P LINGAMMA Vs. P VENUGOPAL

JUDGEMENT

(1.) THIS revision is preferred by the landlords against the order dated 8. 12. 2006 passed by the Appellate Authority under the A. P. Buildings (Lease, Rent and eviction) Control Act, 1960 (for short "the Act"-Chief Judge, City Small Causes court), Hyderabad in R. A. No. 258 of 2004. The parties are being referred to as 'the landlords' and 'the tenant'. The brief facts of the case are as follows, the landlords filed an eviction petition on the ground that the tenant has committed wilful default in payment of rents as well as property tax. The second ground alleged was that the second petitioner-landlord is carrying on professional business in a rented mulgi and requires the demised mulgi for his own purpose. The third ground of the tenant having an alternative accommodation was also alleged. The learned Rent Controller, on trial, accepted all the grounds and ordered eviction of the tenant. Aggrieved thereby, the landlords filed an appeal before the lower Appellate Authority. Under the impugned order the lower Appellate Authority rejected the grounds of wilful default in payment of rents as well as property tax and also the ground of the tenant having an alternative accommodation. The said grounds are not seriously pressed in this revision. However the ground of personal requirement which was also rejected by the lower Appellate Authority is seriously contested and it requires consideration. It is the case of the landlords that the demised mulgi is required by the second petitioner-landlord for carrying on business as he is presently carrying on such business in a rented premises. The plea of personal requirement which was taken in para-5 of the eviction petition was disputed by the tenant on the ground that the second petitioner-landlord is not under the threat of eviction from the rented premises and secondly on the ground that the landlord owns an adjacent mulgi situated on the eastern side of the mulgi in question. It was also further alleged by the tenant that the said mulgi was previously used by the landlords for running a kirana and general stores which was later closed and recently it has been let out for a ready made garments business on a higher rent and as such the requirement was strongly disputed. The second petitioner-landlord examined himself as P. W. 1 and his brother as P. W. 2 and marked Exs. A1 to A4 which are rental deed dated 3. 3. 1987, transfer certificate issued by Government Boys Upper primary School, certificate issued by civil surgeon orthopedic and photographs. The tenant examined himself as R. W. 1 and marked Exs. R1 to R6 which are in the nature of receipts and acknowledgements. As mentioned above, since the ground of personal requirement is only seriously pressed for adjudication, the documentary evidence produced by the parties has hardly any relevance. The learned counsel for the landlords has made submissions to substantiate the plea of personal requirement primarily on the ground that there is no evidence to show that the second petitioner-landlord is entitled to any alternative premises other than the petition schedule premises. He has also urged that so far as the personal requirement is concerned, the second petitioner-landlord is carrying on business in a rented premises and he requires the demised premises for carrying on such business and that he is not owning any other non-residential premises and as such the said requirement ought to have been upheld by the lower Appellate Authority. He also relies upon the evidence of P. W. 1 and P. W. 2 and cross-examination of R. W. 1 in support of these contentions, reference to which will be made later on. Per contra, the learned counsel for the tenant contends that the findings of the lower Appellate Authority even on the ground of personal requirement do not deserve to be interfered with. The learned counsel submits that the plea of partition between PWs 1 and 2 is not substantiated. He also claims that there is no pleading in the eviction petition that the landlords did not own or possess any other premises which is mandatory requirement and secondly he claims that when the tenant has specifically pointed out that the landlord is having adjacent premises bearing No. 3-1-195 which is recently let out, there is no rejoinder filed by the landlords. The learned counsel, therefore, submits that the personal requirement pleaded by the second petitioner-landlord is non-existent, especially when the second petitioner-landlord's rented premises is not under threat of eviction and claims that the requirement pleaded is only to harass the tenant. I have considered the pleadings and the evidence in the light of the contentions of both the learned counsel for the parties. It is to be appreciated that the eviction petition was specifically filed by alleging in para-5 that the second petitioner-landlord is carrying on professional business in a rented mulgi bearing No. 3-1-227 belonging to Smt. Afzal Bibi situated in the same locality at a distance of one furlong from the petition schedule premises and he is paying Rs. 750/- per month. The second petitioner-landlord claims that he is in need of the demised mulgi for carrying on the same professional business. While it is true that there is no averment as pointed out by the learned counsel for the tenant, but even otherwise the tenant is not able to point out any other premises to which the second petitioner-landlord can be said to be entitled to. The evidence of P. W. 1 in cross-examination clarifies that the neighbouring mulgi bearing No. 3-1-195 was earlier occupied by a tenant by name Sheela and it is now let out for a kirana shop for the last three or four years. In his further cross-examination he explains that the said premises bearing No. 3-1-195 has fallen to the share of his brother (P. W. 2) and it is not owned by the first or second petitioner-landlord and as such he says that he is not in a position to produce the documents relating to the said premises. The second petitioner-landlord also examined P. W. 2, his brother who has deposed that he is the owner of the adjacent premises bearing No. 3-1-195 and claims that his late father was the original owner of both the mulgies bearing Nos. 3-1-194 and 3-1-195 and in a partition, the mulgi bearing No. 3-1-194 has fallen to the share of the second petitioner-landlord and the mulgi bearing No. 3-1-195 has fallen to his share. He further stated that the partition took place in 1995 and he also asserted that the said mulgi bearing No. 3-1-195 belongs exclusively to him. The aforesaid evidence of PWs 1 and 2 is consistent and remained uncontroverted by the tenant and except the allegation that the second petitioner-landlord owns mulgi bearing No. 3-1-195, there is no material on record. In fact, the tenant could not deny that the father of PWs 1 and 2 was the original owner of both the mulgies and both the brothers are sharing the demise mulgi No. 3-1-194 or other mulgi No. 3-1-195. The lower Appellate Authority has also laid a great stress on the lack of pleading by the landlord with respect to his not being entitled to any other premises. The requirement of such pleading in the eviction petition would assume more importance in the event the tenant is able to show that the landlord does hold or is otherwise entitled to any other non-residential premises. The requirement of such pleading has, therefore, to be understood in the said sense and not in such a way so as to throw out the requirement pleaded and disallow the personal requirement of the second petitioner-landlord. Not pleading the same in the eviction case would not make any difference. As a fact in this case there is no evidence or material before the Court that the second petitioner-landlord owns or is otherwise entitled to any other premises. In fact, a similar contention was raised before the Hon'ble Supreme Court in duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah and another, AIR 1987 SUPREME COURT 406 which was repelled by the Supreme Court in para-8 which is extracted below,