Sunil S. Lulla, Hyd vs M/S. Premier Refrigeration, Sec
2022 Latest Caselaw 575 Tel

       THE HONOURABLE SRI JUSTICE M.LAXMAN

       CIVIL REVISION PETITION NO.5766 OF 2010

ORDER:

1. This revision has been directed against the judgment

dated 08.11.2010 in R.A.No.159 of 2010 on the file of the

Additional Chief Judge, City Small Causes Court, Hyderabad

(lower appellate Court), whereunder and whereby the lower

appellate Court reversed the order of the Additional Rent

Controller, Secunderabad (trial Court) in R.C.No.143 of 2007,

dated 31.03.2010, whereunder the application of the landlord

for eviction of the tenant on the ground of bona fide

requirement was allowed.

2. The petitioner herein is the landlord and the respondent

herein is the tenant. For the sake of convenience, the parties

are hereinafter referred to as the tenant and the landlord.

3. The pleadings of the landlord show that he is the

absolute owner of mulgi bearing No.36, Municipal No.139 in

United Builders, situated at Sarojini Devi Road, Paradise

Circle, Secunderabad (hereinafter it is referred to as 'suit

mulgi'). The suit mulgi was let out to the tenant on monthly

basis and the tenancy was commenced from 20.02.1979. The

rent payable on the date of eviction application was

Rs.3,125/- per month.

4. The pleadings further show that the landlord has a good

experience in textile business as a Manager. He wanted to

establish his own textile business and he had no other

non-residential premises except the suit mulgi. As such, he

was in the bona fide requirement of mulgi genuinely and

honestly to establish a textile business. In spite of demands

from the landlord to vacate the suit mulgi to establish a

textile business, the tenant did not comply the same and

moreover, he has stopped the payment of monthly rents from

May, 2007 to September, 2007 i.e., five months, amounting to

Rs.15,625/-. Therefore, an eviction notice dated 28.06.2007

was issued terminating the tenancy on two grounds i.e.,

willful default and bona fide requirement. Despite receipt of

the said notice, when there was no response, the landlord

filed R.C.No.143 of 2007 before the trial Court seeking

eviction of the tenant from the suit mulgi.

5. The pleadings of the tenant show that he did not deny

the ownership of the landlord in respect of the suit mulgi and

initial commencement of tenancy and also monthly rent

payable on the date of filing of eviction application. He denied

the claim of default of rent. He claimed that the landlord is

having cloth business in premises No.5-1-908, Pushpanjali

Compex, Kothi, Hyderabad, which runs in the name of 'Lulla

Brothers'. The tenant stated that the landlord is having

another premises, which is under the occupation of tenant

viz., Ferrow Alloys Ltd. The tenant further stated that the

landlord also owns a Silk Centre and there is no bona fide

genuine and honest requirement of the suit mulgi to establish

the textile business, and prayed to dismiss the application.

6. On the basis of the above pleadings, the trial Court

framed the following issues:

"1. Whether the petitioner requires the premises for self occupation of his business?

2. Whether the respondent committed default in payment of rent from May, 2007 to September, 2007?

3. To what relief?"

7. The landlord, to support his case, examined himself as

P.W.1 and relied upon Exs.P-1 to P-4. The tenant, to support

his case, examined R.W.1 and relied upon Exs.R-1 to R-95.

8. The trial Court, after appreciating the evidence on

record, has accepted the plea of the landlord with regard to

bona fide requirement. However, it rejected the claim of

willful default by the tenant in payment of monthly rent.

Consequently, the trial Court directed the tenant to vacate

and handover the vacant possession of the suit mulgi to the

landlord. Aggrieved by the same, the tenant has filed

R.A.No.159 of 2010 which was allowed reversing the findings

of the trial Court. Hence, the present Civil Revision Petition.

9. Heard both sides.

10. The only point falls for determination by this Court is

whether the landlord has made out bona fide requirement so

as to evict the tenant?

11. Learned counsel for the landlord/petitioner has

contended that the lower appellate Court has not considered

the evidence on record, more particularly the business

experience of the landlord in textile business and need of his

establishment of his own business in the suit mulgi, as he

was doing the business as a Manager in the partnership firm

which runs Silk Centre, in which his father was one of the

partners. It is also his contention that the tenant has clearly

admitted in his cross examination that a Silk Centre at Abids

is being run by the father of the landlord. The lower appellate

Court misread the admission of P.W.1 in his cross-

examination to the effect that the rent receipts under Ex.P-2

to P-22 were signed by his Manager. This admission has

been taken as there was another Manager in the Silk Centre,

which is apparently incorrect.

12. The learned counsel has also contended that the lower

appellate Court also misplaced the burden of proof with

regard to claim set up by the tenant as to the Silk Centre is

owned by the landlord and wrongly held that the landlord

failed to bring best evidence to the effect that Silk Centre is

run by the partnership firm, thereby the landlord has

withheld the best evidence in his possession. According to

the learned counsel, this is contrary to the self-findings of the

lower appellate Court to the effect that it did not accept the

claim of the landlord as a Manager, but accepted that Silk

Centre is run by the partnership firm. Having held so,

insisting for further evidence from the landlord instead of

tenant to prove the ownership of the Silk Centre is bad and

contrary to the principles of evidentiary burden.

13. Lastly, the learned counsel has contended that the trial

Court has not given any finding that there was no need on the

part of the landlord to establish the business and he was only

having the desire. There is no finding that the claim of the

landlord for the suit mulgi for establishment of textile

business is mere pretence and there is no bona fide need.

Without holding so, the lower appellate Court wrongly

reversed the findings of the trial Court with regard to bona

fide requirement which requires to be set aside.

14. Learned counsel for the tenant has contended that the

trial Court misread the evidence let in by P.W.1 and wrongly

held that the landlord has established the bona fide

requirement to start business, when there is a clear

suppression on the part of the landlord to the effect that Silk

Centre is run by the partnership firm not by the landlord. It

is also his contention that the cross-examination of the

landlord clearly demonstrates that the rent receipts were

issued either by the landlord or by his Manager and there is

consistent admission from the landlord althrough to the effect

that he runs the business and he never claimed that he was

the Manager in the business run by his father. The landlord

has approached the Court without true facts and his

requirement was not bona fide and it was a mere pretence to

evict the tenant from the suit mulgi. According to him, the

lower appellate Court rightly appreciated the evidence and

rightly reversed the findings of the trial Court and hence, it

requires no interference.

15. It is also his last submission that when the landlord

admitted that the Silk Centre is run by the partnership firm,

and when the tenant has claimed that it is the landlord's

business, and when the tenant is able to probablise the

business being run by the landlord, an inference can be

drawn to the effect that the Silk Centre business is owned by

the landlord and it is for the landlord to establish that there

was a partnership business run by the partnership firm in

which his father was one of the partners. Therefore, the

lower appellate Court rightly put the burden on the landlord

in proving the partnership of Silk Centre and such findings

require no interference.

16. Before going into the factual aspects, it is apt to

consider the principles laid down by the Apex Court and High

Courts with regard to bona fide requirement.

17. The High Court of Punjab and Haryana at Chandigarh

in Civil Revision No.352/2007, dated 07.10.2013, held as

follows:

"22. The bonafide requirement of a landlord depends upon facts and circumstances of each case and there cannot be a strait jacket formula for this purpose. The burden lies upon the landlord to establish that the accommodation is bonafide required by him for personal use. While adjudicating whether the requirement is bonafide or not, it is to be seen objectively and not subjectively by the Court though, the landlord is the best judge of his requirement. The need of the landlord must exist so as to distinguish it from mere wish or desire."

18. A reading of the above judgment would indicate that

there cannot be any strait jacket formula to establish the

bona fide requirement of landlord. The burden is on the

landlord to establish that the requirement of accommodation

is bona fide. In this regard, it is also relevant to refer to the

decision of the Apex Court in Sarla Ahuja v. United India

Insurance Company Limited1, wherein it was held that the

Rent Controller shall not proceed on the assumption that the

requirement is not bona fide. If the landlord establishes his

prima facie case of requirement, a presumption would arise

that the requirement of the landlord is bona fide and the

tenant cannot dictate the terms to the landlord.

19. It is also apt to refer to the decision of the Apex Court in

M/s Rahabhar Productions Pvt. Limited v. Rajendra

K.Tandon2, wherein it was held as follows:

"The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the

1998 (8) SCC 119

1998 (1) RCR 482 (SC)

Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable times by various High Courts as also by this Court and requires no citations to explain its legal implications. Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander and others, 1988(1) RCR 625, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E.P. Urban Rent Restriction Act, 1949."

20. A reading of the above judgment would clearly show

that the bona fide need should be genuine, honest and

conceived in good faith. The landlord's desire for possession

has inevitably a subjective element in it. The desire to

become requirement must have the objective element of need,

and such an objective element can only be decided by taking

all relevant circumstances of each case.

21. In this regard, it is also apt to refer to the decision of the

Apex Court in Atma S.Berar v. Mukhtiar Singh3, wherein it

was held as follows:

"11. Recently, in Shiv Sarup Gupta Vs. Dr. Mahesh Chand Singh Gurbax Gupta, (1999) 6 SCC 222, this

2003 (1) RCR 42 (SC)

Court in a detailed judgment dealing with this aspect, analysed the concept of bona fide requirement and said that the requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant refers to a state of mind prevailing with the landlord. The only way of peeping into the mind of the landlord is an exercise undertaken by the judge of facts by placing himself in the armchair of the landlord and then posing a question to himself whether in the given facts, substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest? If the answer be in positive, the need is bona fide. We do not think that we can usefully add anything to the exposition of law of requirement for self occupation than what has been already stated in the three precedents."

22. A reading of the above judgment, it shows that the felt

need of the landlord must have outcome of sincere and

honest desire. It must have contradistinction with a mere

pretence or pretext to evict the tenant.

23. In the present case, Ex.A-1 shows that the landlord was

working as a Manager in the Silk Centre and Ex.A-1 was

issued by the partner of the partnership firm. It is a fact that

the landlord has not specifically pleaded in the pleadings with

regard to partnership firm being run by the Silk Centre and

his father was a partner in the said firm, but Ex.A-1 clearly

establishes that it is a firm which runs the Silk Centre at

Abids. Unfortunately, both the Courts below have not

considered the admission of R.W.1 in his cross-examination

that the Silk Centre business is run by P.W.1's father, and

this admission is contrary to the very case set up by the

tenant that the Silk Centre is owned by the landlord.

24. The lower appellate Court, in its findings, has

categorically held that the Silk Centre is run by the

partnership firm. Having held so, the lower appellate Court

failed to understand what was the requirement to establish

the aspect who are the partners of the partnership firm.

When the tenant set up a case that the Silk Centre is run by

the landlord, it is for the tenant to establish the said fact, but

he cannot shift such a burden of proof to the landlord. In

view of such clear-cut evidence from the admission of the

tenant in his cross-examination and the findings of the lower

appellate Court to the effect that Silk Centre is run by the

partnership firm run by the father of the landlord, there is

wrong on the part of the lower appellate Court in holding that

the landlord has withheld the best evidence with regard to

proof of the partnership firm of the Silk Centre.

25. It is nobody's case that the landlord was not having

enough experience in the textile business and it is the

undisputed case that the landlord had sufficient experience in

textile business. The evidence on record shows that the

landlord is having only the suit mulgi and he has no other

premises to establish his felt need to run his own business in

textile. The tenant has set up the case that the landlord has

his own business in Pushpanjali Complex and he has also

pleaded that the landlord was also having another premises

which is under the occupation of a tenant. Both the Courts

below have held that such claim was not established by the

tenant. The evidence on record shows that the premises in

Pushpanjali Complex was owned by the brother of landlord's

father and he was running the business of his own. The

tenant himself admitted in the cross-examination that he has

not filed any evidence to the effect that the landlord was

having another premises which is in the occupation of the

tenant viz., Ferrow Alloys Ltd. The evidence also indicates

that the tenant was having a mulgi opposite to the suit mulgi

and he failed to give correct answer with regard to the rent he

was getting to the said premises. He avoided to give reference

to the rent what actually he was getting and he has also not

given any plausible explanation why he could not shift the

clothing business into his own suit mulgi which is let out to

the tenant. He has also failed to give the name of the tenant

also.

26. The lower appellate Court has greatly relied upon the

consistent admission of the landlord althrough with regard to

his claim of occupation as businessman. The lower appellate

Court failed to consider that the landlord was managing the

business of his father being the Manager of the Silk Centre.

There is a clear-cut admission from the tenant to the effect

that the Silk Centre is being run by the father of the landlord.

When the landlord, as the Manager, was managing the

partnership firm in which his father was one of the partners,

any prudent person placed in the same circumstance like the

landlord would claim that his occupation as a businessman

and not as an employee under a firm in which his father was

one of the partners.

27. The lower appellate Court has also greatly prejudiced by

the admission of the landlord in his cross-examination that

receipts are signed either by himself or by his Manager. The

words 'his Manager' have been misconstrued as the Manager

working in the Silk Centre. The lower appellate Court felt

that when there is another Manager in the Silk Centre, the

landlord's claim of Manager in the Silk Centre has not been

accepted. Such appreciation by the lower appellate Court is

erroneous.

28. It is to be noted that the tenant cannot dictate the terms

to the landlord. When there is evidence to the effect that the

landlord wanted to establish his own independent business

with the experience he got from the partnership business of

his father, no law would say that he cannot establish his

independent business simply because he was managing the

business of his father, which is also a partnership firm in

which his father was one of the partners. The lower appellate

Court has not given any finding to the effect that the

requirement and need shown by the landlord was a mere

pretence or pretext to wrongfully throw out the tenant from

the suit premises. When such findings are not there, and

when there is ample evidence to establish the desire to

become a requirement, and when such a requirement was

coupled with the object element of need to establish the

independent business of the landlord in textile business in

the background of the ample experience which he got from

the business of his father, such evidence cannot be brushed

aside in accepting the bona fide requirement of the landlord.

29. As per the decisions cited supra, when a prima facie

case of requirement is established by the landlord, there is a

presumption in favour of the landlord to the effect that the

requirement is bona fide and it is for the tenant to rebut such

a presumption by convincing evidence that the need projected

by the landlord is not honest, genuine and conceived in a

good faith. Such evidence is not lacking in the present case.

Therefore, the impugned judgment of the lower appellate

Court requires to be set aside.

30. The lower appellate Court also greatly prejudiced by the

fact that the landlord has failed to plead and produce the

partnership deed which runs the Silk Centre. According to

the lower appellate Court, there is suppression of material

facts. This conclusion of the lower appellate Court is

erroneous. The reason is that non-pleading of business of

Silk Centre is being run by the partnership firm is not a

material fact. If the Silk Centre is run by the landlord and

there is evidence to the effect that Silk Centre is owned by the

landlord and if that fact is suppressed, it amounts to material

suppression. That is not the case in the present set of facts.

Therefore, the lapse on the part of the landlord in fully

describing the partnership details of the firm which runs the

Silk Centre has no material bearing in adjudicating the bona

fide requirement of the landlord.

31. In the result, the Civil Revision Petition is allowed and

the judgment dated 08.11.2010 in R.A.No.159 of 2010 on the

file of the Additional Chief Judge, City Small Causes Court,

Hyderabad is set aside and the order of the Additional Rent

Controller, Secunderabad in R.C.No.143 of 2007, dated

31.03.2010, is confirmed. The tenant is directed to vacate the

suit premises within one month from the date of this order,

failing which, the landlord can take appropriate steps as per

law that are available to him for eviction of the tenant. There

shall be no order as to costs. Miscellaneous petitions, if any,

pending, shall stand closed.

________________ M.LAXMAN, J Date: 11.02.2022 TJMR