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Tuesday, January 22, 2013

Section. 10(3) of the act in so far as it is relevant, is extracted below: "Section 10: Eviction of the tenants:- (1) .... (2) .... (3) (a) .... (b)..... (c) a land-lord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the land-lord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be. .... Provided that, in the case of an application under (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting will outweigh the advantage to the landlord;" - Whether it is the duty of the landlord to produce evidence that there is no hardship to the tenant to evict him from the subject premises . In fact the burden is clearly on the tenant to prove his hardship in view of the Judgments in K. Parasuramaiah's case (1 Supra) and B. Rukmaiah's case (2 Supra) mentioned above.


THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

C.R.P.No.750 of 2007

04.01.2013

Danduboina Madhava Rao  

Kandi Atchiraju (died) And others.

Counsel for the petitioner: Sri E.V.V.S Ravi Kumar,

Counsel for respondent  : Sri Jyosula Bhaskara Rao, Advocate

<Gist:

>Head Note:

?Cases referred:
1. AIR 1965 AP 220.
2. 2009(2) ALD 264.
3. 2000(1) ALD 627.
4. 1997(3) ALT 302
5. 1998(7) SCC 138.

ORDER:

1)      This revision is filed by the landlord under Section 22 of the Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the
Act") challenging the order dated 08-11-2005 in R.C.A.No.16 of 1995 of the
Principal Senior Civil Judge, Kakinada (appellate authority under the Act)
confirming the order dated 10-07-1995 in R.C.C No.17 of 1988 passed by the
Principal Rent Controller (Principal District Munsif), Kakinada.

2)      The petitioner herein is the owner of a shop room (hereinafter referred to
as 'the RCC schedule shop') in a building bearing Municipal No.54-1-12 in
Jagannaickpur, Kakinada. The respondent was the tenant of this shop. The
petitioner had inherited it in a partition with his brother in November, 1980.
Along with this shop there were two other shop rooms facing the road on the
South of that building which the petitioner had inherited.

3) In the first week of January, 1987 requested the tenants of all the three
shop rooms (including the RCC schedule shop) to vacate as he bonafidely required
them for his own personal occupation for starting a general and fancy stores in
all the three shop rooms, after combining them and after making necessary
alterations to suit his convenience.  A tenant by name T. Laxman Rao (tailor) of
one of the other shops agreed to vacate but the respondent and other tenant
Kovvuri Gannemma, tenants of the RCC schedule shop and the other remaining shop  
respectively gave evasive replies.

4)      The petitioner therefore filed R.C.C.No.17 of 1988 before the Rent
Controller (Principal District Munsif) Kakinada under Section 10  of the Act
contending that he bonafidely required the RCC schedule shop for doing business
in fancy and general stores; that the respondent was not regular in payment of
monthly rents and that the respondent is a regular willful defaulter in payment
of monthly rents and is liable to be evicted.

5)      The respondent filed a counter denying the said averments contending that
he is doing a business of sale of cigars in the RCC schedule shop; that the
petitioner really do not have any bonafide need or intention to start the
business in fancy and general goods; that he was not a willful defaulter in
payment of rents; that he would suffer great hardship and lose his livelihood if
eviction is ordered.

6)      The Rent Controller recorded the evidence of PWs 1 and 2 and RW-1 and
marked Ex.A.1 to Ex.A.3.

7)      By order dated 10-07-1995, the Rent Controller-cum- Principal District
Munsif, Kakindada dismissed the R.C.C.No.17 of 1988 filed by the petitioner
herein, on the ground that the petitioner had failed to prove:
(i) his avocation prior to filing of the petition for eviction,
(ii) that he had experience in doing fancy business,
(iii)  that he was separated from his premises and demised premises fell into
his share and
(iv) that he required to do the business to maintain his family.

8)      Challenging the same, petitioner filed an appeal R.C.A.No.16 of 1995
before the Principal Senior Civil Judge Kakinada (the Appellate Authority under
the Act) . By order dated 31-03-1999, the said appeal was dismissed.

9)      Challenging the same, the petitioner filed Civil Revision Petition No.2704
of 2009 before this Court.  The said Civil Revision Petition was disposed of on
27-07-2005 by setting aside the order dated 31-03-1999 in R.C.A.No.16 of 1995
and remitting back to the Appellate Authority to consider  the petitioner's need
for the RCC schedule shop in occupation of the respondent is one for "additional
accommodation"  or not in view of the fact that the shop in occupation of the
tailor  had  been vacated and the other shop was also taken possession by filing
an eviction petition and to consider the  relative hardship .   It was held
that the concurrent findings of the Rent Controller and the Appellate Authority
regarding the ground of willful default are confirmed and the said issue cannot
be reagitated by the landlord.  It was also observed that the Appellate
Authority should give opportunity to both the parties to let in further evidence
on the aspect of bonafide requirement for additional accommodation  if they
desire to do so.

10) Thereafter the appeal R.C.A.No.16 of 1995 was again restored to file of the
Rent Controller Authority-cum- Principal Senior Civil Judge, Kakinada.

11) The petitioner then amended the RCC petition and added paras VI A and B
contending interalia that each of the three shops is small in area and one shop
room is not sufficient; that the tailor shop is the smallest one and not
suitable for the proposed fancy and general stores business of the petitioner;
that unless the petitioner is put in vacant physical possession of the three
shop rooms including the RCC  schedule shop, it is not  possible for the
petitioner to start the fancy and general stores business; that the above three
shops together are best suited for  the petitioner's proposed business; that the
petitioner has no other building in Kakinada except the said shop; that the
petitioner was having no avocation at that time and is well experienced in the
said business as he was previously managing his brother's shop Ganga Fancy
stores.  Petitioner therefore contended that he bonafidely required the RCC
schedule shop room for his own personal requirements and for starting fancy and
general stores business.

12) The said appeal was again dismissed on 08-11-2005 by the Appellate Authority
on the ground that the proviso relevant to Section 10(3) (c) dealing with
additional accommodation enjoins the Rent Controller to examine the issue of
hardship which may be caused to the tenant if eviction were to be ordered as
against the advantage to the landlord; that no evidence is adduced in that
regard by the landlord; that as per the evidence of the petitioner, he was
already having a shop after getting vacated one tenant and that he is not using
that shop; that he is again asking eviction of the respondent for additional
accommodation by way of bonafide requirement; that it is the duty of the
landlord to produce evidence that there is no hardship to the tenant in order to
get him evicted; that the tenant is running a cigar shop and eking out his
livelihood from his shop; that landlord must prove that the building in
occupation of tenant is part of the building and it is required for the landlord
to run business and to expand the business and that there is no such evidence
adduced by the landlord.  He also held that there is no pleading or proof from
the landlord even after remand as to comparative hardship; that the tenant had
clearly deposed that he had no other source of income except the cigar business
and therefore he would be put to hardship if he is evicted from the petition
schedule premises and the appeal therefore should be dismissed.

13)  Challenging the said order of the Appellate Authority-cum- Principal Senior
Civil Judge, Kakinada, the present Civil Revision is filed by the petitioner.


14)  Heard Sri E.V.V.S Ravi Kumar, Learned Counsel for the petitioner and Sri
Josyula Bhaskara Rao, Learned Counsel for the respondent.

15) The learned Counsel for the petitioner submitted that the Appellate
Authority erroneously placed the burden of proving that there is no hardship to
the tenant on the petitioner seeking additional accommodation; that it was for
the tenant to prove the said fact; that the tenant had failed to adduce any
evidence in regard there to; that the Appellate Court erred in holding that the
petitioner had failed to prove that the building in occupation of tenant is part
of the building owned by him; and that as per Law, in a case of bonafide
requirement where the landlord asserted that there was no other means of
livelihood and that he wanted to set up his business in the premises in dispute,
the landlord cannot be compelled to resize the nature of the business which he
intends to start. He relied upon the Judgment of this Court in K. Parasuramaiah
Vs. Pokuri Lakshmamma1 and B. Rukmaiah Vs. M.A. Samad2.      

16)  Sri Josyula Bhaskara Rao on the other hand contends that the Appellate
Authority has rightly rejected the appeal filed by the landlord; that two shops
are vacant adjacent to the RCC schedule shop and the landlord had not adduced
any evidence to show that the said shops together are not sufficient to do the
business proposed by the landlord; that the hardship which is caused to the
tenant/ respondent outweighs the advantage to the landlord/ petitioner.  He
relied upon the Judgments in Jyothi Automobiles, Hyderabad and others Vs. Khet
Bai and another3, Laxmi Bai and others Vs. Yashoda Bai and others4 and B.
Kandasamy Reddiar Vs. O. Gomathi Ammal5.    

17)  I have noted the respective contentions.

18)  Section. 10(3) of the act in so far as it is relevant, is extracted below:
        "Section 10: Eviction of the tenants:-
        (1) ....
        (2)  ....
        (3) (a) ....
              (b).....
       (c) a land-lord who is occupying only a part of a building, whether
residential or non-residential, may, notwithstanding anything in clause (a),
apply to the Controller for an order directing any tenant occupying the whole or
any portion of the remaining part of the building to put the land-lord in
possession thereof, if he requires additional accommodation for residential
purposes or for the purpose of a business which he is carrying on, as the case
may be. 
....
Provided that, in the case of an application under (c), the Controller shall
reject the application if he is satisfied that the hardship which may be caused
to the tenant by granting will outweigh the advantage to the landlord;"

19)  In B. Kandasamy Reddiar's case (5 Supra), the Supreme Court held that while
dealing with the question of eviction of a tenant on the ground of requirement
of additional accommodation, it is mandatory to consider the proviso mentioned
above in Section 10.

20)  In K. Parasuramaiah's case(1 Supra) a Division Bench of this Court held
that the hardship of the tenant has first to be found out in case eviction is to
be directed;
that the hardship then has to be placed against the relative
advantages which the landlord would stand to gain if an order of eviction is
passed;
 that the hardship and the advantage then have to be weighed and if the
balance turns in favour of the tenant, it is obvious that the petition of the
landlord must be rejected;
 in order to weigh such hardship of the tenant with
the advantage of the landlord, no hard and fast rules can be laid down and its
determination depends upon the facts and circumstances of the case;
that such
consideration is not reflected merely to financial or physical advantages or
disadvantages or any injury to the health of the person  effected; that it might
take within itself, consideration of the existence or availability of an
alternative accommodation or the real efforts made by the tenant to seek an
alternative building for his purpose and other such things;
 that it is not
possible or desirable to give a list of any such relevant considerations in
weighing the relative hardship;
that the proviso should not be read as if it
confers a practical immunity on the tenant from being evicted and that when once
the bonafide requirement of the landlord is ascertained under Section 10(3)(c)
or the landlord brings himself within that provision, then the onus is on the
tenant to allege and prove the various factors which he wants the Rent
Controller to take into account for weighing the relative hardship which may be
caused to the tenant in case he is evicted, and establish that it outweighs the
advantage which might accrue to the landlord.
It was also held that if he
succeeds in establishing that factor, the rejection of the petition would
naturally follow
but if he neither alleges nor proves the relevant factors, the
benefit of Section 10 (3) (c) will naturally go to the landlord. It was held
that some hardship is bound to be caused when a person is disturbed from the
premises where he has been carrying on business for a number of years apart from
personal inconvenience, but this hardship which is inherent in this situation
does not compare better with the disadvantage from which the landlord would
suffer at the moment and that the landlord cannot be compelled to be content
with that limited accommodation under the circumstances prevailing previously.
This Judgment has been followed in B. Rukmaiah's case (2 Supra).

21)  Having noticed the above Judgments, we have to now decide
whether there is
a bonafidee requirement on behalf of the petitioner for additional accommodation
and 
whether the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.

22)  From the facts above narrated, it is clear that only after the order of
remand passed by this Court on 27-07-2005 in Civil Revision Petition No. 2764 of
1999, the issue of additional accommodation came into focus.  Thereafter the
petitioner amended the R.C.C and included the relevant pleadings in Para VI-A
and B of the R.C.C as mentioned above. Respondent filed a counter denying the
petitioner's allegations but in Paragraph 8 of his counter, the respondent
simply stated that he will suffer great hardship and will lose his livelihood
and therefore the petition should be dismissed.

23) In the counter filed by the respondent, there is no mention  whether the
respondent had made any attempt to secure an alternative accommodation in the
neighborhood or any other facts which would indicate that he would suffer great
hardship, as held in K. Parasuramaiah's case.
 Merely because vacating the shop
would be fatal to the tenant's business , that cannot be a ground to dismiss the
eviction petition.
As held in Parasuramiah's case , some hardship is bound to be
caused when a person is disturbed from the premises where he has been carrying
on business for a number of years apart from personal inconvenience, but this
hardship which is inherent in this situation does not compare better with the
disadvantage from which the landlord would suffer at that moment and that the
landlord cannot be compelled to be content with that limited accommodation under
the circumstances prevailing previously.  In the deposition given by the
respondent, he has categorically stated that he did not attempt to secure other
premises for his business or to vacate the subject premises as the rents in the
neighbourhood shops are very high.
No person from the locality is examined to
show that the rents in the locality are very high as alleged by the 1st
Respondent.
The Respondent admitted that there are two more shops of the 
petitioner by the side of the RCC schedule shop; that all the three shops are in
a row; that the subject premises is having roads on all two sides i.e., on east
and south; that among the three shops, the shop in which tailoring was being
done was very small of 5' x 5' area; that the demised premises measures 3 1/2' x
10' in plinth area; that the premises vacated by the tailor is unfit to do
business in fancy and general stores and that the subject premises is located in
a business locality.  
On the other hand, the petitioner had not only pleaded why
he requires all the three shops together for his proposed business, but also
stated that he had worked in the shop of his brother by name Ganga fancy shop
and therefore he has got experience to do the said business.

24)  From the above evidence, it is clear that the three shops are in a row ;
individually each shop is very small and to run a business in fancy and general
goods; and unless all the three shops are combined, the landlord would find it
difficult to do the said business.

25) In my opinion, the Appellate Authority erred in holding that it is the duty
of the landlord to produce evidence that there is no hardship to the tenant to
evict him from the subject premises . 
In fact the burden is clearly on the
tenant to prove his hardship in view of the Judgments in K. Parasuramaiah's case
(1 Supra) and B. Rukmaiah's case (2 Supra) mentioned above. 

26) In the decision in Jyothi Automobiles, Hyderabad (3 Supra) cited by the
learned counsel for the respondent , 
the petitioner/ landlady failed to lead
evidence therein to show that the accommodation already available to her sons
including three other shop rooms which fell vacant was not sufficient or
adequate for the purpose of their business and that some more accommodation may  
be required.  
In the decision in Laxmi Bai's case (4 Supra) cited by the
respondent's counsel ,
the landlord had invoked Section 10 (3) (c) for the first
time in the revision petition without raising the same in the courts below and
the Court felt that they are not entitled to raise said plea in the revision
petition for the first time. 
In this case the High Court in its order dated 27-
07-2005 in C.R.P.No.2704 of 1999 allowed the issue to be raised and had remanded 
it to the Appellate Authority to consider the same and thereafter the matter has
again came before this Court. Therefore the said decisions cited by the counsel
for the respondent does not apply.

27)  In my opinion, after remand by this Court to the Appellate Authority the
respondent/tenant has not filed any pleading elaborating on the alleged hardship
which would be caused to him except stating that he will suffer great hardship
and will lose his livelihood. 
 In view of his admission that he did not attempt
to secure other premises for his business, I am of the view that the tenant has
failed to establish that the hardship which would be caused to him would
outweigh the advantage to the landlord. 
In view of the admissions by the
respondent as to the size of the shops, the petitioner cannot be compelled to
start his business in the two shops which have fallen vacant instead of all the
three shops including the petition schedule shop. 
I am of the opinion that the
tenant cannot dictate to the landlord as to how he should conduct his affairs
and it is for the landlord to decide how he should put his property to use
subject to the provisions of the Act.  
In my opinion, the Appellate Authority
has failed to correctly apply the principles of law as to burden of proof and
also failed to appreciate the evidence on record in deciding the question
whether the petitioner has a bonafide requirement for additional accommodation
and that the advantage which would ensure to his benefit is not outweighed by
the hardship which may be caused to the tenant.

28)  Therefore, the Civil Revision Petition is allowed and the tenant is
directed to vacate the premises in his occupation on or before 7th of April,
2013.  No costs.
__________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date: 04.01.2013

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