A.P. Buildings (Lease, Rent & Eviction) Act, 1960 -Non- examination of petitioner and examination of power of attorney holder -not fatal to the case - Eviction for bonafide occupation - power of attorney holder was examined instead of petitioner - trail court decreed - appellant court set aside the order of lower court - Revision - High court held that non-examination of petitioner is not fatal - examination of power of attorney holder her son with regard to bonafide need for his another brother is valid - not suffers from any defects - set aside the order of lower appellant court came to wrong conclusion = Smt. G.Venkatamma (died) per L.R,G.Narasimha Reddy.... Petitioner Dr. Vijay Chandra Mathur.... Respondent = published in judis.nic.in/judis_andhra/filename=10475

A.P. Buildings (Lease, Rent & Eviction) Act, 1960 -Non- examination of petitioner and examination of power of attorney holder -not fatal to the case -  Eviction for bonafide occupation - power of attorney holder was examined instead of petitioner - trail court decreed - appellant court set aside the order of lower court - Revision - High court held that non-examination of petitioner is not fatal - examination of power of attorney holder her son with regard to bonafide need for his another brother is valid - not suffers from any defects - set aside the order of lower appellant court  came to wrong conclusion = 
Petition for Eviction =
During trial, first son of landlady was examined as P.W.1 and got marked
Exs.A1 to A3. Tenant examined himself as R.W.1 and got marked Exs.B1 to B7.   
6.      The trial Court by order dated 06.04.2006, allowed the eviction petition
on the ground of bonafide requirement pleaded by the landlady and negatived the
plea of willful default of payment of rents by the tenant.  Against the same,
the tenant filed R.A.No.180 of 2006, which was allowed by order dated 05.02.2008
and against the same, the present Civil Revision Petition is filed.=
In Ramkubai v. Hajarimal Dhokalchand Chandak (supra), it is observed as under:
"The Appellate Court was swayed away by the fact that the landlady herself did
not come into witness-box to support her claim.  What is not appreciated by the
Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for
whose benefit the business is to be set up, did come into the witness-box to
support the case of personal requirement."

        In Devi Pershad v. Rajava Desai (supra), it is observed as under:

        "13. The facts and circumstances of the present case are identical and the
observations made by the Supreme Court would directly meet the contentions 
raised by the petitioner. It may be noted that the landlady sought eviction of
the tenants on the ground that the petition schedule premises is required for
the purpose of business intended to be commenced by her sons.  The eldest son 
who is holding the General Power of Attorney on behalf of his mother was
examined as P.W.1 and he deposed as to the averments in the petition with
particular reference to the bona fide requirement.  Therefore, the Courts below
have rightly relied upon the evidence of P.W.1 and it must be held that the
finding recorded that the petitioner has successfully established the ground of
bona fide requirement cannot be said to be erroneous or without any basis."

13.        In view of above discussion and also in view of law laid down in above
Judgments relied on by counsel for petitioners, I am of the opinion that it is
not necessary that landlady should be examined, when her elder son, who is
looking after the affairs of the family, is examined.  The trial Court believed
the evidence of P.W.1.  Just because different view is possible, appellate Court
cannot reverse the well-considered judgment of the trial Court.
14.        I have perused the order passed by the Rent Controller and the view
taken by it is reasonable one, which does not require interference.  But the
appellate Court has taken a different view, even though view taken by the trial
Court is not erroneous, as such, same is liable to be set aside
        Accordingly, the Civil Revision Petition is allowed by setting aside order
dated 05.02.2008 in R.A.No.180 of 2006 passed by the Chief Judge, City Small
Causes Court, Hyderabad  and restore the eviction order dated 06.04.2006 in
R.C.No.333 of 2004 passed by the I Additional Rent Controller, Hyderabad.
However, the tenant is granted four (4) months time for vacating the suit
premises on the condition that he shall pay all arrears of rent and shall
continue to pay the existing rent for a period of four (4) months with an
undertaking that he shall not induct third parties into suit premises and also
undertakes to handover vacant and peaceful possession of suit premises to civil
revision petitioner/landlord at the end of four months period. There shall be no
order as to costs. 
 As a sequel, miscellaneous petitions, if any, pending in
this Civil Revision Petition, shall stand closed.

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 3439 OF 2008

Date:30-10-2013

Smt. G.Venkatamma (died) per L.R,G.Narasimha Reddy....  Petitioner      

Dr. Vijay Chandra Mathur.... Respondent

Counsel for the Petitioner: Sri D.Seshashayana Reddy

Counsel for the Respondent: Sri K.S.Murthy

>HEAD NOTE:  

?Cases referred

1 ALD-2004-1-241
2 LAWS (SC)-1999-8-162  
3 LAWS(APH)-2002-6-161/ALT-2002-5-710  
4 LAWS (DLH)-1981-2-11/DRJ-1981-2-138  

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 3439 OF 2008

ORDER:
               
        This Civil Revision Petition is directed against order dated 05.02.2008 in
R.A.No.180 of 2006 passed by the Chief Judge, City Small Causes Court,
Hyderabad, wherein the Appeal filed by the respondent herein under Section 20 of
the A.P. Buildings (Lease, Rent & Eviction) Act, 1960 (for brevity 'the Act')
was allowed by setting aside order dated 06.04.2006 in R.C.No.333 of 2004 passed
by the I Additional Rent Controller, Hyderabad.
2.      For the sake of convenience, the parties hereinafter will be referred to
as landlady and tenant.
3.      Brief facts which are necessary for disposal of the Civil Revision
Petition are as follows:
        Landlady filed eviction petition on the plea that she requires it for the
proposed business of her second son G.Raji Reddy.  The suit premises is a non-
residential premises and the tenant, who is a medical practitioner, admittedly,
running a clinic in it. The case of the landlady is that her second son is
unemployed and he has already gained experience in the shop of her first son and
therefore, he requires the suit premises to commence his own business in it and
therefore, he requires the suit premises to commence his own business for
running a general stores.  It is also pleaded that the tenant was not regular in
paying the rents.
4.      The tenant filed counter stating that he is running his clinic in the suit
premises since 35 years and he was always paying rents regularly and not
troubled the landlady.  It is also pleaded that the second son of the landlady
is having his own avocation and the landlady's plea that she requires the suit
premises for his business is not correct and the landlady has invented that plea
only for the purpose of evicting him to let out the premises for higher rents.
It is also stated that the landlady demanded him to enhance the rent from
Rs.650/- to Rs.1200/- per month, when he refused to enhance the rent, landlady
along with her sons demanded to vacate the premises, as such, he filed suit for
perpetual injunction against the landlady.   It is also pleaded that the
landlady and her sons have several non-residential properties and another non
residential premises has been vacated by the proprietor of Shakthi Electronics
and the same is available.
5.      During trial, first son of landlady was examined as P.W.1 and got marked
Exs.A1 to A3. Tenant examined himself as R.W.1 and got marked Exs.B1 to B7.   
6.      The trial Court by order dated 06.04.2006, allowed the eviction petition
on the ground of bonafide requirement pleaded by the landlady and negatived the
plea of willful default of payment of rents by the tenant.  Against the same,
the tenant filed R.A.No.180 of 2006, which was allowed by order dated 05.02.2008
and against the same, the present Civil Revision Petition is filed.
7.      Learned counsel appearing for the revision petitioner contends that the
Rent Controller, after considering pleadings, oral and documentary evidence
adduced on both sides, rightly allowed the eviction petition, but the appellate
Court set aside the same only on the ground that the landlady and second son of
the landlady were not examined.  He also contends that after the death of
husband of landlady, elder son of landlady is looking after the entire affairs
of the family and he is competent to speak about the affairs of the building.
It is common that after the death of head of family, elder son will lookafter
the affairs of the family and as such, he was rightly examined.  Landlady being
old, she was not examined herself.  When P.W.1 is competent to speak about the
affairs of the building, it cannot be said that non examination of second son of
landlady in respect of whom suit premises is sought for, can affect the case of
the landlady.   He would further contend that just because there is delay in
filing eviction petition after issuing notice to the tenant, it cannot be said
that the requirement of suit premises for the second son of landlady is not
bonafide.   He also contends that there is nothing to disbelieve the evidence of
P.W.1.  But the appellate Court erroneously set aside the well considered order
of the trial Court only on the ground of non examination of landlady and her
second son and rejected the plea of bonafide requirement.  It is also contended
that P.W.1 is doing rice business and STD booth adjacent to suit mulgi and the
suit premises is required for running general stores by the second son of
landlady.   In support of his contention, he relied on the following decisions:
        Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna1, Ramkubai v. Hajarimal  
Dhokalchand Chandak2, Devi Pershad v. Rajava Desai3 and Raj Bahadur v. Sushila
Devi Nigam4
8.      On the other hand, learned counsel appearing on behalf of the respondent
would contend that except examining P.W.1, no evidence is adduced on behalf of
the landlady to show that the premises was required for running business of
second son of landlady.  It is also contended that neither the person for whom
the premises is required nor the landlady is examined, as such, appellate Court
rightly held that the evidence is not convincing and on that ground allowed the
appeal filed by the tenant.  It is further contended that the appellate Court
appreciated the evidence and arrived at the finding, which cannot be disturbed
in the revision.
9.      Now, it has to be seen whether the landlady who filed eviction petition,
requires the suit premises for personal occupation of his second son for running
business?
10.      The elder son of landlady is examined himself as P.W.1, is already
running business in the adjacent shop of the suit mulgi. The trial Court
believed the evidence of P.W.1 and came to the conclusion that the second son of
the landlady was not carrying on the business in any other shop or doing the job
in any place, basing on which, ordered eviction.  P.W.1 clearly deposed that
landlady has got two sons, himself and G.Raji Reddy.  It is also deposed that
P.W.1 and landlady got evicted adjacent shop occupied by tenant Shakti
Electronics by filing Rent Control proceedings.   It is further deposed that
P.W.1 is doing business in that premises and now his younger brother, who has
gained experience, wants to commence his own business of general stores, as
such, landlady requires the suit premises for personal occupation of her second
son.
11.     The respondent/tenant was unable to show that the landlady is having other
non-residential premises and same is vacant.  Even according to tenant, there
are three mulgies, out of which, one mulgi is occupied by tenant, one by Shakti
Electronics, which was got evicted by landlady and in the said shop, P.W.1 is
running rice business and STD booth and in another shop i.e., suit premises,
R.W.1/tenant is running clinic.
12.     The evidence of P.W.1 can be believed because when already one shop is
evicted for one son by landlady, P.W.1 being elder son is running business, the
second son also is entitled for another shop for running his own business, for
which eviction is sought.  Therefore, the evidence of P.W.1 appears to be
natural, though the tenant has taken a plea that landlady is having other non-
residential premises, but the same was not proved.  When P.W.1 deposed himself
that he already started rice business in rice and STD booth, his younger brother
wants to start general stores business, that aspect was not considered by the
appellate Court in proper prospective.  The trial Court by considering the
evidence on both sides and admissions made by R.W.1 ordered eviction of the
tenant.  The appellate Court by taking an erroneous view only on the ground that
the landlady and her second son were not examined and set aside the well
considered order of eviction passed by the Rent Controller.
        In Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna(supra), it is held
as under:
                "Therefore, the only requirement for a person to come into the
witness box to speak in regard to any facts and circumstances of the case is
that he should be competent enough to testify i.e., to speak.  The competency as
contemplated is very wider in its connotation.  There is distinctive feature
between one who is said to be competent on behalf of the person to speak and
another how far and to what extent the person can speak.  These two aspects
cannot be mixed up to reject a person from entering the witness box. As long as
one holds proper authority under a Power of Attorney or otherwise, he is fully
competent to come as witness on behalf of the said party. The competency as 
provided for further gets extended under Section 120 of Evidence Act providing
that in any civil proceedings the husband or wife of a party to a suit shall be
a competent witness.  Therefore, it cannot be said that the Power of Attorney
holder cannot be said to be incompetent as witness on behalf of the
party/executant.... It is thus held answering the reference that a Power of
Attorney holder is a competent witness on behalf of the party/executant and
further that the effect and relevancy of such evidence has to be considered from
proper perspective on the facts and circumstances of each case."

In Ramkubai v. Hajarimal Dhokalchand Chandak (supra), it is observed as under:
"The Appellate Court was swayed away by the fact that the landlady herself did
not come into witness-box to support her claim.  What is not appreciated by the
Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for
whose benefit the business is to be set up, did come into the witness-box to
support the case of personal requirement."

        In Devi Pershad v. Rajava Desai (supra), it is observed as under:

        "13. The facts and circumstances of the present case are identical and the
observations made by the Supreme Court would directly meet the contentions 
raised by the petitioner. It may be noted that the landlady sought eviction of
the tenants on the ground that the petition schedule premises is required for
the purpose of business intended to be commenced by her sons.  The eldest son 
who is holding the General Power of Attorney on behalf of his mother was
examined as P.W.1 and he deposed as to the averments in the petition with
particular reference to the bona fide requirement.  Therefore, the Courts below
have rightly relied upon the evidence of P.W.1 and it must be held that the
finding recorded that the petitioner has successfully established the ground of
bona fide requirement cannot be said to be erroneous or without any basis."

13.        In view of above discussion and also in view of law laid down in above
Judgments relied on by counsel for petitioners, I am of the opinion that it is
not necessary that landlady should be examined, when her elder son, who is
looking after the affairs of the family, is examined.  The trial Court believed
the evidence of P.W.1.  Just because different view is possible, appellate Court
cannot reverse the well-considered judgment of the trial Court.
14.        I have perused the order passed by the Rent Controller and the view
taken by it is reasonable one, which does not require interference.  But the
appellate Court has taken a different view, even though view taken by the trial
Court is not erroneous, as such, same is liable to be set aside
        Accordingly, the Civil Revision Petition is allowed by setting aside order
dated 05.02.2008 in R.A.No.180 of 2006 passed by the Chief Judge, City Small
Causes Court, Hyderabad  and restore the eviction order dated 06.04.2006 in
R.C.No.333 of 2004 passed by the I Additional Rent Controller, Hyderabad.
However, the tenant is granted four (4) months time for vacating the suit
premises on the condition that he shall pay all arrears of rent and shall
continue to pay the existing rent for a period of four (4) months with an
undertaking that he shall not induct third parties into suit premises and also
undertakes to handover vacant and peaceful possession of suit premises to civil
revision petitioner/landlord at the end of four months period. There shall be no
order as to costs. 
 As a sequel, miscellaneous petitions, if any, pending in
this Civil Revision Petition, shall stand closed.


_______________________  
A.RAJASHEKER REDDY, J    
dated:30-10-2013

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