MEHARUNNISA Vs. M. ABDUL GAFOOR

JUDGEMENT

(1.) This appeal by the tenant-appellant is directed against the decree for his eviction from a shop. The case of the plaintiffs is that they require the shop in question for their own business. Since we a're proposing to remand the case to the first appellate court for fresh disposal, we need not give all the facts and the points taken by the parties. One of the grounds on which the appellate has resisted the prayer for eviction is founded on Sec. 10 (3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, which protects the tenant in possession of a non-residential building, if his landlord is already in occupation of any other non-residential building in the same town and for similar purpose. The learned counsel for the appellant relied on the statement of the plaintiff No. 2 to the effect that he has been carrying on a business in skins in partnership with his brother and that he requires the disputed shop for the business in finished leather, and that the business is at present, being conducted from a shop which is at a distance of about 30 yards from the disputed premises. The learned counsel said that there were many other pieces of evidence relevant to this point which have not been considered by the courts below. In reply, the learned counsel for the respondents has placed before us the impugned judgments of the High Court and the first appellate court in some detail and has urged that the oral evidence has been considered by them. We, however, find that although there is some reference to the oral evidence, the courts have not adverted to the plea based on Sec. 10 (3) (iii) and the evidence has not been considered from this angle at all. We do not consider it expedient to go into the entire evidence led by the parties at this stage and are of the view that the matter should be remitted to the first appellate court for rehearing of the appeal.

(2.) The learned counsel for the appellant also passed several other questions, which we, in the circumstances, think should be left to the first appellate court to deal with.

(3.) On behalf of the respondents an affidavit has been filed in this court stating that the person who was looking after the business of the appellant lady has died and she has thereafter sublet the premises to another person; and consequently, the landlords are entitled to obtain a decree for eviction on the ground of subletting. Since this point is based on facts, which have, if true, happened after the decision of the High Court, we think that the plaintiffs should be allowed to take it up. The first appellate court shall permit the parties to lead evidence relevant on this issue and decide the matter on merits.