BARATAM SURYANARAYANA Vs. MANDAVILLI VENKATA KAMAYYA CHETTI

JUDGEMENT

(1.) The landlord of the premises bearing D.Nos. 8-2-46 & 8-2-47 situated at Chowk Bazar in Srikakulam, filed an eviction petition on the ground that the tenant which is a Hindu Joint Family-is in occupation of two rooms with verandah as a lessee and the landlord requires those premises for his personal occupation since the portion which is presently in occupation of the landlord in the Same premises is not sufficient. The plea taken up by the tenant is that the petition schedule premises is occupied by the tenant for the last 36 years, that another room was added to the lease, that the petitioner has got number of rooms in his occupation and that the petitioner has given for rent the room to the south of his portion to Khadi Bhavan. It was also denied that the petitioner's sister-in-law's daughter named Padmavati who is alleged to be the foster daughter of the petitioner is always residing in the house of the petitioner. It is, on the contrary, alleged by the respondent that Padmavati either resides with her parents at Harischandrapuram or at Palasa which is the place of her husband. Further, it is alleged that this petition was filed with an oblique motive and, therefore, it is not a bona fide claim. The Rent Controller, after holding an enquiry, opined that the totality of the evidence goes to show that there is no reasonable necessity for any additional accommodation to the petitioner and there are absolutely no bona fides in the eviction petition. He therefore dismissed the petition. The landlord preferred an appeal and that appeal was also dismissed. The Appellate Authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act 1960 (hereinafter referred to as the Act) confirmed the dismissal of the petition by holding that the claim of the landlord is not bona fide.

(2.) In this revision Mr. Subbarayan, the learned advocate appearing on behalf of the petitioner, has strenuously contended that both the courts erred in approaching the case under the impression that it is Section 10 (3) (a) (i) that applies to the case. The learned Advocate submits that, admittedly, the landlord resides in a portion of the same premises in which the tenant also is the lessee and, therefore, it is Sec. 10(3) (a) (c) that is applicable to the case and the only factor which the courts have to take into consideration is not whether the premises is bona fide required by the landlord but, having regard to the provisions of Section 10 3) (e), whether the claim of the landlord is bona fide. What Sec. 10 (3) (a) provides is as follows:- "A landlord may, subject to the provisions of clause (d) apply to the controller for an order directing the tenant to put the landlord in possession of the building- (i) in case it is a residential building- 'a) if the landlord is not occupying a residential building of his own in the city, town or village concerned and he requires it for his own occupation; ib) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bona fide requires another building instead for his own occupation". Therefore, Mr. Subbarayan contends that Section 10(3)(a)(i)(a) or (b) has no application to the facts of the instant case because, as stated earlier, the landlord occupies a portion of the same building jn a portion of which the tenant also resides. Therefore, to a case of this nature, it is Section 10 (3)(c) that is applicable. Since Sec. 10(3)(a)(i) has no application, there is no question of bonafide requirement of the landlord being necessary or material for purposes of disposal of the eviction petition. According to Section 10(3)(c), a landlord who is occupying only a part of a building, whether residential or or non-residential, may, notwithstanding anything in clause (e), apply to the Controller for an order'directing any tenant occupying the whole or any portion of the remaining part of the builcing to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on as the case may be. Therefore, submits Mr. Subbarayan, that clause (c) of Section 10(3) applies to special cases where both the landlord and tenant reside in one and the same building. But, clause (c) specifically provides that Section 10(3)(a) has no application to a case of this nature. Therefore, what the authority should consider in an eviction petition filed under Cl (c) of the said section is not to find out whether the landlord bona fide requires the premises for his occupation but, having regard to the provisions of clause (e), it should find whether the claim of the landlord is bona fide. Therefore submits Mr. Subbarayan, that both the courts approached the case from the angle that it is Section 10(3)(a)(i) which is applicable to the case and as such they erred in disposing of the eviction petition. I regret I cannot accede to this contention. No doubt, the interpretation put by Mr. Subbarayan has to be accepted in this case because, to my mind, Section 10(3)(c) applies to special type of cases i.e., building, which is occupied partly by the landlord and partly by the tenant, and the landlord is in need for additional accommodation in which case Sec.10(3) (a) (i) does not apply but Sec. 10 (3) (c) applies. When such is the position, the authority need not go Into the question as to whether the requirement of the landlord is bona fide or not. But, it is to be noted that Sec.10 (3) (e) provides that if the Controller shall, if ha is satisfied that the claim of the landlord is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application. It is not in dispute that Sec. 10 (3)[e) applies simultaneously to Sections 10 (3) (a) (i) and 10(3) (c). Therefore, In every case where eviction petition is filed under Sections 10 (3) (a) (i) or 10 (3) (c) it is the duty of the Controller to get himstlf satisfied that the claim of the landlord is bona fide. If the Controller comes to the conclusion that the claim of the landlord is bona fide he has to order eviction but, if he comes to the conclusion that the claim of the landlord is not bona fide he has no other alternative but to dismiss the eviction petition and that is what exactly the two authorities below have done viz., gave a finding that the claim of the landlord is not bona fide. Mr. Subbarayan than contended that it is incorrect on the part of the authorities to go into the question as to whether Padmavati wants to reside in the house of the landlord and by doing so the lower courts fell into error by approaching tha case from the point of view of the provisions of Section 10 (3) (a) and Rot from the point of view of the provisions of Section 10 (3) (c). I cannot accede to this contention also for the simple reason that the landlord's case is that he requires additional accommodation because his loster daughter Padmavati wants to ccrre and stay in his house and every day 10 to 15 guests call on her in which case the present accommodation is not sufficient. Both the lower courts after discussing the entire evidence gave a finding that there is no evidence to show that Padmavati wants to come and stay in the house of the landlord as her health at Palasa is being affected. In these circumstances, the contention of Mr. SubLarayan cannot be accepted. The learned advocate next contended that during the pendency of the proceedings the original tenant died and, therefore, since the contractual period has come to an end and statutory tenancy has started, it is not open to the legal representatives of the deceased to take up the plea which was personal to the deceased i.e. the landlord does not require the premises bona fide for his occupation. In support of this contention Mr. Subbarayan relies upon J.C. Chatterjee vs S.K. Tandon (1) AIR 1972 S C. 2526. I regret I cannot accede to this contention also. A reading of the above ruling would show that in that case the Supreme Court was considering the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, with regard to the definition of the words 'Statutory Tenant' and held that after the termination of the contractual period the period of statutory tenancy starts and if during the period of statutory tenancy and during the pendency of proceedings for eviction the statutory tenant dies his legal representatives will not be entitled to raise all those personal pleas which were open to be raised by the original tenant. The ratio of the case cannot be doubted. But, having regard to the special circumstances of this case, I am of the opinion that the contention advanced by Mr. Subbarayan cannot be accepted. It is to be noted that the lease deed was executed in the name of the joint family of the respondent when their father was the Karta. Similarly, the eviction petition was filed against the joint family with the Karta as the representative of the joint family. In these circumstances, to my mind, the word 'tenant' as defined under Sec. 2(ix) of the Act, squarely applies to the present respondent who are the co-parceners of the joint family property. According to clause (ix) of Section 2, 'tenant' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter, or a deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant. We are not concerned with the other limb of clause (ix) of section 2. It would thus be seen that when a contract is entered into with a joint family, obviously with the Karta as the representative, then every member of the joint family would be considered to be a party to the contract and, therefore, if the Karta dies during the pendency of the proceedings, it does not mean that the personal rights which he had, as envisaged in the above ruling of the Supreme Court would be extinguished on his death because the members of the joint family do not inherit the rights as heirs but they take share in the property as co-parceners and, therefore, they would be considered to be the orginal tenants themselves. Therefore, the principle enunicated by the Supreme Court that even after the contractual period comes to an end and statutory tenancy starts, the original tenant still retains personal rights, would apply with equal force to the present respondents who are the co-parceners of the undivided Hindu family. Mr. Subbarayan next contended that from a perusal of the statement of R.W.1, it would be seen that some of the members of the joint family are having business of their own and, therefore, the case should be sent back for enquiry as to whether the family is a joint family. I regret Icannot accede to this contention also because from a perusal of the evidence of R.W. 1 it cannot be said that it discloses that the members of the joint family have divided and are carrying on separate business. He next contended that I should refer this case to a Bench of this Court as the questions involved are important. I do not see any reason to refer the matter to a Bench of this Court as, to my mind, the arguments advanced by Mr. Subbarayan can be disposed of by me sitting single.

(3.) Hence, there is no substance in this revision. It is dismissed. Having regard to the circumstances of the case, there will be no order as to costs.