IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 22nd DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.4033 of 2006 BETWEEN: Syed Mashooq … APPELLANT(S) And Iqbal Ali … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.4033 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 15.06.2006 of the Additional Chief Judge, City Small Causes Court, Hyderabad (appellate authority under the Act) allowing the tenant’s appeal R.A.No.159 of 2003 and dismissing his eviction petition, the landlord has come up with this revision. 2. The eviction petition schedule premises is a residential house. The agreed monthly rent was Rs.150/-. There is no dispute regarding landlord-tenant relationship. 3. The landlord brought the eviction petition RC No.445 of 2000 on two grounds. The first is wilful default in payment of rents from January 1999 to the date of filing of the eviction petition i.e. 14.11.2000. This first ground falls under Section 10(2)(i) of the Act. The second ground is bona fide requirement falling under Section 10(3)(a) of the Act. The I Additional Rent Controller, Hyderabad, who tried the eviction petition by her order dated 10.02.2003 held that the landlord failed to prove wilful default in payment of rent upto the date of filing of eviction petition but upheld the said ground holding that there was default subsequent to the filing of the eviction petition. The Rent Controller also upheld the plea of bona fide requirement and thus she allowed the eviction petition. 4. In the tenant’s appeal the appellate authority held that it need not go into the question of default in payment of rents upto the date of eviction petition as the landlord did not file any cross-appeal against that finding of the Rent Controller. Regarding the conclusion of the Rent Controller that the tenant is liable to be evicted for default subsequent to the date of the eviction petition, the appellate authority held that in such a case the landlord has to proceed under Section 11 of the Act and apply for possession for committing default in payment of rents after the filing of the eviction petition and that he cannot be granted the relief of eviction on the ground of wilful default pleaded in the eviction petition. In holding so the appellate authority relied upon a decision of this Court given in CHIKKAM SATYANARAYANA vs. SAMISETTY SUBBARAO[1] and a full bench decision of this Court given in VINUKONDA VENKATA RAMANA vs. MOOTHA VENKATESWARA RAO[2]. A perusal of the judgment of the appellate authority so far as this aspect is concerned would show that there is no compelling reason to interfere with the same as the Rent Controller and also the appellate authority concurrently found that there is no wilful default in payment of rent before the filing of the eviction petition. 5. The learned counsel for the landlord however placed reliance upon a decision of the Supreme Court given in M.BHASKAR vs. J. VENKATARAMA NAIDU[3] and argued that basing on this decision the case of the landlord regarding wilful default should be accepted. The proposition laid down in this decision is that where the landlord was evading receipt of rent offered by the tenant, the tenant should follow the procedure prescribed under Section 8 of the Act and having not followed that procedure it was not open for the tenant to plead that landlord should have availed the procedure under Section 11 which speaks about default after filing of the eviction petition. This judgment is a short judgment and shows that the eviction was confirmed in view of the failure of the tenant to follow the procedure under Section 8 of the Act regarding rents payable prior to the eviction petition. In any event this decision does not support the case of the landlord. The Rent Controller and the appellate authority concurrently found that there was no wilful default prior to the filing of the eviction petition. The appellate authority found in favour of the landlord for the reasons already aforesaid and therefore it does not suffer from any infirmity. 6. The second ground of bona fide requirement has now to be considered. Both the Rent Controller and the appellate authority concurrently found that the premises in which the landlord was residing on the date of the eviction petition in Kingkothi locality of Hyderabad is a rented premises and does not belong to him and thus the case of the tenant in that behalf was rejected. There is no reason to disturb that finding also. It may however be noted that in the eviction petition the plea of the landlord was that he is a retired government servant and has been living in the rented premises and therefore requires the petition schedule premises for his bona fide requirement i.e. residence. 7. The averments in the eviction petition do not anywhere show that he is in occupation of a part of the petition schedule premises. In fact the landlord sought for eviction on the ground mentioned in Section 10(3)(a)(i)(a) of the Act which says that the landlord can seek eviction on the ground of bona fide requirement for his residence if he is not in occupation of a residential building of his own in the concerned city or town or village. This pleading shows that the landlord came up with the case before the Rent Controller that he is not in occupation of any portion of the scheduled premises. 8. The landlord as P.W1 however in his cross-examination admitted that he is in possession of one room in the petition schedule premises which consists of four rooms. The appellate authority basing upon this admission of the landlord concluded that the landlord suppressed the above factum of his being in possession of above one room in the petition schedule premises and that if he is in possession of one room which can be treated as a part of the petition schedule premises he should have filed eviction petition under Section 10(3)(c) of the Act on the ground of requiring additional accommodation. The appellate authority further held that when the provision relating to requirement of additional accommodation is invoked the criteria for eviction would be different and in that case the comparative hardships of the landlord and tenant have also to be considered and that since the landlord did not seek eviction on that ground the tenant must be held to have been prejudiced in his defence to lead evidence regarding comparative hardships and therefore the landlord’s plea for the bona fide requirement should be rejected. 9. The learned counsel for the landlord could not show any circumstance or ground to hold that the above finding of the appellate authority is a perverse finding or is otherwise illegal. It may be noted that when a landlord is in occupation of a part of the premises out of which the remaining part is leased out, the landlord should bring the eviction petition under Section 10(3)(c) of the Act and this is the normal rule and he cannot seek eviction of the tenant on the plea of bona fide requirement on the ground that he is not in occupation of any building of his own. As held by the appellate authority when the eviction is sought on the ground of requirement of additional accommodation the criteria for ordering eviction would be different and the Court has to assess about the comparative hardships of the landlord and tenant as stipulated in the first proviso to Section 10(3)(e) of the Act. For that purpose the tenant has to be given an opportunity to lead his evidence regarding the comparative hardships. The tenant cannot have this opportunity unless the landlord comes forward with a specific pleading. The appellate authority basing upon this ground rejected the claim of the landlord on the second ground. 10. Having regard to the plea of the landlord, I have also seen Section 10(3)(a)(i)(b) of the Act to examine whether his case can be brought under the said provision even in the absence of specific mention of that provision. Section 10(3)(a)(i)(b) of the Act says that if the landlord who has more buildings than one in the city town or village concerned is in occupation of one such buildings and he bona fide requires another building instead for his own occupation he can seek eviction on that ground also. It may be noted that to apply this clause the landlord should be in possession of another building of his own but not a part of the building or premises leased out even if the word ‘instead’ is interpreted as ‘in addition to’. Now if the landlord is already in occupation of a part of the building leased out he has to apply for eviction of the tenant from the remaining part on the ground of additional accommodation as contemplated under Section 10(3)(c) of the Act. Thus it follows that the landlord has to fail on this ground of bona fide requirement also for the aforesaid reasons. The decisions cited by the landlord’s counsel do not cover a situation like this and are not helpful to him. 11. Accordingly for the aforesaid reasons it follows that the landlord has to fail. This revision is therefore dismissed confirming the order of the appellate authority. No costs. _______________________ N. RAVI SHANKAR, J. 22nd February 2011 CVRK [1] 1994 (1) AnWR 291 [2] 2001 (6) ALD 27 (FB) [3] (1996) 6 SCC 228