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Sunday, January 25, 2015

Rent Control Act -If, damage caused to the scheduled premises is otherwise visible, the burden lies on the person disputing it to lead contra evidence. Therefore, the default, if any, in not taking out any commission is attributable to the petitioner herein, but not to the respondent-landlords. It is not for the tenant to demand the landlords to disclose the nature of business that they would intend to carry on and as to whether it requires the petition scheduled premises or any other premises would also be equally suitable or not. It is a choice of the landlord. He has a right to exercise an option and choose in his view the best premises suitable for carrying on such business.The fact that some other premises has fallen vacant during the pendency of the rent control proceedings and that was allowed to be leased out again in favour of some other third parties is not a factor to be taken into account for deciding the present proceedings. If, such factors are to be taken into consideration, the subsequent developments alone would be tilting the entire issue instead of the merits of the petition concerned.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            
CIVIL REVISION PETITION No. 1598 of 2014

29-12-2014

Kanchumanu Venkateswara Rao, S/o late Appa Rao   Venkata Durga Auto Engineering  
Works   D.No.19-1-109/A, Vallabai Street, Kakinada,East Godavari District
Petitioner

Chukka Raja Reddy S/o Apparao   Opp: S.P. office, Kakinada      East Godavari      
District and another.. Respondents

Counsel for the petitioners:M/s S. Subba Reddy                
             
Counsel for the respondents:Sri A.S.C. Bose


<GIST:

>HEAD NOTE:  

? Cases referred

1.      2012 (1) ALT 384
2.      AIR 2001 SC 803


 THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO          
CIVIL REVISION PETITION NO. 1598 of 2014  
ORDER:

      This is a revision preferred by a tenant of non-residential
premises located at Vallabai Street, Kakinada, East Godavari
District, under Section 22 of the A.P. Buildings (Lease Rent &
Eviction) Control Act, 1960, (henceforth referred to as Rent Act),
praying to revise the order of eviction passed by the learned
Principal Senior Civil Judge-cum-Rent Control Appellate Authority
on 06.03.2014 in R.C.A.No.4 of 2012, preferred by the
respondents.

      The facts which have emerged are:
1.      The father of the petitioner herein has taken on monthly rent
the scheduled premises in the year 1974 from one
Sri Sunkara Venkateswarlu, the grandfather of the second
respondent herein.

2.      The petitioners father established a lathe machine and was
carrying on works thereon in the name of Vijaya Durga Auto
Engineering Works. After his death, the petitioner continued
to be a tenant and carried on the same business and is
currently paying a monthly rent of Rs.1,000/-.

3.      It is the case of the petitioner herein that sometime during
September, 2005, he was asked to enhance the monthly rent
from Rs.1,000/- to Rs.2,000/- and the advance from
Rs.10,000/- to Rs.15,000/-, failing payment of which he was
threatened by the respondent that he will be forcefully
evicted there from.

        In those circumstances, the petitioner herein filed civil suit
O.S.No.1339 of 2005 on the file of the I Additional Junior Civil
Judges Court, Kakinada, seeking permanent injunction not to
interfere with his possession and not to evict him there from except
in due process of law. It is alleged that as a counter blast, the
respondent-landlords have filed the Rent Control Case No.16 of
2009 seeking eviction on three grounds:-

1.      Willful default in payment of rent
2.      Bonafidee requirement of the premises by the landlords and
3.      Due to the acts of waste committed by the petitioner herein.

        On behalf of the petitioners/respondents herein, they
examined themselves as P.W.Nos.1 & 2 and they also got examined  
another tenant of one of the shop rooms as P.W.3.  They got
marked Exs.A-1 to A-10.  The petitioner herein examined himself
as R.W-1 and got examined one of the relatives of the respondents
as R.W.-2.  He has not filed any documentary evidence. The Rent
Controller dismissed the application on the ground that the
respondent-landlords have not let in any evidence as to the nature
of business proposed to be commenced by them and they have also   
not demonstrated as to how the portion that fell vacant during the
course of the proceedings was not suitable to carry on the
proposed business. So far as the damage caused to the flooring of
the scheduled shop, since the landlords have not got any expert
appointed for ascertaining as to whether the flooring of the shop is
damaged because of usage of the lathe machine installed in the
schedule premises, the rent control case is dismissed.

      The respondent-landlords have preferred Rent Control
Appeal No.4 of 2012 before the Appellate Authority. The Appellate
Authority has returned a finding that it is for the landlords to
choose that particular shop room which is more convenient for
them to set up their business and they are not required to set out
in detail as to where from they would get the necessary capital
input for starting the business or as to the nature of business they
intend to carry on. Further, the learned Appellate Court found
that, though Ex.A-8 clearly disclosed that the petitioner tenant was
very irregular in tendering rent, however, he has only taken the
same for purpose of examining the conduct of the petitioner
herein, as Ex.A-8 disclosed that the petitioner herein tendered
rents due for December, 2004 and January, 2005 February, 
March, April and May, 2005 at one go. However, the Appellate
Court, based upon Ex.A-10 had found that there was damage  
caused to the flooring of the petition scheduled premises and the
petitioner-tenant never moved the Court seeking permission for
undertaking repairs thereof. Most importantly, the learned
Appellate Court has recorded that the petitioner herein who
examined himself as R.W.1, during the course of cross-
examination has deposed that he was having his own house in the 
first street of Sambamurthy Nagar in Kakinada and therefore, he
could have carried on his business even from that premises. The
Appellate Court therefore allowed the appeal.

      Heard Sri S. Subba Reddy, learned counsel for the petitioner,
who would contend that the proceedings under the Rent Control
Act, for eviction of the petitioner have been initiated as a counter
blast to the civil suit filed by the petitioner herein. Further, both
Courts have not returned any specific finding that the petitioner
has committed willful default in tendering the monthly rent. The
landlords have not established the bonafinde requirement of the
premises for them to carry on any business there from. It is also
contended that the equities have not been properly worked out,
inasmuch as, the hardship that is likely to be caused to the
petitioner herein, if he is evicted would fairly outweigh that of the
respondent-landlords. Sri S. Subba Reddy would further contend
that the present petition has been instituted under Section 10(2)
(1) of the rent act and hence the eviction petition should not have
been ordered by the Appellate Court. He placed strong reliance
upon the judgment rendered by this Court in Rayapuraju
Venkatarama Rao (died per LRs) v. Gangadharan Nair
(Gangadharan Nambiar) .

      The undisputed facts that are noticed reflect that, the father
of the petitioner herein has taken the scheduled premises for
carrying on business in lathe works sometime during the year
1974 from the grandfather of the second respondent herein. After
the death of his father, the petitioner was carrying on the business
in lathe works. Thus, for four decades, the said business is carried
on from the scheduled premises. It was further not in dispute that
the petitioner herein instituted Civil Suit O.S.No.1339 of 2005
seeking permanent injunction and that suit was subsequently
dismissed. The present rent control proceedings have been
initiated sometime in February 2009, that is nearly after 4 years
time. Therefore, it would be difficult to assume that the present
rent control proceedings have been initiated as a counter blast to
the civil suit which the petitioner has instituted seeking permanent
injunction.

      Ex.A-8 has clearly brought out the fallacy behind the
assertion of the petitioner that he was very regular in payment of
rents. However, the learned Rent Control Appellate Court has
rightly relied upon Ex.A-8 only to demonstrate the conduct of the
petitioner and beyond that, the default committed by the
petitioner, as evidenced by Ex.A-8 being much prior in point of
time to the institution of the present eviction proceedings in
February, 2009, has not been relied on any further.

      So far as the finding of the Appellate Court that Ex.A-10
clearly brings out the damage caused to the flooring of the
scheduled premises is a finding of fact. The learned Rent Controller
preferred to ignore Ex.A-10 on the ground that the landlords have
not taken out any commission of an expert to examine the extent
of damage caused to the flooring of the scheduled premises. The
reasoning adopted in this regard by the Rent Controller is hardly
satisfactory. If, damage caused to the scheduled premises is
otherwise visible, the burden lies on the person disputing it to lead
contra evidence. Therefore, the default, if any, in not taking out
any commission is attributable to the petitioner herein, but not to
the respondent-landlords. I have, therefore, no hesitation to
confirm the finding of the Appellate Court based on Ex.A-10 that
damage has been caused to the flooring of the scheduled premises 
and hence, the petitioner has committed acts of waste.

      So far as the bonafide requirement of the respondent-
landlords are concerned, documentary evidence has been brought 
on record in the form of Exs.A-4, A-5 & A-6 which demonstrate
that the first respondent herein has acquired a technical Diploma
in Computer Systems Management. Ex.A-8 vouches for the   
educational background of the second petitioner herein who has
also deposed that she has acquired technical qualification of
typewriting by higher grade in three different languages and that
she has also obtained a certificate of having passed the Hindi
Pracharak Course and that she has worked for a while as a teacher
and that since she has suffered a set-back in her health, she
resigned to the said post and she wanted to establish a business of
her own. D.W.2 has been examined by the petitioner herein to
discredit that assertion and he deposed that the family ladies
would not carry on business. I am afraid, it does not lie in the
mouth of the petitioner or for that matter that of D.W.2 to say that
the second petitioner/respondent land lady cannot carry on any
business. It is time that one should realize that the Indian women
are asserting their right to lead a life of dignity on their own
completely without sacrificing their family interests, by
undertaking suitable business activity. Therefore, it is certainly not
open to the petitioner herein to raise the slightest of doubt with
regard to the capability of the second petitioner herein to enter
upon any such entrepreneurship. That, in my opinion, is not open
for debate. Therefore, the finding of the Appellate Court that the
bonafide requirement of the scheduled premises by the
respondent-landlords has to be examined independently.

      It is never in doubt that the first respondent herein has
acquired technical Diploma in Computer Systems Management.    
Therefore, if he wants to establish a business of his own at the
scheduled premises, he is not required to demonstrate anything
more. It is not for the tenant to demand the landlords to disclose
the nature of business that they would intend to carry on and as to
whether it requires the petition scheduled premises or any other
premises would also be equally suitable or not. It is a choice of the
landlord. He has a right to exercise an option and choose in his
view the best premises suitable for carrying on such business.

      The fact that some other premises has fallen vacant during
the pendency of the rent control proceedings and that was allowed
to be leased out again in favour of some other third parties is not a
factor to be taken into account for deciding the present
proceedings. If, such factors are to be taken into consideration, the
subsequent developments alone would be tilting the entire issue
instead of the merits of the petition concerned.
     
        In Gaya Prasad v. Sh. Pradeep Srivastava , the Supreme
Court set out the principle as under:

10. We have no doubt that the crucial date for deciding as to
the bona fides of the requirement of the landlord is the date of
his application for eviction. The antecedent days may perhaps
have utility for him to reach the said crucial date of
consideration. If every subsequent development during the post
petition period is to be taken into account for judging the bona
fides of the requirement pleaded by the landlord there would
perhaps be no end so long as the unfortunate situation in our
litigative slow process system subsists

15. The judicial tardiness, for which unfortunately our system
has acquired notoriety, causes the lis to creep through the line
for long long years from the start to the ultimate termini, is a
malady afflicting the system. During this long interval many
many events are bound to take place which might happen in 
relation to the parties as well as the subject matter of the lis. If
the cause of action is to be submerged in such subsequent
events on account of the malady of the system it shatters the
confidence of the litigant, despite the impairment already
caused.

      Sri S. Subba Reddy, learned counsel for the petitioner has
placed reliance upon the judgment rendered by this Court in
Rayapuraju Venkatarama Rao (died per LRs) v. Gangadharan
Nair (Gangadharan Nambiar), in support of his plea that where
the landlord is owning more than one premises, he should
specifically set out as to why the other premises is not suitable to
him and that the rent controller is required to reject the
application if he is satisfied that the hardship which might be
caused to him by granting eviction will outweigh the advantage to
the landlord and therefore the Court below ought not have allowed
the appeal of the respondents.

      It will be appropriate to notice that the Appellate Court has
adverted to the admission of the petitioner herein during his cross-
examination that he owns a building of his own in the first street of
Sambamurthy Nagar, Kakinada. Therefore, burden lies on him to 
establish that the said premises is not suitable for him to carry on
the lathe business there from. This apart, if the petitioner sought
for a relative assessment of hardship between himself and that of
the respondents, he ought to have let in evidence to demonstrate
that the special or specific requirements needed for carrying on
lathe business and as to how such special requirements cannot be
easily obtained in Kakinada City at any other premises. Kakinada
City is a fairly industrialized city. It is a port city and consequently,
good number of premises are used for non-residential purposes. It
is, therefore, for the petitioner to have demonstrated the peculiar
hardships which he will have to face, if he was ordered to be
evicted there from. Appropriate evidence ought to have been led in
for one to record any finding of fact. In the absence of any such
material, it will not be proper for this Court to entertain any such
claim for the first time in this Court. There is no evidence available
on record for noticing any specific or peculiar hardships which the
petitioner will have to face in case of his eviction from the premises
in question.

      More than anything else, the premises in question is leased
out to his father initially and to the petitioner herein and they had
been carrying the business for 40 years there from. Therefore, in
the face of the requirement of the respondents, the petitioner
herein has been rightly ordered to be evicted by the Appellate
Court from the scheduled premises.

      Accordingly, the civil revision petition is dismissed.
Consequently, miscellaneous applications pending shall also stand
dismissed. No costs.
________________________________  
NOOTY RAMAMOHANA RAO, J      
27th December, 2014

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