Gulab Chand Pukhraj v. R B. Jinender Raj & Anr.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 849 of 2002. From the Judgment & Order dated 26.4.2001 of the High Court of Andhra Pradesh at Hyderabad in C.R.P. No. 4009 of D 1998. C.M. Nayyar, S.K.Thakkur, Kirti Mansingh, A. Venayagam Balan for the Appellant. A.D.N. Rao, Neelam Jain (for A. Subba Rao) for the Respondents. The Judgment of the Court was delivered by . DALVEER BHANDARI, J.

1This appeal is directed against the judgment of the High Court of Andhra Pradesh at Hyderabad dated 26.4.2001 delivered in Civil Revision Petition No.4009 of 1998.

2The short question which arises for consideration in this appeal is .:.. whether a co-owner occupying a non-residential premises ean seek eviction of a tenant in possession of . --f another non-residential premises for his bona fide requirements?

3The appellant is a tenant of the premises bearing No. 7- 2-764 situated at Pot Market, Secunderabad, Andhra Pradesh. The respondents are the co-owners of two non-residential premises bearing Municipal Houses Nos.7-2-763 and 7-2-764 situated at Pot Market, Secunderabad. These two nonresidential premises fell to their share by virtue of the 'Will' executed by their father. The respondent landlords have been conducting the business in one shop only. The First respondent has been carrying on business of money lending in a portion of the premises 7-2-763 and the second respondent has been conducting a business in jewellery in the remaining portion of the same. shop. It was the case of the second respondent that he required the premises (shop) in question from the tenant for starting the business exclusively for jewellery in a separate shop.

4The respondent landlords filed a claim petition before the Rent Controller in R.C. No.231 of 1994 under section 10(3)(a)(iii) of the AP. Buildings (Lease, Rent & Eviction) Control Act, 1960 [hereinafter referred to as "the 1960 Act") seeking evi.ction of the appellant tenant from the scheduled premises namely 7-2-764 situated at Pot Market, Secunderabad.

5The appellant contended that the landlords are already in possession of a non-residential premises and, therefore, their petition seeking eviction of another non-residential premises is not maintainable in law.

6The parties led evidence before the Rent Controller. The Rent Controller after recording the evidence held that the landlords are the joint owners of non-residential premises bearing nos. 7-2-763 and 7-2-764. However, the landlords are in possession of only one shop in the premises bearing no. 7- 2-763. The Rent Controller relying on the decision of the Full Bench of the High Court in Vidya Bai & Another v. Shanker/al & Another AIR 1988 AP 184 held that since the landlords are GULAB CHAND PUKHRAJ v. R.B. JINENDER RAJ & 841 ,.._A already in possession of one non-residential premises, they cannot seek eviction of tenant from another non-residential premises. The petition filed by the respondent landlords was dismissed by an order dated 4.12.1995.

7The respondent landlords carried the matter in appeal in R.A. No.10 of 1996. The First Appellate Court held that the respondents landlords have proved the bona fide requirement for starting business in jewellery and also held that second respondent is a co-owner and not an exclusive owner and hence not entitled to maintain application for eviction of another c residential premises. The First Appellate Court allowed the appeal and set aside the order of the Rent Controller.

8The appellant tenant aggrieved by the order of the First Appellate Court in RA No.10 of 1996 preferred a Civil Revision Petition No.4009 of 1998 before the High Court.

9The plea taken by the appellant tenant is that the respondent landlords are the co-owners of one non-residential l premises and, therefore, they are not entitled to seek eviction of the appellant tenant occupying another non-residential I premises. The appellant relied on the decision of this court in Super Forgings & Steels (Sales) Pvt. Ltd. v. Thyabal/y Rasuljee (1995) 1 SCC 410 and Vidya Bai (supra). On the other hand, the respondent landlords placed reliance on Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co. (1998) 5 sec 572, according to which a landlord is not precluded to seek eviction of tenant from any non-residential building even if he is having another non-residential building. Reliance has been also placed on Rasik Auto Stores & Others v. Navin V. Hantodkar & Another (1998) 8 SCC 177 and Om Prakash v. Basanthilal (1999) 9 SCC 618.

10The issue that arises for consideration is - whether under section 10(3)(a)(iii) of the 1960 Act, the co-owner can be treated as owner of the premises and whether he is entitled to seek eviction of tenant from another non-residential A premises?

11For proper appreciation of law, it is necessary to set out section 10 (3)(a) of the 1960 Act as under: "10(3)(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) x x x x x (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 otherwisefor the purpose of a business which he is carrying on, on the date of the application, or for the purpose of a business which in the opinion of the Controller, the landlord bona fide proposes to commence."

12In J. Pandu v. R. Narsubai (1987) 1 SCC 573, this court held that a landlord, notwithstanding his occupation of a non-residential building, can still seek eviction of his tenant from his business premises if the landlord is able to satisfy that the non-residential building occupied by him is not sufficient and suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence or that the shifting of his business has become inevitable. This Court has taken the same view in Saroj Kumar Das (Dr.) v. Arjun Prasad Jogani (1987) 4 SCC 262.

13It may be pertinent to mention that this court in 0. Devaji v. K. Sudarashana Rao 1994 Supp. (1) SCC 729 had an occasion to deal with section 10(3)(a)(iii) of the 1960 Act. In GULAB CHAND PUKHRAJ v. R.B. JINENDER RAJ & 843 that case, this court took a contrary view and categorically held that a landlord in possession of other non-residential buildings is not entitled to evict tenant from a non-residential building.

14Obviously, there is clear conflict of opinions of this court in the aforementioned cases. In Boorgu Jagadeshwaraiah & Sons (supra), a three-Judge Bench of this court examined all these three decisions given in D. Devaji (supra), Dr. Saroj Kumar Oas (supra) and J. Pandu (supra) and came to the conclusion that the aspects of quality, size and suitability of the building have been totally put out of consideration. Nonc consideration of the quality, size and suitability of the building would be to frustrate the purposes of the Act. The Court observed as under: "5. The expression "reasonably suitable accommodation" is the pivot of the provision permitting the court going into the question whether the premises involved were reasonably suitable for the purpose. It is .on that count that Dr Saroj Kumar Das case was decided by making the following observation:

"So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and· if it is not so then mere availability of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and to this counsel for both the parties also agreed but the main contention was that on the facts appearing in evidence in this case whether the inference could be drawn that the flat on the thirteenth floor in South Calcutta was reasonably suitable to satisfy the need of the appellant-landlord." 6. J. Pandu case is closer being one under Section 10(3)(a){iit) of the Andhra Pradesh Buildings (Lease, Rent GULAB CHAND PUKHRAJ v. R.B. JINENDER RAJ & 845 A ,... 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 entitled 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." ,# t 8.

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 c 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 )Ii,_ 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."

15In Boorgu Jagadeshwaraiah & Sons (supra), this court was clearly of the opinion that the aspects of quality, size and suitability of the building cannot be out of consideration and doing so would be to frustrate the purposes of the Act. In the said case, the court remitted the matter to the High Court for considering the objection of the tenant as to the claim of the landlord.

16The three-Judge Bench decision in Boorgu Jagadeshwaraiah & Sons (supra) seems to be a reasonable ~ --t view and of course is binding on us.

17Consequently, we allow the appeal and set aside the impugned judgment and remit the matter to the Rent Controller A for considering the objection of the tenant as well as the claim of the landlords. The Rent Controller may permit the parties to lead additional evidence.

18In the facts and circumstances of this case, we deem it appropriate to request the concerned Rent Controller to-- B decide the case as expeditiously as possible. We direct the parties to bear their own costs. R.P. Appeal allowed.