KOTHA AUDINARAYANA Vs. Y PANDURANGA RAO

JUDGEMENT

(1.) This petition arises under the A P Buildings (Lease, Rent and Eviction) Control Act The petitioners are the landlords The petition was filed under the Rent Control Act for eviction of the respondent from the schedule shop on the basis of bonafide requirement The anterior litigation culminating in this petition has to be stated The tenant took the premises on a monthly rent of Rs 150/-on a stipulated tenancy for a period of one year with an option to continue for another year on the same terms and conditions. The eldest son of the landlord carried on business at Mangalagiri as Druggist and Chemist and as that business did not flourish, he closed the business and came to Guntur to start the business The schedule shop is most suitable for the said business and the joint family of the petitioners has no other shop suitable and available at Guntur. According to the terms of the tenancy agreement, the tenant has to vacate the premises by 29-9-1973 As the tenant did not vacate, notice was issued through advocate on 29-9-1974 to vacate the premises A reply has been sent by the tenant denying the obligation to vacate the premises and did not vacate. In the counter filed by the respondent it is stated that the monthly rent of Rs. 150/- agreed upon is exorbitent and a separate petition is also filed for fixation of fair rent The terms of the agreement are penal and the petitioner is not entitled to get the amount of Rs 2,000/- paid as deposit free of interest In view of this, the respondent made a request for reduction of the rent to which the petitioner stated that he was considering to issue a registered notice for vacting the premises Thereupon the respondent had to give a reply stating the true state of affairs. The bona fide requirement for opening a medical shop by Adinarayana is not true and the shop adjoining the shop in question is leased out by the landlord to D C M shop and the upstair premises was also let out subsequent to the leasing out of the schedule premises to the respondent Further, there is a vacant shop room with roof and two rooms without roofing which can easily be converted into shop rooms by merely putting roofs on the same building in which the petition schedule shop is situated. All these shops are adjacent to one another. On this petition the Rent Cantroller passed an order of eviction on 14-3-1977. On appeal in R.C.A. 16/1977 the appellate authority by an order dated 23-10-1977 remanded the matter with a direction to receive the documents filed by the appellant-tenant subject to proof and relevancy and consider the matter afresh. After remand the landlord filed additional petition saying that he is the owner of the shop room wherein the properties of Sri Siva and Company were kept under the custody of the Commissioner appointed by the Sub-Court Guntur in O.S.186/1977 and the posesession of the said shop was not delivered to him and further the said shop is too big to run medical shop and the schedule shop is suited for the medical business. Thereupon the additional counter was filed by the tenant stating that the petitioner secured alternate accommodation by taking delivery of the shop previously occupied by Siva and Company and the right of the petitioner to evict the respondent is lost in view of the inhibition in Sec 10(3) (iii) of the Act. It was stated that the respodent has no objection to shift into that shop on payment of fair and reasonable rent if the petitioner agrees to the same. On these pleadings the Rent Controller framed the following point for consideration.

(2.) The Rent Controller dismissed the petition on the ground that the petitioner is not entitled for possession of the schedule premises since he has admittedly obtained possession of another non-residential premises of his own. On appeal it was'contended by the landlord that the non-residential building which came into possession is too big for his medical business and he has to forego rent of Rs. 200/-to Rs. 300/- as the said premises is fetching a rent of Rs. 5CO/-p. m. The appellate Court held that if the accomodation is big in the said shop and if the landlord has to forego the rent the said premises can be divided into two equal portions and the other portion can be let out after occupying a portion for himself. In this view, the appeal was dismissed.

(3.) The learned counsel for the petitioner at the outset contended that the tight to possession without actual occupation does not inhibit the application for bonafide requirement and in any event the second proviso to section 10 (3) (a) (iii) of the Act interdicts the plea of bona fide requirement if the possession of the other premises is obtained on the plea of bonafide requirement only and as the eviction of the other shop was ordered on the ground of subletting, this petition for bonafide requirement is not barred. It is also contended that the other shop (previously occupied by Siva & Co., ) is not suitable for medical shop as it is too big.