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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