D J Abhay Shankar, Secunderabad vs Smt. M. Sandhya Rani, ...
2022 Latest Caselaw 1215 Tel

               HON'BLE Dr.JUSTICE B.SIVA SANKARA RAO
                Civil Revision Petition No.5056 of 2015
ORDER

The revision is preferred by the Landlord impugning the

order, dt.14.09.2015 in R.A.No.93 of 2014 passed by the

Addl.Chief Judge, City Small Causes Court, Hyderabad, by setting

aside the order,dt.11.03.2014 in R.C.No.164 of 2012 on the file of

the Prl.Rent Controller, which is allowed with the contentions in

the grounds of revision that the order of the Court below is

contrary to law, and the lower appellate Court failed to either

apply the case law or to discuss several of the decisions that were

cited at the bar. The lower appellate Court erred in reversing the

orders of the eviction passed by the trial Court considering basic

concept of bonafide requirement of additional accommodation to

the Revision Petitioner who had successfully pleaded and proved

before the trial Court all the criteria including experience

readiness, finances and other aspects. The lower appellate Court

did not consider the fact of requirement of additional

accommodation for the use of school office by the Landlord which

fact was already stated in the eviction petition and also the chief

examination of P.W.1. The lower appellate Court erroneously

relied upon rough sketch in which not given the dimensions of any

of the shops which are on either side of the petition schedule

mulgi. Hence, the order of the lower appellate Court is liable to

be dismissed by confirming the order of the trial Court.

2.The case in R.C.No.164 of 2012 filed by the revision

petitioner-Landlord against the Revision respondent-Tenant is

that the Revision petitioner is the owner of the premises bearing

No.3-5-214, Laxminagar, Picket, Secunderabad and has been

running a school in part of premises under the name and style as

Vedavathi Memorial High School and he requires the schedule

property as additional accommodation for the school office. He

further submitted that the respondent's mother by name

V.Savithiri had obtained the schedule property on rent and

carrying on tailoring business there in the name and style as Sona

Tailor. Since the schedule property was bonafidely required, the

revision petitioner requested the respondent's mother to vacate

the premises and hand over the vacant mulgi but she failed to

vacate for which he filed a case for eviction in R.C.No.155 of 2008

on the file of the Addl.Rent Controller, Secunderabad.

Subsequently the mother of the respondent died on 06.12.2008

and that case was dismissed for default on 15.12.2009. After the

death of respondent's mother, the respondent is continuing in the

schedule property and has been carrying on tailoring business in

the name and style of 'New Sona Tailors". The revision petitioner

also requested the respondent to vacate the schedule mulgi but

she failed to do so. Then the petitioner got issued a legal notice

on 07.05.2012 to the respondent by terminating the tenancy and

calling upon to vacate the schedule mulgi under Ex.P.1 which is

acknowledged by Ex.P.3 and issued reply under Ex.P.4

dt.28.05.2012 but refused to vacate the mulgi.

3. The respondent's counter contest, while admitting

tenancy, denying eviction petition averments including bona fide

requirement and entitlement of premises to vacate are that the

rent of Rs.300/- p.m. was enhanced from time to time to the

present one at Rs.1551/- p.m. exclusive of the electricity

charges. Recently the revision petitioner stopped providing

drinking water and also prevents usage of common toilets to evict

one way or other so to let out the schedule property to third

persons for more rent. The petitioner is having 10 mulgies in the

premises No.3-5-214 and also having open place inside the school

premises and first and second floors are let out to several

tenants. If the revision petitioner is in need of additional

accommodation for school office and the requirement of the

schedule premises is bona fide, he can occupy the first floor

which is very convenient and spacious than the schedule mulgi.

She further submitted that the entire family of her is depending

on the income of the tailoring business running in the schedule

property and if she is evicted, she would suffer irreparable loss

and hardship and sought for dismissal of the eviction petition as

not bonafide and the leasehold premises in her tenancy no way

required by the eviction petitioner.

4. During the enquiry, on behalf of the petitioner besides

his mother(GPA) as P.W.1, cause examined one M.R.Karanchander

as P.W.2 and got marked Exs.P.1 to P.6 (copy of legal notice,

dt.07.05.2012 by the petitioner to the respondent, Postal receipt,

Postal acknowledgment, reply by the respondent to the

petitioner, dt.28.05.2012, cover of courier service and notarized

GPA in favour of P.W.1 by the petitioner, dt.30.04.2013). On

behalf of the respondent, herself examined as R.W.1 and cause

examined Smt. R.Ambika and Sri J.Kumar as R.Ws.2 and 3 and no

documents are marked. After hearing of both sides and from

perusal of the material on record, the eviction petition was

allowed holding that the Landlord requires the schedule premises

bonafidely for their personal occupation to use it as an office of

the school run by him and directed the respondent to vacate and

hand over vacant possession of the petition schedule property

within three months from the date of order, failing which the

Landlord is at liberty to evict the respondent through due process

of law.

5. When the same is impugned by the respondent-tenant

before the lower appellate Court, the lower appellate Court

reversed the order of the trial Court, holding that the trial Court,

in relation to the requirements of the petition schedule mulgi for

additional accommodation, went wrong on surmises and blamed

for the shortcomings in the eviction petition and also in the

evidence in chief-affidavit of P.W.1. Particularly the contents of

the para-17 of page No.11, it can be said that the trial Court

without any adherence to the evidence on record and also the

eviction petition pleadings, came to a conclusion that the petition

schedule property is suitable and convenient to the Landlord as

additional accommodation for the office purpose of the school.

Upon a close scrutiny of the evidence on record, it is clear that

the Landlord by hook or crook intended to evict the tenant from

the petition schedule mulgi on the false ground of requirement of

the petition schedule mulgi only having failed in his earlier

attempt to evict the mother of the tenant and enhancement of

the rents. The Landlord by suppressing material facts of owning

several mulgies at a row and also the existence of two rooms on

the back side of the sweet shop in which at present the office of

the school is being run, not entitled for the relief which he

sought, and held that the trial Court failed to notice all those

things and on surmises and without basis concluded the case in

favour of the Landlord though there is no worth evidence to

accept the case of the Landlord.

6. Impugning said reversal finding of the lower appellate

Court by setting aside the eviction order of R.C.No.164 of 2012 of

the Rent Controller, the present revision is maintained.

7. Heard both sides at length and perused the material on

record.

8. Even from the case of the respondent/tenant before the

Rent Controller including from the evidence on record in her side

among R.Ws. 1 to 3, leave apart the evidence of P.Ws. 1 and 2,

the school is running in the ground floor and the office of the

school is inside with no feasibility and free approach. Once such is

the case, it is for the Landlord to choose among several premises

which is convenient for the purpose of the additional

accommodation in use. The tenant cannot dictate the terms if at

all other shops in the first floor are convenient for the office

purpose of the school and in the premises under occupation of the

eviction petitioner. Once such is the case, the observations of the

lower appellate Court, in reversing the reasoned findings of the

trial Court which is fresh in mind of the facts having recorded the

evidence with an opportunity to observe the demeanor of the

parties even, is unsustainable, even merely because another view

is possible. In this regard though the scope of revision is limited

including u/sec.22 of the Act, to interfere on any illegality,

impropriety and appreciate the facts only to that limited extent

and not as if a Court of appeal of entire matter is at large for re-

appreciation or fresh appreciation of the facts like a first

appellate Court. Once the trial Court's finding in respect of the

requirement of the Landlord even disputed by a tenant

concerned, the P.W.1-mother of the petitioner/Landlord who is

the GPA holder covered by Ex.P.6, deposed of the school is

running with name 'Vedavati Memorial school' backside of the

schedule mulgi and they are suffering a space constraint and this

schedule mulgi is required for the additional accommodation for

the office purpose of the school, what R.W.1/respondent-tenant

stated is the petitioner got 10 Mulgies in House No.3-5-214

besides open space inside the school premises and having first and

second floors and the first floor is let out to residential purpose

and second floor there are several portions which are let out to

different tenants and the motive behind filing of the case is to

evict and let out to the higher rent but not bonafidely required

for the school office purpose and she also pleaded hardship to

face if evicted as her family is totally dependant on tailoring

business. Earlier dismissal of the eviction petition for default from

death of the mother of the eviction respondent in

R.C.No.155/2008 cannot be called a case on merits to say in the

earlier round of litigation failed to vacate, came with the present

petition as an offshoot is nothing but for the lower appellate

Court to make a mountain of a mole hill therefrom. Even R.W.2,

no other than the maternal aunt of R.W.1, deposed that backside

room of the schedule property is presently in use of office of the

school and the P.W.1 is looking after the school. R.W.2 also

stated about the petitioner and his mother (GPA holder) have

been running the school and P.W.1 is looking after the affairs of

the school on behalf of the petitioner therefrom. From this, it

cannot be said that P.W.1 has no personal knowledge of the facts

being the GPA holder of the petitioner-cum-mother to depose in

appreciation much less for his non-coming to witness box to draw

any inference against the petitioner. The school strength is more

than 250 to 350 students is also borne by record to accommodate

from Nursery to 10th class and there are only 12 rooms in which

the school is running for all the classes and it clearly shows

including from the evidence of P.W.1 that there is a space

constraint therefrom. When such is the case, the hardship suffers

from the respondent is outweighed by the hardship suffers by the

Landlord when compared with, which was ignored even by the

lower appellate Court without proper appreciation of the findings

in this regard by the Rent Controller particularly from paras-19 to

22. The trial Court also observed of the rough sketch filed clearly

shows the existence of the accommodation and space constraint

and other occupations and thereby there is nothing suppressing

about the shops possessed by the Landlord besides the premises

sought for eviction. The lower appellate Court's observation of

evidence of P.Ws.1 and 2 shows that there are 9 mulgies including

the petition schedule mulgi in the ground floor and first and

second floors of the building with residential portions and there is

no plea by the Landlord regarding thee other premises concerned

as discussed supra the Rent Controller really observed of there is

no suppression of existence of other portions and the rough

sketch clearly shows the other mulgies and the space constraint

therefrom. The lower appellate Court at para-13 even referred

the rough sketch attached to the eviction petition and it speaks

about two classrooms and two office rooms indicated therein,

what the lower appellate Court observed further without

referring to the Rent Controller findings discussed supra is two

rooms but from the rough sketch shows for office two rooms and

there is no plea regarding the office accommodation not

sufficient to order eviction. In fact, the evidence on record

including R.Ws. 1 and 2 also speaks of the office is located in a

small room on the back side and the remaining rooms are class

rooms to accommodate more than 250 to 300 students for the

classes 1st to 10th class and the petitioner's mother is looking after

the affairs of the school who is the P.W.1. once such is the case,

the reason of space constraint and requirement of additional

accommodation of Landlord outweighs hardship pleaded by the

tenant. The lower appellate Court without properly adverting to

it, simply held of the eviction petition is filed only to evict and

to let out for more rent on surmises, is unsustainable.

9. Even coming to the additional evidence petition filed by

the tenant in I.A.No.255 of 2015 before the lower appellate Court

referred at para-23 it categorically observed by the lower

appellate Court that such request cannot be permitted. But the

lower appellate Court not even discussed of what is the additional

evidence how it is required to consider. Once such is the case and

there is no specific plea much less any cross-appeal or revision

against the dismissal of the additional evidence petition of the

tenant, this Court cannot consider that aspect in revision. Having

regard to the above, the reversal judgment of the lower appellate

Court is unsustainable and is liable to be set aside.

10. Accordingly, the revision is allowed by setting aside the

lower appellate Court's judgment and by confirming the Rent

Controller's eviction order and however by considering the

hardship of the tenant to secure fresh accommodation meantime

and vacate, failing which after 31.12.2018 by virtue of this the

Landlord is entitled to execute the same to cause evict the tenant

for the tenant not entitled to for further time at any cost and it is

made clear that in the meantime, the RC respondent (revision

respondent) has to pay as use and occupation charges of

Rs.2,000/- per month from 01.01.2018 onwards in stead of

existing rent of Rs.1551/- per month.

Consequently, miscellaneous petitions, if any pending in

this revision, shall stand closed.

_______________________ Dr. B. SIVA SANKARA RAO, J Date:25.01.2018 vvr