ORDER
1. This revision petition is filed against the Judgment in RCA No.9 of 1991 on the file of the Subordinate Judge, Parvathi-puram (Rent Control Appellate Authority), dated 19-7-1993 setting aside the eviction order in RCC No.1 of 1986 on the file of the Rent Controller-Principal District Munsif, Parvathipuram, dated 7-10-1991.
2. The revision petitioner is the landlord of the demised premises, which is a non-residential building and he filed RCC No.1 of 1986 before the Rent Controller under Section 10(3)(a)(iii) of the A.P. (Lease, Rent and Eviction) Control Act, for short the ‘Act’, on the ground of bona fide personal requirement. The Rent Controller after examining the landlord on one side and the tenant as well as three other witnesses no the other side and after scrutinising Exs.A1 to A4 and B1 to B10, found that the landlord has established his bona fide requirement of starting a business in pharmaceuticals and accordingly allowed the eviction petition. The tenant preferred an appeal to the Appellate Authority, assailing the eviction order on various grounds and the learned appellate Judge on a reassessment of the evidence on record, came to a different conclusion and he reversed the findings of the Rent Controller on various grounds and allowed the appeal. The result was that the eviction petition stood dismissed by the appellate authority. Aggrieved by that Judgment reversing the findings of the Rent Controller, the landlord is in this Court with this revision petition.
3. A few facts necessary for proper
appreciation of the controversy that has arisen between the revision petitioner-landlord and the respondent-tenant are :
4. That the landlord is a qualified compounder and a pharmacist, having three major sons, who are unemployed graduates. Himself and his sons decided to start pharmaceuticals business at Parvathipuram, The demised premises bearing No,20504 is a shop which was let out to the tenant on a monthly rent. The shop bearing No.2053 which was to the North of the demised premises was also Jet out to another tenant by name Tuviti Venkata-ramana and he was got evicted by the landlord by initiating proceedings before the Rent Controller. The measurements of the demised shop and the northern shop put together are about 20′ in width and 35′ in length. The landlord requested the tenant-respondent herein, to vacate the demised shop as he wanted to start his own business, but he refused to vacate the same and hence, he filed RCC No.6 of 1978 and the same was contested by the tenant. Thereafter, the landlord fell sick and so he allowed the tenant to continue the tenancy and that earlier petition was closed on a compromise. While so, the northern shop which fell vacant required repairs, but the repairs could not be carried out and that required in the fall of its roof as well as the walls. As the landlord and his three sons wanted to start a wholesale and retail business in pharmaceutical, they wanted to construct a beautiful spacious shop with modern amenities, whereas the northern shop is too small and a space of 20 feet width ad 35 feet length is required for construction of a big medical hall, they required the demised premises so that they may demolish the present shop and construct a bigger one on the combined site of the shops bearing Nos.2053 and 2054. The landlord has sufficient financial capacity to start the above business and they have no shop room in their physical possession though there are 8 shop rooms within the municipal limits of Parvathipuram. It is, therefore, asserted
that the requirement of the landlord is a bona fide one. The landlord issued a registered notice, dated 4-3-1986 and the tenant in turn sent a reply notice elated 27-3-1986. Then the eviction petition is filed.
5. The tenant filed a counter denying all the material averments of the petition. The tenant was inducted in the year 1972 on a monthly rent of Rs.90/- and he has been paying the stipulated rent regularly and running his tailoring business with six sewing machines and 11 employees. RCC No.6 of 1978 was engineered for the purpose of enhancing the existing rent. As the landlord had no sustainable case, a compromise was entered into and the tenant agreed to pay Rs. 120/- per month and RCC No.6 of 1978 was dismissed terms of the above compromise. The landlord got the tenant of the northern shop evicted on the ground of bona fide requirement more than 8 years ago and he kept that shop vacant. Hence, the tiled roof was damaged and it was removed. The landlord started demanding the enhanced rent of Rs.500/-per month or to vacate the shop but the tenant did not agree. Then he got a trench dug by the side of the northern wall of the scheduled shop in such a way that the scheduled shop would collapse. Therefore, the tenant gave a telegraphic notice to the landlord to close the trench in order to safeguard the scheduled building and he also initiated proceedings under Section 133 of the Code of Criminal procedure before the Taluq Magistrate. Thereafter, he also filed OS No.84 of 1984 and obtained an interim injunction against the landlord and his sons, restraining them from interfering with the northern wall and the same was confirmed in appeal. It was then that the landlord conceived this design to harass the tenant and started refusing to receive the rent sent by Money Order for the month of February, 1986 onwards. A legal notice was issued on 27-3-1986 calling upon him either to accept the rent or name the Bank in which the tenant should deposit the rent. The landlord issued
a reply dated 5-4-1986 with false and frivolous allegations. The landlord is running a medical shop in the name of his father-in-law and his sons are employed and, hence, the landlord and his sons do not require the scheduled building and they have no intention to start any business. The landlord has no capacity to raise 5 lakhs of rupees to construct a cement slab building and he cannot invest further money for purchase of medicines etc. He has 8 shop rooms for which he has not filed eviction petitions as he is getting abnormal rents. The vacant shops on the northern side is quite sufficient to run any business. It was the tenant who gave a notice, dated 27-3-1986 in the first instance and thereafter the landlord gave a reply form Sri V. Seetharama Murthy on 5-4-1986 and the alleged cause of action is only imaginary.
6. On the above pleadings, the learned Rent Controller set the following point for consideration :
“Whether the petitioner is entitled to a order of eviction against the respondent from the petition scheduled building ?”
The landlord examined himself as PW1 and he deposed to the averments in the petition and he got Ex.A1 to A4 marked on his behalf. Ex.A1 is the certified copy of a certificate issued by the A.P. Pharmacy Council, dated 30-8-1961, Ex.A2 is a registered notice issued by the tenant and Ex.A3 is office copy of the notice issued by the landlord and Ex.A4 is the postal acknowledgment of the tenant. As against the above evidence of the landlord, the tenant examined himself as RW1 and he gave his own version as set up in the counter. He also examined three other witnesses, RWs.2 to 4 and got marked Ex.B1 to B10. RW2 is also a tailor by profession and he supported the evidence of RW1. RW3 is an Assistant Labour Officer and he is examined to prove Ex.B9 and B10 and he is said to be another tenant of the same landlord. RW4 is the father-in-law of RW3 and he is examined to prove that one of the shops
of the same landlord is vacant since about 3 or 4 months prior to his evidence. Ex.B1 is a certificate, showing the building of the landlord; Ex.B2 is a postal receipt; Ex.B3 is a rent receipt, dated 9-9-1978, issued by the landlord for Rs.90/-; Ex.B4 to B8 are certified copies of the connected legal proceedings relied upon by the tenant. The learned Rent Controller considered the above oral and documentary evidence adduced by both sides and held that the land lord is a pharmacist and himself as well as his sons are in the pharmaceutical business and, therefore, their claim of personal requirement for starting their own business in pharmaceutical s is a bona fide one. Hence, the eviction petition has been allowed by rejecting the contentions raised by the tenant
As against the above findings of the Rent Controller, the Appellate Court held :
(i) that the Rent Controller has not scrutinised the evidence of the landlord in its proper perspective in arriving at the conclusion that this claim of personal requirement is a bona fide one ;
(ii) that the landlord has intentionally allowed the northern shop room to fall down by keeping the premises vacant for a period of 13 years, so as to show that he was not in physical possession of any other non-residential building;
(iii) that the landlord filed Ex.A1, pharmacist certificate, to support his case that he wanted to start a medical shop but the validity of that certificate expired on 31-12-1961 and that there is nothing to show that it has been renewed periodically or that it is valid as on the date of the eviction petition;
(iv) that it cannot be believed that the petition would start a wholesale and retail business in medicines by investing Rs.5,00,000/-;
(v) that the shop bearing No.34 of 1941 which was leased out to one Sanka Jagannathaswamy had fallen vacant
during the pendency of these pleadings and the landlord has leased out the same to another tenant instead of starting his own business and that the Rent Controller failed to apply the ratio in the Full Bench decision of this Court, reported in Vidyawathi Bai v. Shankarlal, 1987 (2) ALT 550;
(vi) that the proceedings in OS No.84 of 1984 and the connected record go to show that the landlord got a trench dug by the northern wall of the scheduled shop and caused damage to a portion of that building;
(vii) that if the landlord intended to start-any business in pharmaceuticals, he would not have compromised with the tenant in RCC No.6 of 1978 and he would not have agreed for enhanced rate of rent;
(viii) that he had raised the same plea of bona fide requirement of starting his own business in pharmaceuticals in ROP No. 11 of 1974 (referred as RCC No.7 of 1974 in the deposition of PW1) against one Gampa Gangaraju and Gopalant, in ROP No.44 of 1966 against T. Venkataramana and RCC No.6 of 1978 against the tenant herein and that the above plea is improbable.
(ix) that the ratio in Vidyanwathi Bai’s case is applicable to this case and hence the landlord is not entitled to seek eviction of the tenant.
8. In view of the above findings, the learned appellate Judge allowed the tenant’s appeal and set aside the eviction order and awarded compensatory costs (exemplary costs) of Rs.2,000/- after recording a finding that a false and frivolous petition has been filed by the landlord. It is directed that if the above costs are not deposited within two months from the date of judgment, the landlord shall be liable to pay interest at 6% per annum from the date of filing of the petition till the date of payment.
9. Aggrieved by the above judgment of the learned appellate Judge (Subordinate
Judge, Parvathipuram), the landlord preferred this revision petition.
CMP No. 16789 of 1993 :
10. This is a petition filed by the revision petitioner under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure to receive (1) original receipt No. 100663, dated 30-12-1985 renewing certificate No.1503 from 30-12-1985 to 31-12-1990; (2) the duplicate of renewal of pharmacy No. 1503 renewed form 1-1-1986 to 31-12-1990 and (3) RNo. A No.7868, dated 1-9-1993 for an amount of Rs.50/-renewing the petitioner’s certificate No.1503 for his life as additional evidence and to mark them as Exs.A5 to A7.
11. It is stated in the affidavit of the petitioner that his pharmacy certificate No.1503 was in force on the date of filing the petition on 24-4-1986 and it was renewed from 1-1-1986 to 31-12-1990, but he was not advised to file it in view of the admission of the respondent. It is further stated that the lower appellate authority did not give him any opportunity to satisfy that his certificate was in force as on 24-4-1986 and that Court found that he has not produced any document to show that his pharmacy certificate was renewed and was in force as on the date of the petition and hence he is advised to file the document proving the same in this Court and it may be received as additional evidence. It is further stated that he wrote to the issuing authority and sought for some corrections in the certificate number and thereafter received a duplicate certificate dated 1-9-1993 by post on 4-9-1993 and now he has renewed his certificate for life time by paying R.s.50/- on 1-9-1993. The revision petitioner filed these three documents and sought for marking the same as Exs.A5, A6 an A7 respectively as additional evidence.
12. No counter is filed by the tenant opposing the petition.
13. CRP as well as the above CMP are heard together. It is true that the learned
Subordinate Judge has recorded that no document is produced to show that the pharmacy certificate was renewed and it was in force as on the date of the petition. In that view of the matter, the documents that are now sought to be filed arc relevant and material. “What is sought to be shown now is that not only there was a subsisting pharmacy certificate as on the date of the filing of the petition, but he has become a Pharmacist for life. The circumstances under these three documents are filed in this Court as additional evidence are explained by the revision petitioner in his affidavit. Since there is no opposition to this petition and since the above documents are held to be relevant and material, the petition is ordered. The documents are marked as Exs.A5 to A7 respectively.
14. Having regard to the pleadings, findings of two Courts below and the grounds of Revision, the point that arises for consideration is whether the requirement of the revision petitioner-landlord of the demised premises is bona fide.
15. Sri N. V. Suryanarayana Murthy, learned senior Counsel for the revision petitioner contended that the ground of bona fide requirement is a mixed question of law and fact and hence this Court is entitled to scrutinise the evidence on record and examine the same in order to satisfy that this ground is well founded. He relied on Madanlal Puri v. Sian Dass Berry, . Sri V. V.L.N. Sarma, learned Counsel for respondent on the other hand contended that such a question cannot be considered by this Court and the finding of the lower appellate Court cannot be lightly interfered with. He cited Sri Raja Lakshmi Dyeing Works v. Rangaswamy, .
16. In view of the above contentions it is necessary to consider whether the ground of bona fide requirement for personal occupation is a mixed question of law and fact and if so, whether this Court is entitled to adjudicate upon the above
question in a revision petition under Section 22 of the Act. This question came up for consideration before a Three Judge Bench of the Supreme Court in Madan Lal Pun’s case (supra). In that case the landlord filed eviction petition on two grounds viz., (1) subletting and (2) bona fide requirement for personal occupation. The tenant opposed the petition and the Rent Controller held that both the grounds have not been established. These findings were confirmed in the appeal filed by the landlord. A revision petition was filed in the High Court and it was contended that the findings of both the Tribunals on these questions begin concurrent, cannot be gone into in revision. As far as the question of subletting is concerned, it was not agitated before the High Court. Only the other ground of bona fide requirement was canvassed, but that was also repelled. When the matter was carried to the Supreme Court it is held after referring to unreported Judgement in Civil Appeal No.2150 of 1966, dated 26-9-1969 that a finding on such an issue is not one of fact alone, but is a finding on mixed question of law and fact and that it was open to the High Court when exercising its jurisdiction under Section 39(2) of the Act, to consider the correctness or otherwise of such a finding and that the findings recorded on such an issue by the subordinate Tribunals are not conclusive.
17. As against the above Judgment of a 3 Judge Bench, a contrary view is taken in Sri Raja Lakshmi Dyeing Work’s case (supra) by a 2 Judge Bench. In this case also there was a concurrent finding of two Tribunals below that the landlord did not bona fidely require the premises for his own use. The aforesaid case cited supra (2) was also brought to the notice of the Bench. It is held –
“We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must,
however, be shown that there was a taint of such unreasonableness resulting in a
miscarriage of justice.”
From these two Judgments of the Supreme Court, it is evident that bona fide requirement of the landlord for personal use is a mixed question of law and fact. In Madan Puri’s case (supra), it is categorically held that such a question can be re-examined by the High Court. In the subsequent case also the Supreme Court held that it must be shown that there was a taint of such unreasonableness resulting in miscarriage of Justice. Thus, I am satisfied that the question of bona fide requirement of landlord can be gone into in a revision petition.
18. Sri Suryanarayana Murthy contended that it is not disputed that the revision petitioner is a Pharmacist Certificate holder and that himself along with his two sons are engaged in pharmaceutical business in the shop of his father-in-law and hence they have gained sufficient experience in that field. Taking me through the evidence on record he contended that the northern shop to the demised premises which had fallen vacant earlier had collapsed due to rain and no other shop is in his occupation and hence Full Bench decision of this Court in Vidyawathi Bai v. Shankarlal (supra) is not a bar for seeking eviction of demised premises. He then argued that the revision petitioner wants to start business in a big way by converting the dilapidated northern shop and the demised premises together into one shop and the measurements also show that both these sops will make a good premises. On the other hand Sri Sharma contended that he got the northern shop vacated on this ground and he has been setting up this very ground in the previous eviction petitions, but he never started any business in pharmaceuticals and hence it cannot be a bona fide purpose. He took the support of the findings of the learned Subordinate Judge in this regard.
19. I carefully considered the above contentions. The revision petitioner being
a Pharmacist Certificate holder, which is renewed for life under Ex.A7, and himself along with his sons being engaged in, business in pharmaceuticals are borne out by record. Apart from admissions of the tenant, there is ample evidence to that effect. The question is whether the above ground is a genuine ground or not. In Venkati Penchaliah v. Md. Mimiruddin, 1980 (1) An.WR 164, this Court laid several parameters to examine whether bona fide requirement of premises by landlord is a genuine one or not, it is held by a learned single Judge of this Court :
“A mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of commencing a new business is not enough and decisive. The truth of the assertion and its bona fide character must be established to the satisfaction of the Court. The bona fide requirement need not be of absolute necessity. It is enough if the requirement is reasonable. There is no yardstick for measuring the genuineness of the plea of bona fide requirement. Each case necessarily depends upon its own facts. What is necessary for the Court to determine is whether the landlord genuinely need the premises for commencing a new business and whether he makes the demand honestly and in good faith. In other words, the landlord should not be actuated by any oblique motive of realising some other extraneous purpose. The Court must, therefore, be necessarily satisfied in the first instance as to the absence of any oblique motive or mala fides on the part of the landlord before it is satisfied as to the positive existence of bona fide requirement of the premises by the landlord. The claim of bona fides asserted by the landlord can be demolished by the tenant by proving some positive facts like letting out of some other premises in the occupation of the landlord subsequently or pressing the tenant for enhancement of the rent for the premises in question.”
Sri Sarma also relied on the Judgments in D. Devajui v. K. Sudarashana Rao, 1994 Supp (1) SCC 728, and Vanakqyala Veerraghavnlti v. M/s. Godavari Mettal Rolling Mills contractors Firm, 1995 (2) APLJ 60 (HC). I have, therefore, bestowed my attention to see whether there is any oblique motive on the part of the revision petitioner in seeking eviction of the tenant. The measurements of the both the demised premises and its northern shop are given as 20′ in width and 35′ in length. Evidently, a single shop, be it northern shop or the demised premises, appears to be too small for starting business in a big way. It is seen from the evidence that the revision petitioner has been consistent in saving that he wants to start business in both these shops together. Moreover, there docs not appear to be any dispute regarding his capacity to start such a business. His father-in-law is already having business in pharmaceuticals and he is said to be having 8 shops in all. Therefore, he appears to be having sufficient means to start the above business. These are the plus factors in his favour.
20. I also examined minus factors. One criticism is that he got the northern shop vacated much earlier, but he never started pharmaceuticals business in that shop. It is true that he did not start such a business and his explanation is that it is too small for such a business and hence he wanted to wait for the demised premises being vacated and then take up business in both these shops. That appears to be a plausible explanation from the landlord. Another criticism is that he filed an eviction petition against the tenant herein in 1973 on the same ground and when the same was contested, he could not substantiate that ground and ultimately he entered into a compromise and allowed the tenant to continue in the same premises on higher rent. It is, therefore, argued by Sri Sharma that the landlord is interested in higher rents. Thus, he emphasized that this ground of starting pharmaceutical business is repeatedly set up by the landlord not only in the previous eviction petition against the
tenant herein, but also against the tenant in the northern shop and this is the third eviction petition filed on that ground,
21. It is noteworthy that the landlord and tenant entered into a compromise in the previous eviction petition viz., R.C.C. No.6/1978. The tenant agreed to pay higher rent and continued the tenancy. It is in the evidence of PW1 that he fell sick and therefore, he was not in a position to fight the litigation and hence he gave up the fight and entered into a compromise. In the above circumstances, there is no reason for holding that there was no bona fide requirement merely because the parties entered into a compromise. On the contrary, the fact that the landlord has been urging that he wants to start business in pharmaceuticals time and again would only strengthen his case. In fact he succeeded in the case of northern shop. I, therefore, do not see any merit in the above criticism.
22. Reading the evidence of RWs.2 and 3 it is argued by Sri Sharma that another shop fell vacant during the pendency of the proceedings, but the landlord chose to let out that shop to some other person. It is noteworthy that there is no plea to the above effect and in the absence of plea, any amount of evidence cannot be looked into. Merely because some of the witnesses have deposed so, it cannot be taken for granted that another shop was vacated during the pendency of this proceedings. It may be seen that such a version was not suggested to PW1 and no opportunity is given to him to offer his own explanation to the above version.
23. Having answered the criticism levelled by the learned Counsel for the tenant, I have earnestly considered whether there is any oblique motive on the part of the landlord to seek eviction of the tenant. Since that is one of the tests to be satisfied as per the Judgment cited supra (4) when there are 8 shops for the landlord, he has chosen to seek eviction of the tenant alone, the reason appears to be that it is adjoining a shop which is already vacated and the
intention is to have a decent shop with good measurements so that a Medical Hall may be established. To my mind, there does not appear to be any oblique motive for the landlord to file this eviction petition. In fact no such oblique motive is suggested to him. In Mathilal v. Radha Lal, , it is held –
“Mere assertion on the part of the landlord that he requires the non-residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one. The word ‘required’ signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show, – the burden being upon him -that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business”.
Applying the above ratio, it may be seen that the landlord is having three unemployed sons and that himself as well as his sons are said to be well versed in the business in pharmaceuticals. It is for this reason that he desires to set up his own business and start a Medical Hall in the twin shop i.e., northern shop and demised shop and therefore, he fulfils the objective test and I have no hesitation in my mind that be genuinely requires the premises for starting his own business.
24. There is one more aspect which has been highlighted by Sri Satyanarayana Murthy and it is that the learned Subordinate Judge has used intemperate language to criticise the findings of the lower Court or in appreciating the evidence on record. Placing reliance upon the Judgment of Supreme Court in Ishwari Prasad Misra v. Mohammad Isa, , he pointed out that such attitude should be deprecated.
In the above Judgment it is held –
“Judicial experience shows that in adjudicating upon the rival claims brought before the Courts it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is, no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reaches. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases Court of appeal reverse conclusions of fact recorded by the trial Court on its appreciation of oral evidence.
The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong, intemperate, or extravagant criticism, against contrary view, which are often founded on a sense of infallibility should always be avoided. The use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of judicial poise and balance. No doubt, if it is shown that the decision of the trial Court in a given case is a result of a corrupt motive, the High Court must condemn it and must take due further steps
in the matter. But the use of strong language and imputation of corrupt motives should not be made light heartedly because the Judge against whom the imputations are made has no remedy in law to vindicate his position”.
It is further held :
“What has been said above about the need to avoid the sue of extravagant criticism by the appellate Court against the trial Judge needs to be repeated in respect of similar criticism by the appellate Court against the witnesses examined in the case.”
A reading of the Judgment under revision would show that the learned Subordinate Judge has used some intemperate and extravagant criticism against landlord and his witnesses and also the lower Court. All that could have been easily avoided by him. I, therefore, disapprove the approach of the learned Subordinate Judge in using such a harsh language in a matter like this.
25. Thus, alt the reasons set out in (i) to (ix) above of the learned Subordinate Judge are answered and hence the finding that the requirement is not a bona fide cannot be sustained. On the contrary, the learned Rent Controller has recorded cogent reasons for the finding that the bona fide requirement has been made out by the landlord.
26. For the above reasons, the CRP is merited and it is accordingly allowed setting aside the Judgment under revision and restoring the eviction order in RCC No.1 of 1986 of the Principal District Munsif, Parvathipuram, dated 7-10-1991. The tenant is permitted to vacate the premises within two months from today, failing which the landlord will be entitled to evict him in due process of law. There will be no order as to costs.