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PETITIONER:

DUGGI VEERA VENKATA GOPALA SATYANARAYANA

Vs.

RESPONDENT:

SAKALA VEERA RAGHAVAIAH & ANR.

DATE OF JUDGMENT19/12/1986

BENCH:

DUTT, M.M. (J)

BENCH:

DUTT, M.M. (J)

MISRA RANGNATH

CITATION:

1987 AIR 406 1987 SCR (1) 674

1987 SCC (1) 254 JT 1986 1188

1986 SCALE (2)1222

ACT:

Andhra Pradesh Buildings, (Lease, Rent and Eviction)

Control Act, 1960, s.10(3) (a) (iii)--Non-residential build-

ing--Eviction of tenant on the ground of Landlord's own

occupation--Facts to be pleaded in petition and proved at

the trial.

HEADNOTE:

The respondents filed an eviction petition against the

appellanttenant in respect of a shop-room under

s.10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, rent

and eviction) Control Act 1960 on the ground of bona fide

requirement for starting a business in readymade garments.

The Rent Controller, passed the eviction order against the

appellant holding that the respondents required the suit

shop for their personal occupation. The Appellate Authority

as well as the High Court affirmed the findings of the Rent

Controller in the appeal and revision respectively.

In appeal to this Court by the appellant-tenant, it was

contended for the first time that since there was no aver-

ment of the facts constituting the grounds or conditions of

eviction as contained in sub-s. (3)(a)(iii) of s. I0 of the

Act, the courts below were not justified in passing the

order of eviction against the appellant.

Dismissing the appeal,

HELD: 1. Under the law of pleadings facts mentioned in

sub-cl.(iii) of s. 10(3)(a) of the Act are to be pleaded in

the petition and thereafter proved at the trial for the

purpose of an order of eviction against the tenant. Further,

any amount of proof offered without appropriate pleading is

generally of no relevance. Therefore, the landlord has to

plead and establish (i) that he bona fide requires the

accommodation let to the tenant for non-residential purposes

for the purpose of continuing or starting the business; and

(ii) that he has no other reasonably suitable non-residen-

tial accommodation of his own in his occupation in the city

or the town concerned. [677H; 678A-B]

Hasmat Rai v. Raghunath Prasad, [1981] 3 SCR 601, relied

upon,

675

2. The point regarding absence of any averment of the

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facts constituting the grounds or conditions of eviction as

contained in subs.(3)(a)(iii) of s. 10 of the Act was not

taken in any of the courts below nor has it been taken in

the Special Leave Petition. For the first time, it has been

raised in the argument. Therefore, there is no justification

to interfere with the order of eviction. [679D]

In the instant case, the respondents did not suppress

any fact at the trial and disclosed the non-residential

buildings owned by the respondent no. I but not in their

occupation. Indeed it is the case of the respondents that

the disputed shop-room is centrally located in the heart of

Guntur city in a business locality, that there are a number

of readymade garment shops in that locality, and that the

disputed shoproom is the best place for commencing such a

business. It has also been observed by the High Court that

the respondents have come forward with a clean and clear

case and with reasons as to why they chose the disputed

shop-room for the proposed business to be commenced by the

respondent No. 2. Moreover, it is not the case of the appel-

lant that if he is given an opportunity to adduce further

evidence after amendment of pleadings, he would be able to

furnish any new material showing that the respondents are

occupying any non-residential building suitable for commenc-

ing the proposed business therein and, as such, they are not

entitled to an order for eviction. In view of the aforesaid

facts also, the appeal is liable to be dismissed. [678E-H]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2714 of

1984.

From the Judgment and Order dated 24.2. 1984 of the High

Court of Andhra Pradesh at Hyderabad in Civil Revision

Petition No. 2053 of 1981.

T.V.S.N.Chari for the Appellant.

Govind Mukhoty, P.K. Gupta and K.V. Upendra Gupta for

the Respondents.

The Judgment of the Court was delivered by

DUTT, J. This appeal by special leave is directed

against the judgment of the Andhra Pradesh High Court dis-

missing the revision petition of the appellant against the

order of the Subordinate Judge, Guntur, whereby he affirmed

the order of the Rent Controller,

676

Guntur, directing the eviction of the appellant from the

disputed shoproom.

The respondents Nos. 1 and 2 are respectively the father

and son. The respondents filed a petition under section

10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent

and Eviction) Control Act, 1960, hereinafter referred to as

'the Act', before the Rent Controller, Guntur, praying for

an order of eviction against the appellant from the disputed

shop-room on the ground that it was bona fide required for

the respondent No.2, who had passed the B.Com. examination,

and would start a business in readymade garments in the

disputed shoproom. The petition was contested by the appel-

lant. It was inter alia denied by the appellant that the

shop-room was bona fide required by the respondents as

alleged.

The learned Rent Controller after considering the evi-

dence adduced by the parties passed the eviction order

against the appellant holding, inter alia, as follows:--

"Thus, after careful scrutiny of the

entire evidence I had no two minds in coming

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to the conclusion that the petitioners re-

quired the suit shop for their personal occu-

pation, namely, for the business of P.W.2. I

find there is an element of need and it is a

bona fide one and not actuated by any oblique

motive. I find there is absolute necessity for

P.W.2 to have his business in the suit shop.

Thus, I find the petitioners had brought home

the point in their favour. I find that there

are valid grounds to order eviction of the

respondent."

Being aggrieved by the said order of the learned Rent

Controller, the appellants preferred an appeal to the Subor-

dinate Judge, Guntur, who, however, affirmed the findings of

the learned Rent controller and dismissed the appeal. The

appellant preferred a revision petition under section 21 of

the Act before the High Court of Andhra Pradesh against the

order of the learned Subordinate Judge. As stated already,

the High Court dismissed the revision petition. Hence, this

appeal by special leave.

The only point that has been urged on behalf of the

appellant is that in the absence of any averment of the

facts constituting the grounds or conditions of eviction, as

contained in sub-section(3)(a)(iii) of section 10 of the

Act, the courts below were not justified in passing

677

the order of eviction against the appellant. Sub-

section(3)(a)(iii) provides as follows :--

"(3)(a). A landlord may, subject to the provi-

sions of clause (d), apply to the Controller

for an order directing the tenant to put the

landlord in possession 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 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 Controller, the landlord bona

fide proposes to commence."

[The provisos are not relevant for our purpose

and, as such, they are omitted.]

The conditions which are necessary to be fulfilled for the

purpose of getting an order of eviction under sub-clause

(iii) are:--

(1) The building is a non-residential

building.

(2) The landlord is not occupying a

non-residential building in the city, town or

village concerned, either belonging to him or

to the possession of which he is entitled

under the Act or otherwise.

(3) Either he requires the building for

the purpose of business which he is carrying

on or he bona fide proposes to commence a

business.

There can be no doubt that under the law of pleadings

facts mentioned in sub-clause (iii) are to be pleaded in the

petition and thereafter proved at the trial for the purpose

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of an order of eviction against the tenant. In a decision of

this Court in Hasmat Rai v.

678

Raghunath Prasad, [1981] 3 SCR 605, it has been observed by

Desai, J. that in order to obtain an order of eviction of a

tenant under section 12(1)(m) of Madhya Pradesh Accommoda-

tion Control Act, 1961, the landlord has to plead and estab-

lish (i) that he bona fide requires the accommodation let to

the tenant for non-residential purposes for the purpose of

continuing or starting his business; and (ii) that he has no

other reasonably suitable non-residential accommodation of

his own in his occupation in the city or the town concerned.

Further, it has been observed that any amount of proof

offered without appropriate pleading is generally of no

relevance. We respectfully agree with the above statement of

law and reiterate the same. We are, however, not inclined to

interfere with the impugned order of eviction in the instant

case for the reasons stated hereinafter.

The point was not taken in any of the courts below, nor

has it been taken in the special leave petition. For the

first time, it has been raised in the argument before us.

Mr. P.P. Rao, learned counsel appearing on behalf of the

appellant, has produced before us a copy of the memorandum

of Civil Revision Petition that was filed in the High Court.

We do not, however, find that the point has been specifical-

ly taken in the grounds of revision. It is not disputed that

the point was not also argued before the High Court.

It is true that all the ingredients of sub-

section(3)(a)(iii) of section 10 have not been pleaded in

the petition for eviction. The respondents have only pleaded

their bona fide requirement of the disputed shop-room for

the purpose of commencing a business therein. There is no

pleading that the respondents are not occupying any non-

residential building in the city, town or village concerned

either belonging to them or to the possession of which they

are entitled under the Act. The respondents, however, did

not suppress any fact at the trial and disclosed the non-

residential buildings owned by the respondent No. 1, but not

in their occupation. It has also been observed by the High

Court that the respondents have come forward with a clean

and clear case and with reasons as to why they chose the

disputed shop-room for the proposed business to be commenced

by the respondent No. 2. Even if we set aside the eviction

order and send the case back on remand to the Rent Control-

ler allowing the parties to amend the pleadings and to

adduce further evidence, it will be a futile exercise inas-

much as all the materials are already on record. It is not

the case of the appellant that if he is given an opportunity

to adduce further evidence after amendment of pleadings, he

would be able to furnish any new material showing that the

respondents are occupying any

679

non-residential building suitable for commencing the pro-

posed business therein and, as such, they are not entitled

to an order for eviction. It is also not in dispute that the

other non-residential buildings belonging to the respondent

No. 1 are in occupation of tenants. The principal contention

of the appellant before the courts below was that the re-

spondents had no reasonable justification for choosing the

disputed shop-room for the purpose of commencing a business

therein for the respondent No. 2. This contention has been

overruled by the courts below and also by the High Court

inasmuch as the respondents had given sufficient reasons for

selecting the disputed shop-room for the purpose of commenc-

ing a business in readymade garments. Indeed, it is the case

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of the respondents that the disputed shop-room is centrally

located in the heart of Guntur city in a business locality,

that there are a number of readymade garment shops in that

locality, and that the disputed shop-room is the best place

for commencing such a business.

In view of the facts stated above, particularly of the

fact that the point was not raised at any stage of the

proceedings, we do not think that we shall be justified in

interfering with the order of eviction.

For the reasons aforesaid, the appeal is dismissed.

There will, however, be no order as to costs.

We, however, direct that the order for eviction of the

appellant from the disputed shop-room shall not be executed

till March 31, 1988 provided the appellant gives an under-

taking to this Court in writing within four weeks from date

that he will vacate and deliver up vacant and peaceful

possession of the disputed shop-room on or before March 31,

1988 and regularly keep paying the respondents monthly

damages calculated at the rate of rent for use and occupa-

tion in the meanwhile.

M.L.A. Appeal dis-

missed.

680