ORDER
V.V.S. Rao, J.
1. The order dated 8-7-1997, passed by the Court of the Subordinate Judge-cum-appellate authority, Machilipatnam, Krishna District, in C.M.A.No. 5 of 1987, filed by the respondent herein Under Sections 20 of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’), against the order of eviction suffered by her in R.C.C.NO. 45 of 1982, dated 30-4-1997, on the file of the Court of the Rent Controller, Machilipatnam, Krishna District, is assailed in this revision petition. By the impugned order, the appelllate authority reversed the order of eviction and dismissed the Rent Control case, filed by one Smt. Urimi Kamakshamma. Initially, Kamakshamma filed appeal before the Court of the Subordinate Judge, Machilipatnam, Krishna District, and during the pendency of the said appeal, she died. Therefore, her legal representatives; her husband, sons and daughters were brought on record by an order dated 29-11-1990, passed in LA. No. 1313 of 1990. They filed this C.R.P. Under Sections 22 of the Act against the reversing order passed by the appellate authority.
2. The brief facts of the case are as follows: Late Smt. Kamakshamma, wife of the 2nd petitioner herein, succeeded to the property of her father-in-law comprising four separate non-residential buildings bearing Municipal (new) Nos. 11/808, 11/809, 11/811 and 11/812. In 1954 or so, the husband of the respondent herein took building bearing Municipal No. 11/812 (old No. 11/603) on lease for carrying on charcoal business. After the death of her husband, the respondent continued the tenancy, and is admittedly doing joint family business with the help of her son Hari Babu-R.W. 1. The landlady also let out the adjacent shop bearing Municipal No. 11/811 to one K. Purnachandara Rao. In August, 1982, the landlady issued notice-Ex. A-1 to the respondent calling upon to vacate the premises on the grounds that the tenant had sublet the premises to Hari Babu and that she bona fide required the premises for commencing wholesale and retail business in kirana items by his educated unemployed sons namely Urimi Lakshmi Suryanarayana-(P.W. 2), 8th petitioner herein and Urimi Taraka Lakshmi Venkata Lingeswara Rao, 5th petitioner herein. The landlady also issued evictiion notice-Ex. A-3 to Purnachandara Rao, to immediately vacate the premises bearing Municipal No. 11/811.
3. As the respondent did not vacate the premises bearing Municipal No. 11/812, the landlady filed Rent Control case Under Sections 10(2)(ii)(a) and 10(3)(a)(iii) of the Act alleging that the respondent sublet the premises to Hari Babu-R.W.1, that she bona fide required the premises for commencing business for her third and sixth sons, and that she required the premises to convert the tiled roof into one with RCC. The respondent opposed the eviction petition contending that the landlady is not entitiled to seek eviction on the ground of bona fide requirement. The respondent denied the allegation that she let out the premises stating that Hari Babu is her son and that he was brought into business to help her as she became old. The charcoal concern being joint family business, bringing R.W.1 to help her, does not amount to subletting. The landlady sold away the other two business premises bearing Municipal Nos. 11/808 and 11/809, besides getting back possession of premises bearing Municipal No. 11/811, and therefore, she is barred from seeking eviction under the Act.
4. The landlady examined her husband, 2nd petitioner herein as P.W.1, and her 6th son as P.W.2, besides marking Exs. A-1 to A-6. The tenant examined her son Hari Babu as R.W.1 and another person as R.W.2, and marked Ex. B-1. The learned Rent Controller on appreciation of evidence held that the requirement of the landlady is bona fide, and accordingly ordered eviction of the tenant-respondent by order dated 30-4-1987.
5. The respondent filed an appeal being C.M.A.No. 5 of 1987 Under Sections 20 of the Act. When the matter was pending before the Court of the Subordinate Judge-cum-appellate authority, the landlady filed an application being 1A No. 973 of 1987 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short ‘the Code’), praying to receive additional documentary evidence on her behalf. The same was allowed. Be it noted that by filing the said application, the landlady sought to mark additional documentary evidence like certified copies of sale deeds in respect of certain non-residential properties obtained by the respondent and her two sons during the pendency of the Rent Control Case. Be that as it may, the learned Subordinate Judge, by order dated 3-7-1991 reversed the order of eviction passed by the learned Rent Controller holding that the requirement of landlady is not bona fide. Aggrieved by the same, petitioners 2 to 15, who are the legal representatives of the landlady, filed revision petition being C.R.P.No. 2989 of 1991 Under Sections 22 of the Act. The said C.R.P. was allowed by this Court on 26-11-1996 and the matter was remanded to the appellate authority for disposal afresh. This Court observed that the appellate authority failed to consider the additional documents filed by the landlady, which were adimitted on 30-3-1991 and the failure of the appellate authority to consider the bona fide requirement for starting business by P.W.2. After remand, the Court of the Subordinate Judge marked additional documents of landlady as Exs.A-7 to A-12, considered the matter afresh, including additional documents filed by the landlady during the first round of litigation, and by the impugned order dated 8-7-1997, reversed the order of eviction passed by the learned Rent Controller, and dismissed the Rent Control Case filed by the landlady.
6. Sri S. Venkateswara Rao, the learned counsel for the petitioners submits that the order of the Subordinate Judge is vitiated by illegality, impropriety and irregularity. He submits that the appellate authority allowed the appeal on a new ground that another shop belonging to the landlady fell vacant during the pendency of the Rent Control case, which was occupied by one of her sons, and therefore, she cannot seek eviction of non-residential premises on the ground of bona fide requirement. He also submits that no such plea was ever taken by the tenant, muchless before this Court in C.R.P.No, 2989 of 1991. He also submits that the Subordinate Judge having held that P.W.2, the son of the landlady bona fide requires the premises for commencing business, ought to have taken into consideration additional evidence produced by the landlady to the effect that the tenant purchased non-residential premises during the pendency of the proceedings. He also submits that insofar as the tenant is concerned, subsequent events, which were not pleaded, were taken into consideration, whereas the favourable subsequent events were not considered while appreciating the ground raised by the legal representatives of the landlady. It is his further submission that the impugned order went beyond the order of remand passed by this Court in C.R.P.No. 2989 of 1991, and that the tenants are liable for eviction both on the ground of bona fide requirement as well as on the ground that the tenant has secured alternative building.
7. Sri T.S. Anand, learned counsel for the respondent-tenant submits that the authorities under the Act cannot take into consideration subsequent events in the absence of any efforts on the part of the landlady or her legal representatives to place them on record by a method known to law. Alternatively he submits that the alternative accommodation, allegedly obtained by the respondent, is not a building, but only an open plot, and therefore, the same does not give rise to valid ground for the landlady to seek eviction. The learned counsel would urge that taking possession of another non-residential building by the landlady, would disentitle her to seek eviction of the non-residential premises on the ground of bona fide requirement.
8. The rival contentions would give rise to many questions of fact – Whether the landlady sold away two shops and also acquired possession of another shop; whether Lingeswara Rao, the third son of the landlady started cement business in the said shop; whether acquisition by way of purchase of a non-residential premises by the tenant during the pendency of the proceedings, would desentitle her to continue in possession by reason of Section 10(2)(v) of the Act; and whether the non-residential building acquired by the tenant during the pendency of the proceedings was not intended for starting business by the joint family etc. All these are disputed questions of fact. It is well settled that in exercise of powers of revision Under Sections 22 of the Act, it is beyond the purview of the power of this Court to adjudicate disputed questions of fact by reappreciating the evidence let in before the Rent Controller (See Mudigonda Mouli Sastry v. Bheemunipalli Bikshalu and N. Prabhakar Rao v. J.R. Ramesh Kumar 2001 AIR SCW 4649).
9. In view of the settled legal position, as noticed hereinabove, the only question that arises for consideration is whether the impugned order passed by the Subordinate Judge-cum-appellate authority suffers from any illegality, irregularity and impropriety? The point for consideration requires the examination of three questions namely, (i) Whether the petitioners are barred from seeking eviction of the tenant on the ground of bona fide requirement by reason of other son of the landlady, occupying other non-residential building in the town, which fell vacant after filing the Rent Control case: (ii) Whether the respondent-tenant is liable for eviction on the ground that she secured alternative building/accommodation during the pendency of the proceedings: and (iii) What is the effect of the subsequent events on the rights and liabilities of the parties to the proceedings.
10. The case of the petitioner that the respondent secured alternative accommodation, as evidenced by the additional documents/additional evidence, Exs. A-7 to A-12, was not accepted by the appellate authority on the ground that “no specific pleading is taken in the petition” to that effect. On the other hand, the case of the tenant-respondent that during the pendency of the Rent Control case, the landlady got evicted another tenant, in which one of her sons started cement business, was accepted. Both the events are subsequent to the filing of the Rent Control case. Whether or not the appellate authority was not justified in not taking into consideration the subsequent events, as put forth by the landlady at the stage of Rent Control case as well as her legal representatives at the stage of appeal, are questions which fell within the category of “impropriety” on the part of the Tribunal.
(a) Subsequent events-Principle and Precedents:
These aspects will be considered later. At the outset, it is necessary to notice the law in this regard. It is well settled that a Court or Tribunal has inherent power to take into consideration “events and facts, which have come into existence after initiation of proceedings” so as to consider any change either in fact or in law, which has supervened either before the delivery of judgment by the trial Court or at the stage of appeal.
11. The procedure to be adopted by the Rent Controller under the Act is summary. Section 25 of the Act empowers the Controller to issue summons to witnesses requiring them to attend in person to be evidenced or to produce documents in their custody with the Rent Control proceedings. Section 30(2)(b) of the Act enables the Government to make Rules to carry out the purposes of the Act. In furtherance thereof, the Governer of Andhra Pradesh vide G.O.Ms.No. 547, dated 29-4-1961 promulgated A.P.Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for short ‘the Rules’). Rules 7 and 8 of the Rules deal with the procedure to be adopted by the Rent Controller while dealing with applications filed Under Section 10 of the Act. Though the proceedings under the Act are summary, the Rules prescribe the procedure for enquiry, which is akin to the procedure laid down in the Code. The proceedings being civil in nature, the provisions of the Code insofar as they are not inconsistent and insofar as there is no adequate provision in the Act or the Rules, are nevertheless applicable to the applications and appeals under the Act. Therefore, we may briefly notice the relevant provisions which deal with the power of the civil Court to consider the events and facts which came into existence after the institution of the proceedings which are often referred to as “subsequent events”.
12. Section 153 of the Code deals with the general power of the Court to amend the proceedings. It is to the effect that the Court may at any time amend any defect or error in any proceedings in a suit for the purpose of determining the real question or issues raised by or depending upon such proceedings. Rule 9 of Order VIII of the Code empowers the Court at any time to require the parties to file written statement or additional written statement. Likewise, under Rule 5 of Order XIV of the Code, the Court may amend issues or frame additional issues for determining the matters in controversy or may strike out any issue that appear to the Court as wrongly introduced or framed. These powers are exercisable by the Courts of first instance having regard to the facts and events as well as changes in law that supervened during the pendency of the proceedings. Insofar as the Courts exercising appellate jurisdiction is concerned, Rule 24 of Order XLI of the Code enables the apppellate Court to resettle the issue and finally determine the suit ‘notwithstanding the fact that the ground on which the appellate court desires to proceed was not raised by the party preferring the appeal’. The power of the appellate Court to take into consideration subsequent events is well established and settled. This Rule, adopted by the Supreme Court of United States in Patterson v. State of Alabama (1934) 294 US 600 and Minnesota v. National Tea Co. (1939) 309 US 559, was quoted with approval by the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri AIR 1941 F.C. 5. This principle was held to be law of the land by the Supreme Court in P. Venkateswarlu v. Motor and General Traders . In the said case, which arose under the Act, a three-Judge Bench after referring to the judgments of the Supreme Court of the United States as well as the judgment of the Federal Court, laid down that:
…It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to continue it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed…
13. This principle was reiterated and applied in Hasmat Rai v. Raghunath Prasad , Ramesh Kumar v. Kesho Ram , Vishwasrao Dadasaheb v. Shankarrao D. Kalyankar .
14. In the Rent Control case, the respondent-tenant pleaded a subsequent event that the landlady obtained possession of premises bearing Municipal No. 11/811 from another tenant Purnachandara Rao. It is also admitted that another son of the landlady started cement business in premises bearing Municipal No. 11/811. The appellate authority placed heavy reliance on the subsequent event to deny the relief to the landlady. Be that as it may, when the appeal was pending, the landlady filed an application under Order XLI Rule 27 of the Code seeking to produce additional documentary evidence, and it was allowed on 30-3-1991. In the affidavit accompanying the said application, it was clearly stated that the tenant and her two sons purchased non-residential premises, and thus secured alternative accommodation. Initially, the appellate authority brushed aside the documents and for the said reason, this Court allowed the revision petition being C.R.P.No. 2989 of 1991 and remitted the matter to the appellate authority to consider the additional documents. In that view of the matter, the parties were very much aware of the existence of additional documents, and the reasoning of the appellate authority, is wholly unsustainable. The appellate authority held that in the absence of any specific pleading, the contention of the landlady-petitioners that the tenant secured alternative accommodation cannot be considered. On the one hand, the subsequent event contended by the tenant was accepted, but on the other hand, similar contention of the landlady was not taken into consideration on the ground of absence of pleading to that effect. The approach adopted by the appellate authority suffers from the vice of impropriety.
15. It is well settled that when a party desires to bring subsequent facts to the notice of the Court, it can do so by filing an affidavit or memorandum in the original proceedings or at the stage of appeal. In Ramesh Kumar case (2 supra), the Supreme Court indicated that subsequent events must be permitted to be brought on record by way of affidavits, and the procedure for doing so cannot be burdened with technicalities. The relavant observations from the judgment, read:
When subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 of Order 19, CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence. All these depend upon the factual and situational differences characterizing a particular case and the nature of the plea raised. There can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities.
16. The landlady filed an application being I.A.No. 973 of 1987 specifically contending in the affidavit that the tenant as well as her two sons have been in possession and enjoyment of alternative shop rooms having purchased the same under Exs. A-7 to A-12, and therefore, she made herself liable to be evicted from the premises. In C.R.P.No. 2989 of 1991, filed against the earlier order of the appellate authority, the landlady specifically contended that the appellate authority ought to have considered the additional evidence, which was allowed in I.A.No. 973 of 1987. Therefore, the absence of pleading could not in any way prejudice the tenant. As observed by the apex Court in P. Venkateswarlu v. Motor and General Traders (6 supra), while allowing subsequent events to be brought on record, the Court must ensure that “rules of fairness to both sides are scrupulously obeyed”. Neither before this Court nor before the appellate authority the tenant raised any ground of unfairness by reason of the landlady pleading subsequent events by way of affidavit. This Court, therefore, holds that it was improper for the appellate authority to ignore Exs. A-7 to A-12 on the ground that they were not properly pleaded. The entire approach of the appellate authority suffers from impropriety and requires to be upset.
(b) Effect of tenant securing alternative accommodatiion:
Effect of tenant securing alternative accommodation. It is the contention of the learned counsel for the petitioners that under Ex. A-7 – registered sale deed dated 7-7-1986, the tenant purchased terraced and tiled verandah bearing Municipal No. 11/594 (new No. 11/803) with assessment No. 5032 from M/s. M.V. Sitapathi Rao and M.R.V.N. Srinivasa Chakravarthy, and that R.W.1-Hari Babu and another Venkateshwarlu, who are the sons of the tenant, purchased business permises under Exs. A-8 and A-9, and therefore, whether the business carried on by the tenant in the disputed premises is joint family business or not, is insignificant, and as such, liable to be evicted from the business premises. The fact that tenant and her two sons secured alternative accommodation is not denied. Sri T.S. Anand, learned counsel for the respondent-tenant however, made a feeble submission that what was purchased under Ex. A-7 was an open site, and therefore, it cannot be a valid ground to seek eviction of the tenant.
17. Under Section 10(2)(v) of the Act, a tenant is liable for eviction if he/she has securred alternative building. Whether the alternative accommodation secured is residential or non-residential is immaterial. Be that as it may, as the tenant-respondent secured alternative accommodation she has made herself liable to be evicted from the premises irrespective of the fact whether the landlady proved the other grounds of subletting and bona fide requirement for personal occupation. The appellate authority was bound to consider the subsequent facts and events, which were pleaded by the landlady by filing an interlocutory application. As observed, by doing so, the appellate authority has committed an error, which requires intervention by this Court in revision. On this ground alone, the tenant-respondent is liable to be evicted from the petition schedule premises.
(c) Whether Section 10(3)(a)(iii) of the Acts is a bar:
Section 10 (3)(a)(iii) of the Act reads:
10. Eviction of tenants:- (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13:
(3) (a) A lanlord may subject to the provisions of Clause(d), apply to the Controller for an order directing the tenant to put the landlord in possessiion of the building –
(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 appplication, or
(b) for the purpose of a business which is in the opinion of the 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-
(i) in case he has obtained possession of a residential building, for possession of another non-residential building of his own.
(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.
18. The above provision of law came up for consideration before the Supreme Court as well as this Court in a catena of cases. A plain reading of the provision shows that a landlord may seek eviction of the tenant from a non-residential building for the purpose of carrying on existing business or for the purpose of commencing new business. The right of a landlord to seek eviction of a tenant from a non-residential building, is however, subject to certain restrictions. If a landlord is occupying a non-residential building in the city, or is in occupation of a non-residential building, to the possession of which he is entitled to or when a landlord has already obtained possession of a non-residential building Under Section 10(3)(a)(iii) of the Act, an application for eviction on the ground of bona fide requirement for carrying or commencing business, is not maintainable.
19. I may briefly indicate that Section 10(3)(a)(iii) of the Act is in pari materia with Section 8(3)(a) (ii) of the Mysore House Rent and Accommodation Control Act, 1951. In M. Padmanabha Shetty v. K.P. Papiah Shetty , a Constitution Bench of the apex Court considered the expression “to the possession of which he is entitled to”, and held that the said expression has a more positive content, and is akin to the right of possession which an owner has in respect of the building owned or occupied by him. Thus, if a landlord is in possesssion of a rented premises, Section 10(3)(a)(iii) of the Act is not a bar. Indeed in G. Kaushalya Devi v. Ghanshyamdas , the apex Court while interpreting Section 10(3)(a)(iii) of the Act, followed M. Padmanabha Shetty case, and held that the landlord who is in occupation of a tenanted non-residential premises, is not barred from seeking eviction of a tenant.
20. Nextly, the second proviso to Section 10(3)(a)(iii) of the Act is also not applicable to the facts of this case. The said proviso states that if a landlord has obtained possession of a non-residential building Under Section 10(3)(a)(iii) of the Act, he/she shall not be entitled to apply again under the provision. Therefore, it has to be seen that whether the landlady, who admittedly obtained possession of the premises bearing Municipal No. 11/811 from the other tenant Purnachandara Rao, in which the third son of the landlady started cement business, is barred from seeking eviction of the respondent from the business premises bearing Municipal No. 11/812.
21. Both the learned counsel have taken me through the order passed by the learned Rent Controller as well as the orders passed by the appellate authority. The admitted facts are that the landlady filed eviction petition inter alia on the ground of bona fide requirement for commencing business by her two sons – 5th and 8th petitioners herein. It is also admitted that at the relevant point of time, both were educated and unemployed, and therefore, the landlady gave two eviction notices under Exs. A-1 and A-3 to the respondent and also to one Purnachandara Rao respectively. While the Rent Control case against the respondent was pending, Purnachandara Rao vacated the premises, and another son of the landlady, 5th petitioner herein started cement business therein, and the 8th petitioner, the sixth son of the landlady, did not start any business. The question, therefore, is whether the landlady is entitled to seek eviction of a tenant in spite of the fact that another non-residential premises vacated by another tenant was occupied by one of the sons of the landlady fox the purpose of doing business.
22. The appellate authority as well as the original authority have held that the requirement of the landlady is bona fide. There is no dispute on this. The appellate authority declined to grant relief only on the ground that Section 10(3)(a)(iii) of the Act is a bar to evict the tenant as the landlady obtained possession of another non-residential building. In coming to such conclusion, the appellate authority relied upon the Full Bench judgment of this Court in Smt. Vidyavathi Bai v. Shankerlal 1987 (2) ALT 550 and the judgment of the apex Court in J. Pandu v. R. Narsubai . The appellate authority declined to follow the Division Bench judgment of this Court in Madanlal Srikishnan Malpani v. Ayodhya Devi Aswas 1986 (2) ALT 492 = 1986 (2) APLJ 327 (D.B.), holding that the said case is no longer good law in view of the judgment in Smt. Vidhyavathi Bai (12 supra).
23. A Full Bench of this Court while interpreting the phraseology used in Section 10(3)(a)(iii) of the Act held that a landlord in occupation of a non-residential building is not entitled to seek eviction of a tenant from a non-residential building for carrying on his business or commencing business, and that the suitability, convenience and sufficiency of the non-residential building are relevant (sic. irrelevant) considerations. However, in the subsequent judgments, though Smt. Vidyavathi Bai v. Shankerlal (12 supra) was not specifically referred to, the Supreme Court held that mere owning of non-residential building by a landlord other than the demised premises is not enough to nonsuit the landlord in evicting the tenant. Therefore, the reasoning given by the appellate authority cannot be accepted.
24. In B. Jagadeshwaraiah and Sons v. Pushpa Trading Company 1998 (3) ALT 26 (SC), a three-Judge Bench of the apex Court considered the scope of Section 10(3)(a)(iii) of the Act. While observing that the earlier decision in J. Pandu’s case adopted a narrow and literal construction, and that such narrow and literal consideration would defeat the very purpose of the provision, held that the quality, size and suitability of the building are relevant aspects in considering the bona fide requirement of a landlord seeking eviction of the tenant from any other business premises though he is in possession of a business premises other than the demised premises. It is apposite to quote the following from the said judgment:
It, thus, become evident that there is no conflict as such between the said decision and they have gone on in the context of their own facts and the provisions of law. Even so, the argument of the appellant’s learned counsel carries weight that the intention of the Legislature in D. Devaji’s case has been scuttled by putting an extremely narrow and literal construction on the provision. It has been observed therein as under:
“The landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the Legislature thereby is clear that a landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitiled to under the Act or any other law should not be permitted to recover possession of another non-residential building belonging to him by evicting the tenants therefrom”
The aspects of quality, size and suitability of the building have been totally put out of consideration. We think this would frustrate the purposes of the Act. Here was a claim set up by the landlord that the non-residential premises he owned did not serve the purpose of his need of setting up a textile and cloth business and that the need could only be met in seeking eviction of the tenant from the premises sought. As we view it there is no difficult in D. Devaji’s case standing in the way of the landlord-apellant to have the issue examined from the point of view which would carry out the purposes of the Act. We refrain from mentioning any facts on the basis of which the landlord’s claim is based lest the manner they are recounted cause prejudice to either of the parties.
25. In Madanlal Srikishan Malpani (14 supra) the Division Bench of this Court considered the meaning of the words “for his own occupation” occurring in Section 10(3)(a)(iii) of the Act and held as under:
…The words are not merely “for his occupation”, but “for his own occupation”. Now, what does this mean? No landlord ordinarily lives alone. He lives with his family. He cannot be dissociated from his family. But then, what does a family mean? Who are included within that expression and who are not? This expression is not defined in the Act. Indeed, the Act does not employ this expression at all. Hence there was no occasion for defining it. It is only by a process of interpretation that family is brought it. The Andhra Pradesh General Clauses Act too does not define this expression. In our opinion, it is neither possible not desirale to try to lay down exhaustively who are all included within this expression. The expression has to be understood and construed in a reasonable and realistic manner. It is a question of fact to be decided in each given case/having regard to the facts of the case, in the course of which, social, cultural, religious, financial and even emotional ties have to be taken into account. What has to be decided in each case, having regard to the pleadings and proof, is who can be said to be members of the landlord’s family. Parents, dependants relatives others upon whom the landlord is dependant or those who have been living since quite some time as members of the family of the landlord can be included within this expression. The need of such persons by itself is not relevant. They come in and their need becomes relevant because they are the members of the landlord’s family. Since the landlord cannot be dissociated from his family, his family’s need is treated as his need. It goes without saying that it is for the landlord to plead and prove all the necessary facts. It is for him to show why another person (apart from wife and children) is to be treated as member of his family.
26. The question, however, is whether the landlady is disentitled to seek eviction of the tenant-respondent when one of landlady’s sons started business in another non-residential premises, which fell vacant during the pendency of the Rent Control case. This question no more res integra, Even where one of the sons of the landlady or a close relative is in occupation of a non-residential building either for the purpose of family business or for the purpose of business of son or other relative, Section 10(3)(a)(iii) of the Act, is not a bar to seek eviction of the tenant. In G. Kaushalya Devi (11 supra), the apex Court held:
A contention was also raised that another shop had been purchased by the mother of the respondent with the amount loaned by the respondent and that on that ground it could also be said that the respondent was entitled to possession of that shop as well. This contention has been repelled by the High Court and rightly so. High Court upheld the finding of the Courts below . that the respondent required the suit premises for his personal occupation for conducting the business and that these findings were neither perverse or based on any extraneous irrelevant meterial. High Court was also of the view that the Act did not prohibit eviction of the tenant by the landlord if the members of the family of the landlord possessed other non-residential premises. Even though the respondent and his brothers were conducting business on partnership basis in M/s. Seetha Traders, yet it was no ground to contend that the requirements of respondent is not bona fide.
27. I have already held that the landlady sought eviction of the tenant for the bona fide requirement of commencing business by her two sons namely Lingeswara Rao and Lakshmi Suryanarayana. When a landlord has several dependent sons and seeks to evict the tenant from non-residential premises for commencing business by one of his sons, the mere fact that during the pendency of the Rent Control proceedings, one of the sons started business in a non-residential premises which fell vacant upon the vacation of the premises by another tenant, in my considered opinion, does not act as a bar to evict the tenant Under Section 10(3)(a)(iii) of the Act.
28. Lastly, I must observe that the learned appellate authority misdirected himself in not addressing the question correctly. As per second proviso to Section 10(3)(a)(iii) of the Act, if a landlord obtained possession of a building under the same clause, that alone will act as a bar from seeking possession of non-residential building. Admittedly, another tenant of the landlady, Purnachandara Rao handed over vacant possession of the premises bearing Municipal No. 11/811 after receiving the eviction notice and after filing RCC No. 42 of 1982 against the respondent. The landlady did not obtain possession of the vacant premises from Purnachandara Rao Under Section 10(3)(a)(iii) of the Act. It is well settled that when a Tribunal addresses the wrong question, it amounts to misdirection in law, and is liable to be corrected by the revisional authority.
29. In the result, the CRP is allowed, and the order dated 8-7-1997 passed by the learned Subordinate Judge, Machilipatnam, Krishna District, in CMA No. 5 of 1987, is reversed and the order dated 30-4-1987, passed by the learned Rent Controller, Machilipatnam, Krishna District in RCC No. 45 of 1982 is affirmed. There shall be no order as to costs.
30. After pronouncement of the judgment, Sri T.S. Anand, the learned counsel for the respondent-tenant requests that some time be granted to the tenent to vacate the premises. No doubt, the tenant has been in occupation of the schedule premises for about 50 years. But, the litigation is pending in the Courts since 1982. In ordinary course, the tenant, as a practice of the Court would have been entitled for some time. But, in this case having regard to the fact that the landlady had to fight the litigation for about 20 years for eviction of a simple mulgi, I deem it appropriate to allow one month’s time to the tenant to vacate the schedule premises. The fact that the tenant and her two sons including R.W.1 secured alternative accommodation under Exs. A-7 to A-9 also is a circumstance, which must weigh with the Court while granting time for vacating the premises. Accordingly, the tenant, is given one month’s time subject to filing an undertaking before this Court within one week as well as before the learned Rent Controller to the effect that after completion of one month’s time from the date of receipt of a copy of this order, she will vacate the premises and put the petitioner in possession of the mulgi. It is also subject to further undertaking that all arrears of rent, if any, shall be paid forthwith and the future rent shall be paid on or before 10th of succeeding month.