KISHANJI[3]. There cannot be any dispute with regard to the principles laid down in these decisions but burden lies on the landlord/landlady to prove that the premises is bonafidely required by him/her. Learned counsel for the respondents relied on a decisions reported in RAGAVENDRA KUMAR v. FIRM PREM MACHINERY & CO. [4]. He has also further relied on a decision reported in DEEP CHANDRA JUNEJA v. LAJWANTI KATHURIA (SMT) (DEAD) THROUGH LRS.[5] He also further relied on a decision reported in MADHYAHANNAPU NARASIMHARAO v. SUNKARA SRIRAMA HANUMANTHA RAO (DIED) PER LRs[6]. Though I have held that landlady can independently seek eviction of the tenant under Section 10-C of the Act, however, even on facts, it appears that the landlady has proved her case that she bonafidely requires the premises. It is not in dispute that the premises consists of first floor and ground floor. It is also not in dispute that the tenant has surrendered the first floor, The landlady has adduced oral and documentary evidence which shows that now, the first floor is being used residential premises. She has opened a kitchen there and now let out the same to another tenant for residential purpose. Therefore, a reading of evidence gives an impression that the version of the landlady that the 1st floor is now being used as residential premises has to be upheld. Now the question is whether the explanation II of section 10 C of the Act comes to the rescue of the tenant. Explanation II reads that the right to recover possession under this section shall be exercisable only once in respect of each for residential and for non- residential use. The premises was non-residential when the tenant had surrendered the possession of the first floor premises to the landlady. Now the question is as to whether a landlady can convert the non-residential premises into a residential premises as far as the use of any premises by any landlady is concerned. It appears that the settled legal position is that the landlord is master of his choice in modifying the nature of use and that the landlord may use any premises as per his requirement or the way which is best according to him or which is beneficial to him. He is master of his own choice. Of course he has to intimate the authorized officer about the same and seek permission as per law. Therefore, from the evidence it is clear that as on today, the first floor is being used as residential premises. Moreover, there is another factor ie.., when the tenant was in the witness box and when he was asked to take first floor for non-residential purpose, he refused to take it for non-residential purpose. Thus, it is clear that even according to the tenant, the first floor, as of now, cannot be used for non-residential purposes. Moreover, it is common knowledge that the premises on the ground floor would be much more useful for non- commercial purposes and whenever any business has to be commenced by any landlord, he would naturally prefer the ground floor. Now the 2nd point raised by Sri Qureshi is that since the landlady has already exercised her option of taking possession of first floor, now she cannot again exercise the said option under Section 10 C of the Act. Admittedly, the age of the landlady is not in dispute. In 2009 i.e., at the time of filing Rent Control Case, her age is shown as 66 years. Admittedly, first floor was handed over in the year 1994. Thus, it is clear that in the year 1994, the landlady was not a senior citizen and moreover, there was no such provision as 10 C of the Act in 1994 and therefore, even if the tenant had surrendered the premises in 1994, that cannot be said to be an option exercised by the landlady under Section 10 C of the Act. Therefore, handing over of possession of the 1st floor in the year 1994 will not come in the way of the landlady seeking the premises under Section 10 C of the Act which came into force with effect from 28-5-2005, as per the amended Act 17 of 2005. Moreover, the words used as “once in respect of each for residential and for non- residential use” also come to the rescue of landlady because when there are two premises one residential and other is non-residential, she can exercise her right to recover possession once in respect of each for residential and for non-residential use. Coming to the evidence, the learned counsel for the landlady has taken me through the evidence let in and also admissions made by the tenant. Moreover, both the courts have concurrently gave a finding with regard to bonafide requirement of landlady. Even if it is accepted that sons of the landlady are working in transport or any some other company, that does not come in their way of commencing their independent business. Therefore, on the issue of bonafide requirement also, I do not see any ground to consider the case of the tenants and moreover, the evidence of P.Ws.1 and 2, as held by both the Courts below clearly goes to show that landlady has proved that she bonafidely require the premises. Therefore, even if we do not take into consideration the admissions made by the tenant as pointed out by the learned counsel for the landlady, it can be said that the petitioner landlady independently proved her bonafide requirement. Therefore, I do not see any reason to interfere with the impugned order and as such, this revision is liable to be dismissed. Accordingly, Revision is dismissed. No costs. However, the tenant is granted time till 31st December, 2011 to vacate and handover vacant possession of the petition schedule premises to the landlady. ____________________ B. CHANDRA KUMAR, J. Date: 29-10-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4159 OF 2011 Dated 29-10-2011 [1] AIR 1983 AP 244 [2] AIR 1991 MADRAS 55 [3] 1988-APLJ-2-43 [4] (2000) I SCC 679 [5] (2008) 8 SCC 497 [6] 2008 (4) ALT 38