ORDER
S.R.K. Prasad, J.
1. CRP No. 4556 of 2002 is directed against the orders passed in R.A. No. 239 of 1998 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad. CRP No. 4565 of 2002 is directed against the orders passed in R.A. No. 241 of 1998 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad.
2. The facts that are required for consideration can be briefly stated as follows: The respondent herein is the landlord and the petitioners herein are tenants of the schedule premises being a non-residential building which originally belongs to Varakantham Indrasena Reddy. The landlord is said to have purchased the same on 29.7.1994. Thereupon, he presented R.C. No. 132 of 1995 on the file of the Additional Rent Controller, Hyderabad, seeking eviction of the tenants on the grounds of wilful default in payment of rents and also bona fide personal requirement for carrying on business under Sections 10(2)(1) and 10(3)(a)(iii)(b) of the Andhra Pradesh Buildings (lease, Rent and Eviction) Control Act, 1960. The same has been resisted by the tenants on the ground that there is an order obtained in R.C. No. 137 of 1994 on the file of the I Additional Rent Controller, Hyderabad, whereunder the Court permitted them for depositing the rents in the bank account of the previous landlord and they have been depositing the same. They did not commit any default. It is also contended that they spent Rs. 2400/- towards repairs and Rs. 10,000/- was kept in deposit and the rent stipulated was Rs. 750/- per month. It is also contended that no notice was issued regarding the sale of the premises in favour of the present landlord. He cannot seek eviction. After enquiry, the learned Rent Controller ordered eviction on the ground of wilful default while negatived the plea of bona fide requirement. Aggrieved by the same, the landlord filed R.A. No. 239 of 1998 whereas tenants preferred R.A. No. 241 of 1998. After appreciating the entire evidence, the learned Additional Chief Judge, City Small Causes Court, Hyderabad, while disposing of the both the appeals by a common judgment dated 19.8.2002 allowed R.A. No. 239 of 1998 and dismissed R.A. No. 241 of 1998 and ordered eviction of the tenants. Aggrieved by the same, these two revisions are filed by the tenants.
3. The points that arise for consideration in these two revisions are:
1. Whether the tenants committed wilful default in payment of rents?
2. Whether the premises are required bona fidely for the personal occupation of the landlord?
4. The learned Counsel appearing for the revision petitioners mainly contends that the tenants are depositing the rents as per the orders of the Court in R.C. No. 137 of 1994 in the bank account of the previous landlord and hence they have not committed any default. It is further contended that no notice was served on the tenants. It cannot be said that the tenants have committed wilful default. Coming to the aspect of bona fide requirement, the learned Counsel for the revision petitioners contends that two mulgis have become vacant after commencement of the proceedings and they have to be taken into consideration, namely, the subsequent events and the bona fide requirement will not be there.
5. The learned Counsel appearing for the landlord, who is respondent herein, contends that admission has been made by R.W.1 regarding the sale deed obtained by the landlord. When such is the thing, payment of rents to the former landlord in spite of knowledge of sale deed will only show about wilful default on the part of the tenants. Coming to the aspect of bona fide requirement, the learned Counsel further argued that the landlord was having individual business. He has filed eviction petitions and he has nothing to do with the premises that fell vacant which belong to the joint family.
6. I now proceed to deal with the first aspect, namely, wilful default in payment of rents. Insofar as wilful default in payment of rents is concerned, concurrent findings of fact have been arrived at by both Courts below. Normally, this Court will not interfere with the concurrent finding of fact arrived at unless it is shown to be perverse and not based on the material on record. No doubt, tenants are permitted to deposit rents in R.C. No. 137 of 1994 in the bank account of the previous landlord. If he continues to deposit the amount in spite of coming to know about the sale deed, it certainly amounts to deliberately depositing the amount in the bank account in spite of change of ownership of the premises. Reliance is mainly placed on the admission made by R.W.1. R.W.1 has admitted that the previous owner Indrasena Reddy informed the tenants about the, sale made by him in favour of the present landlord by letter dated 16.8.1994. The tenants are aware of the change of landlord. When once there is a change in the landlord, it is not known how the rent is continued to be deposited by virtue of the orders of the Rent Controller in the bank account of the previous landlord. This admission of R.W.1 will only show that he is deliberately and intentionally deposited the rents knowing fully that there is change in the ownership of the property. The tenants are to be blamed for the conduct and it cannot be said that they have not committed default or muchless wilful default. This Court in a decision reported in Subbaiah Chetty v. Dhanalakshmamma, 1982 (2) (HC) APLJ SN 10, held that if the tenant is put on notice with regard to the petition schedule premises being sold, it is not for him to dispute that factum and on the contrary it is his duty to send the rent to the vendee. It is further observed that if he apprehends nominality of any such transaction he could pay to the vendee on protest, if he so chooses. It is also stated that it is not in dispute that the rent has not been paid to the landlady and it amounts to wilful default in payment of rent to the right person. In G. Surapa Raju v. T. Mohana Rao, 1993 (2) ALT 658, it is held that default in payment of rent will not become wilful if the tenant made efforts to pay the rents. It is for the tenant to show that he has made every effort to pay the rents. The facts of that case have no application to the present case. If the admissions made by R.W.1 are taken into consideration, they only show that in spite of knowing that there was a sale deed in favour of the present landlord, the amount was deposited in the account of the previous landlord. Both the Courts have rightly held that it amounts to wilful default.
7. Coming to the aspect of bona fide requirement, it is now well settled that subsequent events can be taken into consideration while adjudicating the said point in dispute. What is urged before this Court is the father of the landlord has four mulgis bearing Municipal Nos. 3-4-276/6, 7, 8 and 9 at the distance of 200 yards from the present mulgi. Out of which two mulgis bearing Municipal Nos. 3-4-276/6 and 3-4-276/8 are vacant. The version given out by R.W.1 cannot be believed regarding letting of the premises for running lottery business, as there is prohibition for conducting lottery business.
8. The learned Counsel appearing for the revision petitioners has cited catena of decisions for appreciation. He placed reliance on the decision reported in A. Appa Rao v. Eswaramma, 1989 (2) APLJ 190 (DB). The relevant portions at Paras 16 and 17 read as under:
“Thus it is seen that the ratio of the Full Bench decision is that the occupation of any member of the family must be deemed to be the occupation of the landlord. It makes no difference whether it is the husband or the wife or the children that are in possession of the non-residential building. Even if the building is in occupation of one of the members of the undivided family, the occupation must be construed as that of every member of the family including the wife. “Family” does not mean a Hindu joint family and the concept of Hindu Law cannot be imported. It cannot be said that since the wife is not a member of the Hindu joint family the husband or sons possession cannot be said to be that of the wife. As already stated supra, if such a construction is placed then the sons or the husband’s requirement would not be the requirement of the landlady in which case she could not be entitled to get the tenant evicted.
In the instant case, the husband and the son of the landlady are doing business in two non-residential buildings in the same city and she cannot ask for possession of a third building which is in the possession of a third building which is in the possession of the tenant on the ground that another son wants to start a new business.”
In Kothamasu Koteswara Rao v. Sanagapalli Narayana Rao, 1989 (3) ALT 526, it is observed by this Court at Para 6 as under:
“Even on facts in this case, the son who claims that he wants the suit building for his business was not examined. The Appellate Court relied on the judgment of this Court in M. Venkata Reddy’s case (1966 (2) An.W.R.64). The facts in that case are similar to the facts in this case also but the very same judgment has been overruled by the Full Bench of this Court. It is for the landlord to make out a case and cannot succeed on the failure of the tenant in not producing the evidence with regard to the oblique motive that has been set up by the party concerned. On the basis of he the admitted facts, this Court comes to the conclusion basing on the judgments of this Court rendered by the Full Bench as well as the Division Bench that the landlord who has got a non-residential building of his own in the same town and is running business with the assistance of his eldest son cannot be permitted to file an eviction petition for eviction of the tenant of another non-residential building for the purpose of running a business by his eldest son who is living with him and doing business in another portion of his non-residential building.”
It is also held by the Supreme Court in D. Devaji v. K. Sudarashana Rao, 1994 Supp (1) SCC 729, as follows:
“Under Section 10(3)(a)(iii) of the A.P. Act the landlord is required to prove his bona fide requirement of the non-residential building to carry on of commence a business. The object of the Act is to enable the landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or which he bona fide proposes to commence. If landlord is in possession of a non-residential building in the city, town or village and he requires another non-residential building for expansion of his business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village. Section 10(3)(a)(iii) creates an embargo. The bar under Section 10 against securing eviction of the tenant of such non-residential building is absolute. The suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord are not relevant.”
Their Lordships have approved the decisions reported in Balaiah v. Chandoor Lachaiah, and Vidya Bai v. Shankerlal, . It is also observed by the Apex Court in Super Forgings and Steels (Sales) Pvt. Ltd. v. Thyabally Rasuljee, , as under:
“Section 10(3)(a)(iii) of the Act confers a right on a landlord to take advantage of the ground available thereunder to evict his/her tenant from a non-residential building. The right conferred under that provision of the Act is not an accrued right as a mere right to take advantage of the provision of an Act is not an accrued right. Therefore, if a landlord under the Act obtains an eviction order in respect of a non-residential building against the tenant taking advantage of the right; conferred upon him in that regard under Section 10(3(a)(iii), such eviction order does not create in him an indefeasible vested right when it has not become final and conclusive, having become the subject of an appeal under Article 136 of the Constitution. The Supreme Court has power to take note of the circumstances which have cropped up during the pendency of an appeal under Article 136 for granting, denying or moulding the relief to be given to a party in such appeal, for meeting the ends of justice. Hence, the power of the Supreme Court in an appeal under Article 136 to take cautious cognizance of events and developments subsequent to institution of eviction proceeding and grant, deny or mould the relief sought by a party, in consonance with justice and fair play is not restricted merely because it is exercising its power to deal with an appeal conferred upon it by the Constitution.”
What the Supreme Court stated in the aforesaid decisions is that it has power to take note of subsequent events for granting or denying or moulding the relief to be given to a party. In any view of the matter, subsequent events can always be taken note of by this Court during the pendency of the civil matters. The Supreme Court in G. Kaushalya v. Ghanshyamdas, , also held as under:
“Section 10(3)(a)(iii) of the Act provides when the landlord requires the building whether residential or non-residential for his own occupation he may apply for eviction of tenant 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. The expression “to the possession of which he is entitled” would not mean possession otherwise than as an owner or in that capacity or having a superior right or under any of the grounds under the Act. Provisions of Section 8(3)(a)(ii) of the Mysore Act are quite in pari materia with the provisions of Section 10(3)(a)(iii) of the Act. Therefore, merely because the landlord is already having his business in a leased premises of which he is in possession, it cannot be said that he cannot seek eviction of the tenant. It is not disputed that other conditions of Section 10(3)(a)(iii) are satisfied in favour of the landlord. 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 landlord and his brothers were conducting business on partnership in leased premises yet it was no ground to contend that the requirements of landlord is not bona fide.”
In Boorgu Jagadeshwaraiah v. Pushpa Trading Co., , the principles laid down in D. Devaji v. K. Sudarashana Rao, 1994 Supp (1) SCC 729, is doubted. The relevant portion at Para 8 reads as follows:
“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 difficulty in D. Devaji case (supra) standing in the way of the landlord-appellant 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.”
The above judgment is rendered by a three Judge Bench of the Supreme Court.
9. The following principles can be culled out from the aforesaid decisions of the Supreme Court as well as this Court.
1. When the landlord requires a building whether it is residential or non-residential for his own occupation, he may apply for eviction of the tenant.
2. The requirement of the landlord should be bona fide.
3. The consideration of suitability, convenience or sufficiency of a building in occupation of landlord is relevant and has to be considered.
4. If the landlord is in possession of a non-residential building in the city, town or village or requirement of another non-residential building for expansion of business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village, Section 10(3)(a)(iii) places an embargo.
5. Where the landlord in occupation of a tenanted premises is threatened of ejectment, he is entitled to seek for eviction.
6. Where a landlord is occupying a non-residential building of his own seeks eviction of a tenant in occupation of another non-residential building, it is not incumbent on the landlord to first vacate the non-residential premises in his own occupation as a condition precedent for maintaining an eviction petition in respect of his own non-residential premises in the occupation of his tenant.
7. The statutory requirement that landlord should not be occupying for his business another non-residential building in the city which is his own includes co-ownership.
8. The Act did not prohibit if the members of family of landlord possessed non-residential premises of his own.
9. If the landlord and his brothers were conducting business on partnership in leased premises, it has no ground to contend that the requirement of the landlord is not bona fide.
10. It is a case where the Appellate Court has reversed the findings arrived at by the Rent Controller on the basis that P.W.1 and his brothers are living with their father, who is examined as P.W.2, and P.W.2 is Karta of his family and they are under the control of P.W.2. It appears that P.W.1 has admitted about joint family and his father was acting as Karta. P.W.2 has admitted that he was having four mulgis and in 276/6 the tenant is carrying lottery business. In any view of the matter, P.W.2 is unable to give the names of the tenants who stayed in mulgi Nos. 6 and 8. What is contended is that they are only vacant and due to that reason he was not able to give the names of the tenants. The failure to give the names of tenants will indicate that his version cannot be accepted. I am of considered view that the Rent Controller has rightly come to the conclusion that the requirement of the landlord is not bona fide. The Appellate Court ought to have taken into consideration the evidence and the realities before reversing the order of the Rent Controller. That had not been done since no evidence is placed to show that they are in occupation of the premises, which is said to be vacant. Insofar as other aspects, namely, depositing of rents in the account of the previous landlord and the repairs conducted to the premises are concerned, it is always open for the tenants to proceed against the previous landlord and workout remedies.
11. To sum up, I am of considered view that the tenants have committed wilful default and the premises are not bona fidely required for running business. The eviction order passed has to be upheld on the ground of wilful default only. The order in RA No. 239 of 1998 is liable to be set aside and the order in RA No. 241 of 1998 is liable to be confirmed.
12. In the result, CRP No. 4556 of 2002 is allowed and CRP No. 4565 of 2002 is dismissed confirming the eviction order passed by the Rent Controller. Time for eviction is one month. No order as to costs.