CRP/4356/2013 of RC Agarwal Vs Madigla Anuradha on 31 December 2013

ORDER:

This Revision is filed challenging the order dt.02-08-2013 in R.A.No.4 of 2010 of the Principal Senior Civil Judge, Ranga Reddy District at L.B.Nagar ( for short’appellate authority’) confirming the order dt.11-12-2009 inR.C.No.15 of 2008 of the Rent Controller-cum-AdditionalJunior Civil Judge-cum-XVIII Metropolitan Magistrate,Cyberabad at Malkajgiri.

2. The petitioner herein is the tenant of therespondent. The respondent filed the above R.C foreviction of petitioner under Section 10(3)(a)(iii) (b) of theAndhra Pradesh Buildings (Lease, Rent and Eviction)Control Act, 1960 (for short “the Act”) on the ground of herbonafide and personal requirement.

3. The respondent owns mulgis bearing D.no.s 11-106 to 11-108 and her sister R.Arunjyothiowns mulgisbearing D. no.s 11-103 to 11-105 in a row in the groundfloor abutting the main road near Golnaka, Alwal,Malkajgiri Mandal in Ranga Reddy District in a singlebuilding, but divided by internal brick walls. One suchmulgi bearing D. No.11-107 owned by respondent is in theoccupation of the petitioner on a monthly rent of Rs.400/-excluding electricity charges. This mulgi had been ownedby respondent’s mother previously and had been gifted toher later.

4. The respondent filed the RC contending that herfather advised her and her sister to establish a SuperMarket in all of the 6 mulgis, that her father was havingexperience in carrying general stores business and promised to guide them in doing the Super Marketbusiness, that she and her sister initiated evictionproceedings against other tenants also on the ground ofbonafide requirement, the respondent sought eviction ofpetitioner from the above premises bearing D.No.11-107for her bonafide requirement for commencing a SuperMarket business along with her sister by makingalterations to all 6 mulgies. The respondent also allegedthat she is not in occupation of any other non-residentialbuilding in Alwal Municipality.

5. The petitioner filed a counter opposing thisapplication on the ground that if he is evicted forestablishment of Super Market by respondent, he wouldbe deprived of his livelihood and that respondent, hersister and her other family members are well establishedin their own business and it is not necessary for them todeprive him of his livelihood. He further alleged thatrespondent and her sister can have their own business inthe first floor above the mulgies, which is also in theiroccupation, and they can establish the Super Market inthe 1[st] floor also.

6. Before the Rent Controller, the respondentexamined herself as P.W.1 and marked Exs.P-1 to P-4. The petitioner examined himself as R.W.1 and markedEx.R-1.

7. By order dt.11-12-2009, R.C.No.15 of 2008 was

allowed. The Rent Controller held that although previouslyeviction application filed by mother of respondent wasdismissed, it would not bar a subsequent eviction petitionby respondent if there are changes in circumstances. Itheld that even if the father of respondent owns anothershop in Alwal Municipality where the R.C. scheduleproperty is situate, it would not help the petitioner as thesaid property did not belong to respondent. It also notedthat Ex.P-1 legal notice had been issued by respondent topetitioner stating that she wanted to open a Super Marketalong with her sister in the R.C. schedule premises alongwith adjacent mulgies, but no reply notice had been givenby petitioner to it. It took note of the fact that petitioneradmitted that the father of respondent had done kiranabusiness earlier, that other accommodation available torespondent in the 1[st] floor is only a residentialaccommodation and not non-residential accommodationand therefore, held that the respondent can seek evictionof entire building or any one or more than one unit in thesame building. It also held that petitioner was not able toprove that respondent is having other non-residentialpremises of her own. It rejected the plea of petitioner thatrespondent did not have any previous experience in theSuper Market business on the ground that it was notnecessary for respondent to prove that she possessesthe know-how for doing the said business. It held that nosuggestion was given to respondent by petitioner that the shop in Alwal previously owned by her father is sufficientto do Super Market business. It held that thelandlady/respondent is the best judge of her requirementfor residential or business, that she has got completefreedom in the matter and the choice of respondent of themulgi in the occupation of petitioner for starting herbusiness, cannot be faulted.

8. Challenging the same, the petitioner filedR.A.No.4 of 2010 before the appellate authority.

9. By order dt.02-08-2013, the said appeal wasdismissed.

10. The appellate authority held that respondentand her sister both had initiated proceedings against theirrespective tenants; that the petitioner was not able toprove that other alternative accommodation is available tothe respondent; that 1[st] floor of the building is not suitableto establish a Super Market even it was available to therespondent; and the respondent is the best judge and hascomplete freedom in regard to the choice of the premisesrequired for her occupation.

11. Challenging the same, this Revision Petitionis filed.

12. Heard Sri A.S.C.Bose, learned counsel forpetitioner and Sri Mohammed Imran Khan, learnedcounsel for respondent.

13. The learned counsel for petitionercontended that the orders passed by the Courts below arecontrary to law and are unsustainable; that respondent isnot the owner of the R.C. Schedule premises and she hadobtained the property from one Smt.Vasantha, her mother;that there was respondent had no bonafide requirement ofthe premises for establishment of Super Market along withher sister; that respondent failed to prove that she let outthe premises to petitioner; that previously an attempt toevict the petitioner by the mother of respondent failed inC.R.P.No.5661 of 1998; that respondent is already inoccupation of one of the mulgies in the same premises,and therefore, the Revision be dismissed.

14. The learned counsel for respondent, on theother hand, contended that Smt.Vasantha is none otherthan the mother of respondent; she had gifted the R.C.schedule premises to the respondent; that petitioner asR.W.1 had admitted that he is paying rent of the R.C.schedule premises only to the respondent as a landladyby depositing the same into her bank account andtherefore, he is not entitled to dispute the title ofrespondent to the R.C. schedule premises. He thereforecontended that the order in C.R.P.No.5661 of 1998 filedby mother of respondent against petitioner has norelevance to the present proceedings and there is achange of circumstances warranting eviction of petitioner. He also contended that 1[st] floor of the premises is residential accommodation of respondent and not suitablefor starting a Super Market. He contended that both theRent Controller and appellate authority properlyappreciated the evidence and directed the petitioner tovacate the R.C. schedule premises rightly and the saidorder did not warrant any interference by this Court underSection 22 of the Act.

15. I have noted the submissions of both parties.

16. The petitioner as R.W.1 admitted in hisevidence that he is paying rent of the R.C. schedulepremises to the respondent as a landlady by depositingthe same in her bank account. Ex.P-3 statement ofaccount of respondent dt.01-07-2005 proves this fact. Therefore, it is not open to petitioner now to raise the pleathat respondent is not the owner of R.C. schedulepremises and her mother is the owner.

17. It is true that previously the mother ofrespondent had attempted to evict the petitioner from theR.C. schedule premises by initiating proceedings underthe Act, but such an attempt failed as can be seen fromEx.R-1, the order in C.R.P.No.5661 of 1998. I am of theopinion that the said order cannot be of any assistance tothe petitioner because subsequently, the title to theproperty had vested in the respondent through a gift madeby her mother and the changed circumstances are now

being pleaded as a ground for eviction i.e. that the R.C.schedule premises along with 5 other mulgies adjacentthereto are all required to start a Super Market byrespondent and her sister with the assistance of herfather, who previously ran a general stores business. Itmay be that the floor above the R.C. schedule premises,is in occupation of respondent, but admittedly it was beingused for residential purposes. In any event, it is forrespondent to choose in which premises she intends tostart the Super Market business and it is not for petitionerto dictate to her that she should have the Super Market inthe 1[st] floor portion. The fact that father of respondent hada shop in the same area, is no doubt admitted byrespondent in her evidence, but since that shop does notbelong to respondent, the petitioner cannot raise the pleaof availability of other premises to respondent. The pleaof respondent is that the respondent and her sister wish tostart a Super Market by removing the internal walls of 6mulgies and by joining them and treating them as one unitfor starting the said business with the guidance of herfather, who earlier ran a general stores business. In thesefacts and circumstances, it cannot be said that therequirement of respondent is not bonafide.

18. I am therefore of the opinion that both theRent Controller and Appellate Authority have correctlyappreciated the evidence on record and directed evictionof petitioner from the R.C. schedule premises. So I do not therefore find any merit in the Revision. Therefore, it isdismissed.

19. However, time is granted to the petitioner tovacate the R.C. schedule premises upto 31-03-2014subject to the condition of the petitioner filing anundertaking within 4 weeks from the date of receipt of acopy of this order that he would deliver peaceful vacantpossession of R.C. schedule premises to respondent onor before the said date. He shall also pay arrears of rent, ifany, to respondent within 4 weeks from today. Further heshall pay rents for the months of December, 2013,January, 2014, February, 2014 and March, 2014 as andwhen they fall due. In default of filing such undertaking, ormaking payment of the arrears of rent, or rents for theabove referred months as per the above directions, thepetitioner shall be liable to be evicted forthwith from theR.C. schedule premises.

20. Accordingly, the Civil Revision Petition isdismissed. No costs.

21. As a sequel, miscellaneous

applications, if any, pending in this Civil Revision Petitionshall stand closed.

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JUSTICE M.S.RAMACHANDRA RAODate: 31-12-2013

LR COPY TO BE MARKED : YES/NOB/o.Vsv/*