ORDER
P.S. Narayana, J.
1. This Civil Revision Petition is directed against the order dated 29-12-1999, made in R.A.No. 504 of 1994 on the file of the learned Additional Chief Judge, City Small Causes Court, Hyderabad, whereby, the learned Additional Chief judge dismissed the appeal of the landlords and confirmed the order of the Rent Controller passed in R.C.No. 1175 of 1988.
2. The revision petitioners herein are the landlords and the respondent herein is the tenant of the schedule premises in R.C.No. 1175 of 1988 on the file of the learned Principal Rent Controller, Hyderabad. For the purpose of convenience, the parties are referred to as arrayed in the eviction petition.
3. The petitioners-landlords filed the eviction petition under Section 10(3)(c) of A.P. Rent Control Act, (for short ‘the Act’) seeking eviction of the respondent-tenant on the ground of petitioners’ requirement for additional accommodation.
4. The case of the petitioners-landlords before the Rent controller is that the 1st petitioner is a partnership firm carrying on hotel business of lodge under the name and style of “Coromondal Lodge” in the premises of earlier Brindavan Hotel, bearing Municipal Nos. 658/5 to 7 and three floors with a backside restaurant situated at Nampally Station Road, Hyderabad. The first, second and third floors are rested on the ground floor shops bearing Municipal Nos. 5-8-657, 658, 658/1 to 8 situated at Nampally Station Road. The respondent is the tenant in respect of the mulgi bearing No. 5-8-658/6. The petitioner’s firm purchased the above mulgi under a registered sale deed dated 5-9-1985 and 10-5-1985 from the previous landlords of the respondent, namely, Sri P. Gopalakrishna Reddy and P. Suryanarayan Reddy and therefore, the petitioner’s firm became the landlord of the respondent in respect of the above mulgi. It is also pleaded that the previous owners of the above mulgi addressed a letter dated 12-05-1985 to the respondent informing him about the sale transaction and asking him to pay rents to the petitioners’ firm from May, 1985 onwards and that the respondent has acknowledged the said letter. It is also stated that the respondent is carrying on business of footwear under the name and style of M/s. SONA FOOTWEAR in the suit premises and the quantum of rent is Rs. 350/- excluding electricity consumption charges. It is also pleaded that the petitioners’ firm is temporarily using the stair case room for reception and it has become a problem to the petitioners’ firm to accommodate the Manager, telephone cabin, receptionist, accounts section and waiting lounge for customers, that the present accommodation is in the occupation of respondent ant that the petitioners’ firm also filed eviction petitions in respect of other two mulgies also bearing Nos. 5-8-656/6 and 7 which are in the occupation of other tenants. It is also pleaded that the petitioners’ firm could not install lift even after having provision of lift for lack of accommodation and petitioners’ firm has to take construction of 4th floor to create further lodging accommodation for the customers and the requirement of the petitioners’ firm for additional accommodation of the mulgi in the occupation of the respondent for reception etc., is bona fide.
5. The respondent filed his counter admitting the jural relationship of landlord and tenant between the petitioners and himself. However, it is pleaded that the petitioners have no right to seek eviction of the respondent under Section 10(3)(d) of the Act and the petitioner is not competent to file this petition in the capacity of firm and that as there is no compliance of mandatory provisions embodied in Section 69 of the Partnership Act the petition is liable to be dismissed. It is also pleaded that there are also other buildings on the site including the building occupied by Shalimar and that the building occupied by the respondent has been allotted an independent separate Muncipal No. and is not part of any other building and as such, the provisions of Section 10(3)(c) are not applicable in the . present facts of this case and that vast accommodation is in occupation of the petitioners which is more than the requirement of the petitioners. He also stated that the petitioner deliberately suppressed the various sale transactions in respect of other independent buildings from the same vendor. He denied that the petitioner is undergoing inconvenience for want of accommodation for its business. He stated that the petitioner is occupying the vast building in the first floor, second floor and third floor of the building, that the petitioner is having the accommodation of his choice and using the same as reception room and the petitioner has recently constructed a separate hall for Manager’s Office on the terrace of the building occupied by M/s. Shalimar which is being used as office and Manager’s Room, that there is a separate accommodation for telephone, cabin for receptionist and accounts section and that the tenant Shalimar vacated the very big reception room and other adjoining premises and have inducted the petitioner in vacant and actual possession of the same. He denied that present accommodation is not sufficient for petitioners’ firm and that there is no accommodation to install lift. He also stated that the said building is an independent one having an independent access and it has always been used as an independent building by the previous tenants and also let out as such of the petitioners’ separately sold the mulgies bearing Nos. 5-8-658/3, 5-8-657/1 to the previous tenants under different sale deeds and that the requirement of the petitioner is not bona fide. He also stated that in the event of the petition being dismissed, there will be no hardship to the petitioner, that the petitioner acquired the buildings in the rear side of the Mulgies Nos. 5-8-658,658/1 to 7 in the ground floor and occupied the same and that the business in the demised premises is the only source of income for the respondent and for the family members of the respondent and the hardship that will be caused to the respondent will out-weigh the advantage to the petitioner and that in the event of respondent being evicted from the suit mulgi and thrown on roads, the respondent and his family members will be deprived of their source of income and the petition of the petitioners may be dismissed as the claim of the petitioner is not bona fide.
6. To substantiate the claim of the petitioners, the Manager of the petitioners’ firm was examined as P.W.1 and documents Exs.P-1 to P-11 were marked. On behalf of the respondent-tenant, R.W.1, who is the son of the respondent as his G.P.A. Holder was examined and documents Exs.R-1 to R-20 were marked.
7. The learned Rent controller on appreciation of the evidence of both oral and documentary, and in view of the relative hardship under Section 10(3)(c) of the Act, nagatived the relief of the petitioners-landlords. Aggrieved by the same, the petitioners-landlords preferred an appeal before the learned Additional Chief Judge, City Small Causes Court, Hyderabad in R.A.No. 504 of 1994. Before the lower appellate Court, the respondent-tenant filed some additional documents and the same were marked as Exs-R-21 to R-29, which are photos, paper publications and a copy of the sale deed. The lower appellate Court on a perusal of the entire material available on record, at paragraph Nos. 12 and 13, certain findings had been recorded in this regard and observed that the facts gave raise to a doubt regarding the pressing need of the petitioners-landlords and ultimately, dismissed the appeal. Aggrieved by the same, the present civil revision petition is preferred by the unsuccessful petitioners-landlords before both the Courts below.
8. The petitioners-landlords moved an application in CMP No. 1484 of 2005 stating certain subsequent events of the case.
9. The respondent-tenant filed a counter affidavit denying certain allegations and also explaining his stand. Further he had given an undertaking at paragraph 8 of the counter Affidavit that the subject premises will be put to use for the purpose for which eviction is sought for. The affidavit of one Sri K. Lakshminarayana who is a third party and at present lessee of the premises bearing No. 5-8-658/6 also was filed.
10. Heard both sides.
11. Sri Nalin Kumar, learned Counsel representing the petitioners-landlords would submit that the requirement of additional accommodation to the petitioners-landlords is definitely a bona fide requirement since without securing the premises in question they could not develop the property for the purpose, for which, the same had been purchased. The learned Counsel also explained that the findings recorded by the lower appellate Court at paragraph Nos. 12 and 13 definitely cannot be sustained and vague findings had been recorded as though some premises had fallen vacant and the petitioners had let out the same without specifying the names. Learned Counsel also would maintain that the landlord is the best judge to decide which premises is required and how to put the premises into use and the tenant cannot dictate terms in this regard.
The findings recorded by the Rent Controller cannot be justified and confirming the order of the Rent Controller by the lower appellate Court also cannot be sustained. Learned Counsel also would submit that though the application filed under Order 41 Rule 27 CPC, as such, is not maintainable before this Court as a revisional Court under the Act, may be this application was thought of to bring to the notice of this Court the subsequent events. Further the counsel would contend that without affording any opportunity to the parties, the lower appellate Court placed reliance on Exs.R21 to R29. Strong reliance was placed by the learned Counsel in the case of Raghavendra Kumar v. Firm Prem Machinery & Co., , Shashi Kapila v. R.P. Ashwin, and also in the case of Joginder Pal v. Nava Kishor Behal, . Learned Counsel made certain submissions relating to comparative hardship and would contend that in the peculiar facts, the comparative hardship would fall into insignificance especially in view of the fact that the premises in question is required for the purpose of development and running of a lodge and it is for the landlords to decide how to utilize the property and the tenant cannot dictate terms in this regard.
12. Per contra, Sri Vilas V. Afzulpurkar, learned Counsel appearing for the respondent-tenant would submit that the application had been filed narrating subsequent events and apart from the subsequent events, and even in the light of the findings recorded by the lower appellate Court at paragraph No. 13, it is clear that there is no pressing bona fide need for the petitioners-landlords and their need is only a fancy need and that may be the landlords require exorbitant rents and they do not require the premises for the purpose, for which the eviction had been sought for. The undertaking also is not a bona fide one, for the reason even the premises, which had been secured, had been let out to another party and it is not in controversy. Mere filing the affidavit of the third party before this Court explaining the circumstances would not alter the situation in any way. Hence the findings recorded by the lower appellate Court do not suffer from any legal infirmity. The learned Counsel also had explained about the comparative hardship stating that this aspect was not rightly considered by both the courts below since that need was not felt by the lower appellate authority inasmuch as the main ground itself had been negatived by recording the reasons. Learned Counsel placed strong reliance in the case of Deena Nath v. Pooran Lal, 2001 AIR SCW 2534.
13. I have perused the entire material available on record and the findings recorded by both the courts below.
14. The learned Rent Controller on appreciation of the evidence, recorded a finding that he is satisfied that the requirement of the petitioner is bona fide but, however, (the lower appellate court), while deciding the relative hardship, out-weighed the hardship of the landlords and ultimately negatived the relief of the petitioners-landlords and the same was carried on by way of an appeal in R.A.No. 504 of 1994. The lower appellate authority, at paragraph-9, framed the points for consideration and discussed the aspects at paragraph Nos. 10 to 13 and ultimately, arrived at a conclusion that there is no pressing need on the part of the landlords to require the premises by way of additional accommodation and accordingly, negaived the relief. Thus, virtually the lower appellate authority had set aside the findings recorded by the learned Rent Controller on the question of bona fide requirement and in relation to the additional accommodation too. It is pertinent to note that before the lower appellate authority, Exs.R-21 to 29, the photos, paper publications and a copy of the sale deed were produced by the respondent-tenant most probably to show that there was no pressing need requiring additional accommodation by the petitioners-landlords and the same is not bona fide or otherwise they are trying to dispose of the property or sell away the property. It is contended that no opportunity had been given in this regard.
15. Apart from this aspect of the matter, affidavit of one K. Lashminaraya, who is at present in occupation of the premises bearing H.No. 5-8-658/6 also had been filed along with the counter affidavit before this Court. The counter affidavit filed opposing the application brought the subsequent events to the notice of this Court and several additional facts had been averred. No doubt, an undertaking also had been specified at paragrapah-8 of the counter affidavit. It is no doubt true that application, under Order 41 Rule 27 CPC can be filed in appeals in strict sense and cannot be made applicable and cannot be extended to revisional proceedings under the Act. But, however, it is settled law that in rent control cases, subsequent events can be brought before the court for the purpose of deciding the matter. Learned Counsel for the petitioners-landlords placed strong reliance on the decision cited supra (1), wherein, the Apex Court held that in a case of bona fide requirement of landlord it is a settled position of law, Landlord is the best judge of his own requirement for residential or business purposes and has complete freedom in the matter. Reliance was also placed by the learned Counsel for the petitioners-landlords in the decision cited supra (2), wherein, it was held that bona fides of the landlord cannot be questioned when the premises is bona fide required by the landlord solely on the ground that sometime in the past he had wished to sell the tenanted premises. In the decision cited supra (3), the Apex Court held that bona fide requirement of landlord-Rent Control statute permitting eviction if landlord requires the building “for his own use”- Expression “for his own use”-Scope and manner of interpretation-Held, covers the requirement not only of the landlord but also of his normal “emanations”.
16. On the other side, the learned Counsel representing the respondent-tenant has also placed strong reliance in the decision cited supra (4), which no doubt arose under M.P. Accommodation Control Act (41 of 1961) wherein at paragraph-15, it was held that:
“From the discussions in the foregoing paragraphs, the question that arises for determination is whether in the facts and circumstances of the case, the high Court was justified in interfering with the concurrent judgments of the Courts below in holding that the plaintiff required the premises bona fide for use of his son? Section 12(1)(f) of the Act under which the eviction of the tenant was sought and granted by the lower Courts, reads as follows:
“Section 12. Restriction on eviction of tenants.-(l) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely:
(a) to (e) xxx xxx xxx xxx
(f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.”
The section, on a plain reading, is clear and specific. The criteria to be fulfilled for an order of eviction under the provision are:
(i) that the non-residential accommodation is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons; and
(ii) that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.
(Emphasis supplied)
The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bona fide which is intended to avoid the mere whim or desire. The ‘bona fide requirement’ must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. The requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in Sub-section (e) of Section 12 (1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The judgment/order of the Court/authority for eviction of a tenant which does not show that the Court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/ order in appeal/second appeal/revision. Bona fide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the Court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bona fide requirement would cease to be a mere finding of act, for such erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil procedure.”
17. Certain submissions were made by the learned Counsel representing the petitioners-landlords that though the language is not exactly the same virtually in substance as the language being one and the same in both the cases the said decision is applicable to the present facts of the case. Be that as it may, this is a case where landlords require the premises for the purpose for which they actually purchased the property and to that extent, P.W.1 deposed in his evidence that the accommodation is not sufficient. It is no doubt true that there is some material available on record that subsequently, certain mulgies were recovered from the tenants and one such had been let out to a third party and some explanation is being given by the landlords in this regard. It is also pertinent to note that the Rent Controller, negatived the relief as far as the main ground for eviction is concerned on the ground of comparative hardship. But the lower appellate Court received some additional documents filed by the respondent-tenant and recorded certain findings without affording proper opportunity to the landlords. As can be seen from the Judgment of the lower appellate Court, at paragraph Nos. 12 and 13, it is pertinent to note that the lower appellate court while dismissing the appeal had not considered the comparative hardship, most probably, since the main ground itself had been negatived.
18. Be that as it may, in the light of the peculiar facts and circumstances of the case and inasmuch as certain subsequent events were brought to the notice of this Court, taking into consideration the third party affidavit filed along with the counter affidavit of the respondent-tenant, it is a fit case where an opportunity should be given to the parties to let in further evidence in this regard. It is true that the tenant always would be trying to postpone the evil day and the landlord would always be trying to get the relief at the earliest point of time.
19. But, however, in the peculiar facts and circumstances of the case and in the light of the subsequent events, this Court is left with no other option except to remand the matter to the lower appellate authority to afford opportunity to both the parties on all the aspects referred to supra and dispose of the matter at the earliest point of time, in view of the fact that it is a long pending litigation.
20. Accordingly, the civil revision petition is hereby allowed to the extent indicated above. It is made clear that the petitioners-landlords are at liberty to adduce further oral and documentary evidence before the appellate authority to substantiate their contentions on the aspect of subsequent events and the tenant also is at liberty to do so in this regard. No costs.