JUDGMENT
S. Dasaradha Rama Reddy, J.
1. This is a revision petition filed by the landlord Under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the ‘Act’). The petitioners who are brothers filed eviction petition R.C.No. 307/80 Under Section 10(3)(a) of the Act against the respondents who are father and daughter seeking eviction in respect of the ground floor of the premises bearing No. 7-2-612, Rashtrapathi Road, Secunderabad. The tenants are running Pathalogical laboratory in the premises on monthly rent of Rs. 300/-. The ground of eviction is that the 2nd petitioner intends to start business of his own in hardware, paint and engineering goods which is the family business and that he has no Ors. premises of his own except this premises. The tenants have filed counter that the need is not bona fide, that the 2nd petitioner has no proper training or where-withal for commencing the business and that the eviction petition is filed only to pressurise the tenants to enhance the rent. The Rent Controller allowed the petition while the Addl. Chief Judge dismissed the petition holding that it was filed with the oblique motive of getting higher rent, that the locality is not suitable for hard ware business and that the petitioner has not established his financial capacity to start the business. Against this order, the landlords preferred this revision contending that the order of the appellate Court reversing the Rent Controller’s order is illegal.
2. Pending the C.R.P., the tenants filed C.M.P.No. 16849/95 on 15-11-1995 alleging that after the judgment of the appellate Court, the 1st to 4th floors of the building bearing the same Municipal number as that of ground floor fell vacant and the petitioner instead of occupying one of the floors, let out the same to some Ors. and hence he cannot ask for eviction in view of the bar in Sec.1O(3)(a)(iii) of the Act. It is further alleged that the landlords have admitted in RC 54/95 that the 1st to 4th floors are non-residential premises. The tenants request this Court to take these subsequent events into consideration and dismiss the C.R.P. To this, the landlords filed counter admitting that the 1st the 4th floors fell vacant and were let out subsequently, but they are not convenient for the purpose of hardware business and engineering goods. The landlord filed C.M.P. 1634/96 for receiving certain municipal tax receipts in support of his plea that 1st to 4th floors were given separate numbers and were assessed to tax separately. He states in his affidavit that while the ground floor is non-residential, the remaining 1st to 4th floors were intended for residential purpose. To this, the tenant has filed reply on 5-2-1996 contending mat additional documents cannot be filed in the CRP filed Under Section 22 of the Act and denied the allegation that the upper floors are intended for residential purpose. It is further averred that there is no kitchen on any of the floors, that the landlord has not filed any material to establish the true character of the upper floors and that in any event the 1st and 2nd floors are let out for non-residential purpose. In view of the subsequent developments C.M.Ps. 16849 of 1995 and 1634 of 1996 are Ordered.
3. The following questions fall for consideration:
(1) Whether the finding of the appellate Court mat the petitioner’s need is not bona fide is impropriety or illegality?
(2) Whether the 1st to 4th floors of the premises are residential premises or non-residential premises; and
(3) If floors 1 to 4 are non-residential, whether the petitioner is entitled to obtain eviction Order in view of the judgment of the Supreme Court in D. Dvaji v. K. Sudarashana Rao, 1994 (1) APLJ 5 (SC)?”
Question No: (1)
4. The second petitioner giving evidence as P.W.1 stated that the has no Ors. residential premises of his own except this premises, that he wants to start business in hardware, paints and engineering goods which is family business, and that he is having financial capacity to run the shop. Respondent No. 2 who is the daughter of 1st respondent, gave evidence as R.W.1 that there are no hardware and paint shops in the vicinity and that the petitioner has no financial capacity to start the business which requires about Rs. 1 lakh. But in cross examination, she admits that there are hardware and paint shops in the same line and shops in engineering goods in the opposite line, but a furlong away. She also admits that shops in hardware, paints, engineering goods are located in ground floor. Regarding the financial capacity, she has vaguely stated mat the petitioner does not have sufficient financial capacity. The learned Chief Judge observed that there is no need for the premises by the second petitioner as he is already working in Tyres and Tubes shop at Tilak Road along with his brother and that no evidence is produced to prove that he is having financial position to establish such a business. He held that the 2nd petitioner is doing business on commission basis and getting Rs. 2000/- per month besides getting the rent (Rs. 300/-) of the suit premises and that he did not file any evidence to show as to how he can invest Rs. 1 lakh for starting the business, and that the petition, was only filed with oblique motive of getting higher rent. The learned appellate Judge also held that the locality is not suitable for hardware business. The learned counsel for the petitioner Mr. C. Poornaiah submits that the reasons given by the learned Judge are untenable. The finding mat there are no hardware shops in the vicinity is against the evidence of the 2nd respondent who admits in cross-examination that there are hardware shops. Regarding the need to do business, it is not for the tenant to say that mere is no necessity for the landlord to do business on the ground that he is already having a business and getting some remuneration. It is admitted fact that the 2nd petitioner is already doing business and that the family business is hardware, paints and engineering goods. But, merely because second petitioner was doing some Ors. business and getting some income, it does not mean that he need not start another business. Regarding the financial capacity, merely because, he had no balance in the bank, it cannot be inferred that the petitioner cannot start business. He can as well take loan from bank or borrow from some Ors. private sources and start the business. There is no evidence that he is not credit-worthy to the extent of Rs. 1 lakh.
5. Regarding the allegation that the real motive for filing the petition was enhancement of rent, the learned appellate Judge solely relied on the deposition of the2nd respondent that the petitioners have demanded enhancement of rent of Rs. 600/-. Second petitioner deposing as P.W.1 has categorically denied the1. 1994(1)APLJ5(SC). allegation. Further, the stand of the respondents is not consistent. In the reply to the legal notice Ex. P-2 and in the counter, the respondents have not stated that the petitioners have demanded rent of Rs. 600/- and that the tenant has agreed to the enhancement of rent to Rs. 600/-from April, 1980. It is only for the first time in the deposition that the 2nd respondent has stated this. It is also significant to note that R.W.2 who was said to have been present in December, 1979 when P.W.1 agreed to accept the enhanced rent of Rs. 600/- has not stated that the rent was agreed to be enhanced to Rs. 600/-. If the landlord has demanded enhanced rent of Rs. 600/- and the tenant has agreed to the enhancement with effect from April, 1980, as admitted by R.W.1 herself, the question of landlord filing eviction petition on 15-9-1980 with the oblique motive of obtaining enhanced rent does not arise at all. Thus, the learned appellate Judge is not correct in reversing the Order of the Rent Controller and holding that the eviction petition was filed with oblique motive of obtaining enhanced rent. Mr. Ramakrishna relying on the decision of the Supreme Court in Lachhman Dass v. Santokh Singh, 1995 (4) SCC 201 = 1995 (3) ALT 53 (D.N.) contended that this Court cannot interfere with the finding of the fact recorded by the appellate Court. This contention of Mr. Ramakrishna has no substance. In the case relied on, the concurrent finding of two Courts was disturbed by the High Court and in that context the Supreme Court held that the High Court while acting Under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act which is analogous to Section 22 of the Act, ought not to have interfered with the finding of fact unless it came to the conclusion that it is wholly perverse and manifestly appears to be unjust. But in the present case, the appellate Court has reversed the Order of the Rent Controller and the appellate Order suffers from material impropriety and illegality. In fact, the Supreme Court has held in that case that the powers of the High Court Under Section 15 (6) of the Haryana Rent Control Act which is analogous to Section 22 of the Act are wider than the powers Under Section 115 CPC. In view of the above, the conclusion of the appellate Court that the petitioners’ need for the premises is not bona fide is manifestly unjust and the learned Rent Controller is correct in holding to the contrary.
Question No: 2
6. Now coming to the subsequent development, Mr. C. Ramakrishna, learned counsel for the respondents submits mat during the pendency of the revision, the premises in 1st to 4th floors which are non-residential fell vacant and as the petitioner have let out them, the eviction petition has to be dismissed in view of Section 10(3)(a)(iii) of the Act as interpreted by the Supreme Court in D. Dvaji’s case (1st supra). The tenant states in the affidavit that in R.C.54/95 on the file of the Addl. Rent Controller, Secunderabad filed by the 2nd petitioner on 6-3-1995 for fixing fair rent for the very same premises, he gave evidence on 27-10-1995, and 7-11-1995 stating that Rajasekhar and Laxman Rao are in occupation of 1st and 2nd floors respectively while Sudhir Pandit is in occupation of the 3rd and 4th floors for the last 3 years and that the entire premises is non-residential premises. He filed copy of the deposition of the petitioner No. 2 in R.C. 54/95, where he stated that the entire building consisting of ground floor and four upper floors was given one number viz., 7-2-612 and that the tenants were paying rents of Rs. 1200/- Rs. 800/-Rs. 600/-, and Rs. 500/- respectively for the four floors. He was examined on 27-10-1995,7-11-1995 and 22-11-1995. Mr. C Poornaiah, learned counsel for the petitioners submits that there is nowhere any admission that the 1st to 4th floors are non-residential premises. According to him, petitioner No. 2 stated that the extent of area under occupation of the respondent is same as that occupied by the 1st floor tenant and that the tenants in 1st, 2nd and 3rd floors were running offices carrying on business of film distribution while the tenant in 4th floor carries on business in publicity and advertisement. He also contends that as the tenant raised the point that the Ors. non-residential premises are available to the landlord for possession, it is for him to establish that fact.
7. It may be noticed that this amendment petition to take cognizance to subsequent events as well as counter were filed when the examination of P.W.I in R.C. 54/95 was in progress. That is how the respondents filed copy of incomplete deposition, along with C.M.P. However, complete deposition has been subsequently filed. Mr. C. Poornaiah, learned counsel for the petitioners raised technical objection mat there is no petition under Order 41 Rule 27 to receive the deposition in R.C. No. 54/95 as additional evidence. But this is only a technical plea and I do not agree with it. The copy of deposition is filed as material papers. No doubt he ought to have filed petition to receive this as additional evidence. But I do not propose to reject the evidence on that technical ground. The question is whether the petitioner No. 2 has admitted in his deposition that 1st to 4th floors are non-residential premises. A perusal of the deposition shows that the petitioner No. 2 has nowhere admitted that the 1st to 4th floors are non-residential premises. What is stated is that the entire building is given one Municipal number though tax was levied floor wise and that the tenants in 1st to 3rd floors are having offices in film distribution business, while the tenant in 4th floor carries on business in advertising and publicity. The petitioner No. 2 filed another affidavit on 31-1-1996 which is described as additional counter affidavit, wherein, he stated that the ground floor portion is non-residential premises while the rest of the floors continued to be residential premises, though used as offices by the tenants, that the 3rd and 4th floors were in fact used for residential purpose by the previous tenants and that it is only the Rent Controller that has the power to change the classification. Along with the affidavit he has filed certain municipal tax receipts to show that the premises in each floor is given a separate number with separate tax demand. But as these tax receipts are of January, 1995, that is, during the pendency of this litigation, they have no probative value. To this additional counter, the respondents filed reply on 5-2-1996 stating that the structural design and the admitted user conclusively establish that all the upper floors are non-residential in character and that there is no kitchen in any one of the floors. It is stated in para-8 that no material is adduced to establish the true character of the upper floors and mat the petitioner No. 2 who has knowledge of the details of these leases has not furnished the particulars and as such inference has to be drawn against him regarding the nature of the premises.
8. Mr. C. Ramakrishna, learned counsel for the tenants has contended that subsequent developments viz., 1st to 4th floors fell vacant during the pendency of this C.R.P. and were let out, have to be taken into consideration while deciding the need of the landlord and cited:
(i) Hasmat Ram v. Raghunath Prasad,
(ii) Pasupuleti Venkateswarlu v. The Motor and General Traders,
(iii) Variety Emporium v. R.M. Mohd. Ibrahim Naine,
(iv) Ramesh Kumar v. Kesho Ram, .
9. There is no dispute about this proposition. Mr. Ramakrishna next contends that as the allegations made by the tenant are not denied, there is no need for the tenant to prove that the premises of the 1st to 4th floors are non-residential. I am afraid that I cannot agree with this contention. There is no admission by the landlord either in R.C.54/95 or in this proceedings mat the 1st to 4th floors are non-residential premises. What was stated in deposition in R.C 54/95 and in the affidavit filed in this C.R.P. on 31-1-1996 was that these floors were used by the tenants as business offices.
10. Non-residential purpose is different from non-residential premises. It may be noticed that though the Act makes separate provisions for residential and non-residential premises in the matter of fixation of fair rent, grounds of eviction etc., it does not define residential or non-residential building. Section 18 of the Act says that no residential building shall be converted into non-residential building except with the permission in writing of the Controller. It may be noticed that there is no converse provision in respect of conversion of non-residential building into residential building. Mr. C. Ramakrishna relied on a decision of the Full Bench of Madras High Court in Dakshina Moorty v. Thulja Bal, , wherein it was held as follows:
“What is at the inception a residential building may well become a non-residential one by force of the terms of a letting, and that any conversion, after the letting of a residential building into a non-residential one may well take place within and only within the limits which the statute prescribes. That if prior to a letting, a building happens to have been of one character it must for ever keep that character irrespective of what the effect of the letting or of the acts of parties subsequent to the letting may be, seems to our minds to be a difficult, if not impossible position having regard to the consideration above set forth”
11. But, a Division Bench of this Court consisting of Justice Amareswari and Justice Syed Shah Mohd. Quadri in Pendyala Venkatakrishna Rao v. Dr. B. Seetharam, 1989 (2) APLJ 261, 1989 (3) ALT 284, explained that this decision must be treated is impliedly overruled by the Supreme Court in Busching Schmitz v. Menghani, , and that the observations of the Full Bench have been correctly explained by the Division Bench of this Court in Pokuru Vardarajan v. State of A.P., . In the Supreme Court decision (9 supra) it was held that the purpose of lease is not decisive of character of accommodation and whatever is suitable or adaptable for residential uses even by making changes can be designated as residential premises. The Division Bench of this Court in Pendyala Venkata Krishna Rao’s case (8 supra) held that residential building continues to be so even though it was let out for non-residential purpose such as nursing home etc., provided it is not converted into non-residential building Under Section 18 of the Act. To the same effect is the decision of Anr. Division Bench in Varadarajan case (10 supra) where residential premises was let out for office. Thus, residential building can be used either by the landlord or tenant not only for residential purpose but also for such non-residential purpose as the structure of the building admits of, for example, nursing home, office etc., while non-residential premises can be used only for non-residential purpose. Thus, merely because, the 1st to 4th floors were given for office purpose, it does not automatically follow that they are non-residential premises.
12. Mr. C. Ramakrishna contended that the decision in Pendyala Venkata Krishna Rao case (8 supra) is distinguishable since it relates to residential building let out for non-residential purpose. This contention has no merit. As per this decision, in the absence of any evidence to show the alteration of the structure of the building and in the absence of any conversion Under Section 18 of the Act, the residential premises continues to be residential premises. The contention of Mr. Ramakrishna proceeds on the assumption that the premises was non-residential premises originally which is itself indispute.
13. Mr. Ramakrishna next contended that the following factors establish that the whole premises is non-residential;
(i) Notice dated 18-4-1980 and para-1 of the eviction petition.
(ii) Deposition of P.W.1
(iii) Deposition of P.W.2
(iv) Absence of denial regarding the nature of 1st to 4th floors in para-7 of the counter affidavit filed by the landlord in C.M.P. 16849/95.
(i) In the notice dated 18-4-1980 the petitioner stated as follows:
“You are a tenant of my clients in the ground floor of premises bearing No.7-2-612, ‘Emajee Building’ Rashtrapathi Road, Secunderabad on a monthly rent of Rs. 300/-”
I fail to see how this can be interpreted as description of the four floors as non-residential premises. There is no reference to the upper floors at all,. Similarly in the eviction petition, in para-1, it is stated thus:
“Petitioners are the owners and landlords of the premises bearing No. 7-2-612 (Old No. 2538) situate at Rashtrapathi Road, Secunderabad. The respondents are the tenants in the said premises on a monthly rent of Rs. 300/- which is exclusive of water and electricity consumption charges. Petitioners submit that the said premises is non-residential”
Here what is described as non-residential is the ground floor of premises bearing Non 7-2-612 fetching a monthly rent of Rs. 300/-. The expression ‘the said premises’ in the last sentence in the extracted portion evidently refers to the premises which was let out namely ground floor which is referred to in the previous sentence.
(ii) Deposition of P.W.1. This is what he stated as P.W.1
“The premises 7-2-612 belong to me. Earlier it was joint family property. Now it fell to my share. The respondents are the tenants to my share. The respondents are the tenants of the said premises on a rent of Rs. 300/-exclusive of water and electricity charges. It is a non-residential premises”
Obviously what is referred to as non-residential premises is the ground floor fetching rent of Rs. 300/- and not the entire building.
(iii) Deposition of P.W.2
Again reliance was made on the deposition of P.W.2 who stated that “he got petition schedule malgi in Rashtrapathi Road, Secunderabad& “. Reference to schedule malgi is clear and what is referred to is only the premises, which is subject matter of the eviction petition.
(iv) Counter affidavit of petitioners in C.M.P. 16849/95:
Regarding the last factor viz., the counter affidavit of the landlord in C.M.P. 16849/95, no doubt, there was no denial regarding the character of 1st to 4th floors. But in the affidavit filed on 31-1-1996, the landlord has stated that 1st to 4th floors are residential premises, and that they continued to be residential notwithstanding the user by the tenants for office purpose, and that they are not converted into non-residential premises Under Section 18 of the Act.
Thus, none of the above factors relied on by the respondents establishes that the 1st to 4th floors are non-residential premises.
14. It is next contended by Mr. C. Ramakrishna that as the landlord has not given full particulars regarding all the floors, adverse inference has to be drawn against him. I cannot agree. It must be noted that R.C. 54/95 was for fixing fair rent for the subject premises and as the nature of the accommodation on 1st to 4th floors was not directly in issue and hence the question of drawing adverse inference in these proceedings does not arise. The burden is on the tenants to prove that the 1st to 4th floors were always and are now also non-residential premises as they are raising this plea for the first time now. Mr. Ramakrishna contends that if affidavit evidence is not enough, oral evidence may be taken either by this Court or the matter may be remitted to the lower Court and relied on Ramesh Kumar’s case (6 supra). This plea has no merit. The adducing of oral evidence or affidavit evidence referred to by the Supreme Court in Ramesh Kumar’s case (6 supra) is only regarding any subsequent event which is denied by the Ors. side. Here the 1st to 4th floors falling vacant and being let out to Ors. are subsequent events admitted by the landlord. The enquiry cannot be extended further for investigation of nature of the premises in 1st to 4th floors to enable the tenant to raise new ground. In this connection, the latest decision of the Supreme Court in Laxmi alias Anandi v. C. Setharama Nargarkar, , is apposite. In that case, the Supreme Court held that the subsequent plea 11. . requiring investigation of fact cannot be entertained in revision petition. That was a case under Karnataka Rent Control Act. The original plea of the landlady there was that she required the premises for her own residence. The landlady died during the pendency of the proceedings and the son has taken the plea that he wanted the suit premises for his own occupation. The District Court and the High Court upheld the contention of the tenant that this subsequent plea requires investigation of facts and could not be entertained in revision petition. The Supreme Court affirmed the view of the High Court and observed as follows:
“The facts necessary to make out a case relating to the need to the landlord himself to occupy the suit premises are altogether different from those relating to the need of the landlord’s mother to occupy the suit premises. The facts to establish that the landlord bonafide required the suit premises for his own occupation could not have been ascertained at the stage of the revision petition.”
15. As per this decision, the respondent cannot be permitted to adduce evidence at this stage regarding the nature of the upper floors. Further it is not in dispute that 1st to 4th floors were let out in 1992. The respondents who are tenants in the ground floor and who are very well aware of the change of the tenants could have filed this petition immediately with all supporting evidence to show the nature of the 1st to 4th floors. But for the reasons known to them, respondents have failed to file such petition which has been filed only just on the eve of commencement of the hearing of the C.R.P. The eviction petition is of the year 1980 and we are in 1996 and this request made at this stage for further remand will protract the proceedings.”
16. Thus there is no material to hold that the 1st to 4th floors, are non-residential premises.
Question No: (3):
17. As it is not established that the 1st to 4th floors are non-residential premises, the decision of the Supreme Court in Dvaji’s case (1 supra) does not come in the way of the petitioners claiming eviction.”
18. To sum up, as the 2nd petitioner has no Ors. non-residential premises, he is entitled to claim eviction of the respondents from the ground floor non-residential premises bearing No. 7-2-612, ‘Emajee Building’ Rashtrapathi Road, Secunderabad to start business in hardware, paints and engineering goods which is incidentally his family business. There is no material to hold that the eviction petition is filed only with the oblique motive of obtaining higher rent. The user by the tenant is not the test to determine the nature of the premises and the residential building continues to be so even if it is used by the tenant for non-residential purpose like office, nursing home, etc., so long as the structure is not altered and there is no conversion into non-residential building Under Sec. 18 of the Act. From the evidence on record, it cannot be said that the 1st to 4th floors are non-residential premises. Hence, though they fell vacant in 1992 and were let out by the landlord which are the subsequent events that took place during pendency of C.R.P., the landlord is not barred Under Section 10(3)(a)(iii) of the Act from claiming eviction. Further, though the subsequent event has to be taken into consideration by the Rent Controller or the appellate Court or revision Court and evidence can be taken in that regard, it does not follow that Ors. facts necessary to establish the new claim either by the landlord or the tenant can be permitted to be investigated for the first time by affidavits or by taking oral evidence.
19. For the above reasons, the C.R.P. is allowed. No costs. The eviction petition is Ordered. The respondents are given Three Months time from to-day to vacate the premises.