ORDER
1. This revision is filed under S. 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act hereinafter referred to as ‘the Act’ by the landlords against the judgment of the Addl. Chief Judge, City Small Causes Court, Hyderabad in R.A. No- 7/1987 reversing the order of the Rent Controller in R.C. No. 506/ 1979.
2. The facts giving rise to the filing of this revision are in brief as follows: The petition schedule premises bearing D. No.9-1-47 situated at Sarojinidevi Road, Secunderabad originally belonged to one Rajamma Widow of Balaiah, The petitioners are her grandsons. She had leased out the property to the second respondent herein on monthly rental basis. It is a non-residential building. The second respondent had sub-let the premises to the first respondent who is carrying on business in the said premises. Rajamma executed a settlement deed in favour of the petitioners in respect of the suit premises on 31-3-1972. The petitioners filed a petition under S. 10(3)(a)(iii)(b) of the Act for eviction of the respondent contending that they require the premises for the business which they propose to commence.
3. The respondent contested the matter stating that the petitioners do not require the premises for carrying on business and that they have filed the petition for eviction as the respondent refused to enhance the rent as demanded by them. Originally the petition was filed against the first respondent alone but later the petitioners got the petition amended by impleading the second respondent contending that the premises was leased out to the second respondent by the landlord and that the first respondent is the sub-tenant of the second respondent. The petitioners subsequent to the filing of the petition had taken a malgi situated in Naredpalli on rent and have started business in Generals goods and Bakery and got this incorporated in the petition by way of amendment.
4. During enquiry the first petitioner
examined himself as P.W. 1 and apart from
that they examined the lowner of the malgi
which the petitioners have taken on rent for
c’arrying on business during pendency of this
eviction petition as P.W. 2. On the other hand
the proprietorix of first respondent was
examined as P.W. 1. In addition to this oral
evidence some documents were also marked
on either side.
5. On a consideration of the oral and documentary evidence, the learned Rent Controller found that the petitioners bona fide required the premises for their, own business and consequently allowed the petition and ordered eviction of the respondents from the suit premises. Aggrieved by that order, the respondents filed an appeal before the AddS. Chief Judge, City Small Cause Court, Hyderabad. The said appeal was allowed and the order of the Rent Controller directing eviction of the respondents was set aside on the ground that the petitioners have failed to establish the bona fide requirement of the premises as on the date of filing the petition and that they have also failed to establish that they are carrying on business in a rented premises. It was also observed that the petitioners have not specified in their petition the particulars of business which they intended to carry on and that therefore they are not entitled for eviction. Aggrieved by the order of the Appellate Authority, the landlords have filed this revision.
6. In this revision it was contended by the counsel for the petitioners that the appellate authority erred in coming to the conclusion that the petitioners have not established their bona fide requirement of the premises. It was further contended that the failure to give particulars of business in the application for eviction does not render the petition liable for dismissal. On the other hand the respondents contend that the petition for eviction is not maintainable inasmuch as one of the petitioners is a minor and he is not represented by a next friend. It was further contended that in an application for eviction on the ground of personal requirement, the petitioners should establish that there was requirement of the
premises and that it continued to exist till the disposal of the petition. These are the points that arises for consideration in this revision.
7. Before proceeding to discuss on the merits of this case, it would be appropriate the extract the relevant provisions of the Rent Control Act under which the petition for eviction is filed :
Secction 10(3)(a)(iii)(b) reads as follows :
(a) “A landlord may subject to the provisions’ of clause (d), apply to the Controller for an Order directing the tenant to put the landlord in possession of the building
(i) …..
(ii) …..
(iii) In case it is any other non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise-
a) for the purpose of a business which he is carrying on, on the date of the application or
b) for the purpose of a business which in the opinion of the Rent Controller, the landlord bona fide proposes to commence;
Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered:
Provided further that where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this clause-
1)…..
ii) In case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.
So from a reading of the above provisions it is clear that what is necessary is the satisfaction of the Rent Controller about the requirement of the premises by the landlord for starting business.
8. One of the objections raised by the
respondent is that one of the petitioners was a
minor at the time when the application was
filed and that therefore the application itself is
not maintainable. It is true that the age of the,
second petitioner was shown as 17 years in the
petition filed for eviction and he has not
represented by any next friend. The petition
was filed in the year 1979. This objection was
not raised earlier. It was, therefore, contended
that it is not open for the respondents to raise
this objection at this stage particularly when
the second petitioner has become a major. In
support of this contention he relied on deci
sions , Narpat
Raj v. Babulal and in ,
Keshav De. v. Jagadish Prasad in , wherein it was held as follows (at page
86) :
“The irregularity in instituting the suit does not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant makes an application under O. 32, Rule 2, C.P.C. If such an application is not made in between the time of the institution of the suit and the passing of the decree thereon, the defendant would be precluded from raising the said point thereafter and will not be permitted to assert that the decree passed in such a suit is in any way a bad decree. The decree in such circumstances does not become a nullity because the Court proceeds on the basis that it was not a suit by the minor and the suit was properly instituted. The decision of the question as to whether at the time of the passing of the decree the plaintiff was a minor would be quite immaterial at a stage when such minor had already attained majority. Similarly, when the plaintiff at the time of the institution of the suit was a minor and duly sued by a next friend and subsequently the next friend is discharged on the statement of the minor that he has attained majority and ultimately it transpires that he actually did not attain majority at the date of the the discharge of the next friend, any decree passed in such a suit in favour of the minor under such circumstances will not make the decree a nullity on the same principle. The defect in procedure, if any, would have been waived by the defendant.”
In view of the above decision, it is not open to the petitioner to question the same at this stage when the second petitioner has become a major.
9. The appellate authority relying on a decision reported in AIR 1985 between M. Laxminarayana v. M. Surya Kantam, stated that the respondents are not liable for eviction inasmuch as the petitioners have not mentioned the particulars of business which the petitioners intend to start in their application for eviction. It is true that the petitioners were studying in college at the time when they made the application and have not mentioned the particulars of the business which they intend to start in their application. In the above decision it was held that when no particulars of the business were given and no evidence was let in as to the nature of business to be set up, the tenant is not liable to be evicted. Subsequently, a Division Bench of this Court has held that an eviction petition cannot be dismissed on the sole ground that particulars and nature of business proposed to be commenced are not stated in the eviction petition vide B. Eswaraima v. A. Appu Rao. In the instant case it is true that the petitioners have not given the particulars of the business which they intend to start in the petition filed for eviction. But after filing the petition they got the petition amended stating that they have taken some premises on rent at Maredpalli and have started business in Generra! Goods and Bakery and they have also adduced evidence to that effect. So, under the circumstances, I find that there is no substance in the contention of the respondents that the petitioners have not mentioned the particulars of business in their application and that it should therefore be dismissed. Hence, this objection by the respondents is overruled.
10. It was contended on behalf of the respondents that the petitioners should establish the existence of bona fide requirement of the landlord not only at the time when the pelition was instituted but they should also prove that it continued to exist till the disposal of the petition.
11. As the petitioners were studying at the time of filing of the petition and as one of them was a minor it was contended that there was no bona fide requirement of the premises at the time when they filed the petition for eviction. It is not necessary that the need for starting business should exist on the date of suit and the plaintiff can file a suit in respect of his requirement which is to be in near future vide Hemraj Nima v. Rajnarayan, 1980 MP RCJ 65.
In another decision reported in 1974 RCR between Padma Rammurthy v. M. Ragha, 1974 RCR (Hyd) 197, it held that, it is true that the need for personal occupation must be present, but it cannot also be lost sight of the fact that disposal of rent cases do take time and, therefore, a petition filed in the year 1969 for requirement of the premises in 1971 on the ground that the landlord would retire and thereafter he wishes to settle down, cannot be dismissed that the need is not present.
12. It is a matter of common knowledge that proceedings for eviction of a tenant cannot be finalised at least within a period of five years if there is contest between the parties. So, if a party who is aware of the nature of the proceedings files an application for eviction on the basis of bona fide requirement which may come into existence in future cannot be punished by refusing to entertain such petition on the ground that the need is not present when he filed the petition. It should be remembered that this petition for eviction was filed in the year 1979 but still the same has not been finally disposed of. After all the petitioners were studying intermediate at the time when the petition was filed. So, it is not a course which could not be given up in the middle in the normal circumstances even if the respondent vacates the premises so as to say that there was no bona fide requirement. Further, it is clear from the evidence of P.Ws. 1 and 2 that the petitioners have taken some other premises situated at Maredpalli on rent from P.W. 2 for commencing business. This is a subsequent event which would go to show that the petitioners bona fide required the premises. In appropriate cases, events subsequent to the filing of eviction
suit can be taken notice of and can be duly considered by the court provided the same is relevant in determining the question of bona fide requirement.
13. In a decision reported between Gulabbai v. Nalin Narsi Vohra, : (1991 AIR SCW 1971), it is observed as follows (at page 1767) :
“Where in an eviction suit on ground of bona fide requirement of landlord for opening office of her husband for his tax consultancy, the lower appellate Court failed to consider at all the fact that a very spacious bungalow comprising of 2000 sq. ft. covered area had already been built by the landlord’s husband, and during the pendency of the appeal before the lower appellate Court, the landlord with the members of her family had been residing there and her husband had started the office of Tax Consultancy in that bungalow and the lower appellate Court did not at all consider whether the first floor of the suit premises as well as the second floor which though claimed to be a shed, could be conveniently utilised for the purpose of the said Tax Consultancy Office…..
In another decision of the Supreme Court in M/s. Variety Emporium v. V. R. M. Mohd. Ibrahim, , it is observed as follows (at page 210) :
“In a suit for eviction on the ground of bona fide requirement of premises by landlord the subsequent events ought to be taken into account for the purpose of finding out whether the landlord still required the premises in possession of the tenant. In appropriate cases, the court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events.
14. In the instant case, the petitioners filed a petition stating that they require the premises for starting business. The application was filed in the year 1979. Subsequently three or four years later the petitioners have taken some premises situated at Maredpalli on rent from P.W. 2 and have started business in the said premises. This subsequent conduct shows that the petitioners bona fide require the premises for their own occupation. So
according to the decisions referred to above the subsequent events should also be taken into consideration. In the instant case, the petitioners have also got the petition amended referring to this fact. So this circumstance has to be borne in mind while determining the bona fide requirement or otherwise of the petitioners. I, therefore, find that the petitioners requirement of the premises was bona fide.
15. It is an undisputed fact that the first respondent is having another shop where she is carrying on business similar to the one which she is carrying on in the petition schedule premises and the petitioners have no other non-residential premises except the petition schedule premises and they bona fide require the premises for their own business. Hence, under the circumstances, I find that the appellate Court had erred in reversing the orders of the learned Rent Controller.
16. In the result the revision is allowed with costs and the respondents are directed to be evicted from the suit premises. The respondents are granted four months’ time for vacating the premises.
17. Petition allowed.
