Motilal B. Naik, J.
1. Revision petitioner is the tenant against whom eviction petition in R.C. No. 600 of 1994 was filed initially by Bhagwandas Asawa and his elder son Ashok Kumar Aswa. It is noticed during pendency of rent control proceedings in R.C. No. 600 of 1994, the 1st petitioner Bhagwandas Aswa died and his legal representatives i.e., Smt. Shanta Bai Asawa, wife, Omprakash Asawa, another son and other legal representatives were brought on record as Petitioners 2, 4, 5, 6, 7 and 8 respectively. Later during pendency of rent appeal before the Rent Appellate Authority in R.A. No. 318 of 1999, which is filed by the petitioner in this revision being aggrieved by the eviction order passed by the Rent Controller, the 2nd petitioner Ashok Kumar Asawa, son of late Bhagawandas Asawa, also died and his legal representatives were also brought on record as respondents 8 to 11 in R.A. No. 318 of 1999.
2. The two petitioners i.e., Bhagawandas Asawa and Ashok Kumar Asawa instituted eviction petition in R.C. No. 600 of 1994 under Section 10(2)(i) and 10(3)(a)(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 seeking eviction of the tenant from the petition schedule mulgi bearing Door No. 21-2-262 situated at Lad Bazar, Hyderabad. In the petition so filed, they claimed that the mulgi was given on rent to the tenant on a monthly rent of Rs. 350/- and the tenant used to pay rent by way of cheques and that at the time of induction the tenant also made security deposit of Rs. 10,000/- towards fixtures and furniture, which is refundable at the time of vacation of the premises. It was the case of these petitioners that the tenant paid the last rent under a cheque in the month of January, 1988 for an amount of Rs. 2,100/- towards the rent for the period from January to June, 1988 and thereafter the tenant failed to pay rent in spite of several demands and thereby committed wilful default. The petitioners-landlords also claimed that neither the 1st petitioner i.e., Bhagwandas Asawa nor his son Ashok Kumar Asawa owned any other non-residential premises in the twin cities and that the petitioners want to do pulses business or readymade garments business in the petition schedule mulgi and sought eviction of the tenant for a bona fide purpose. On these two grounds the petitioners sought eviction of the tenant.
3. The tenant filed a counter denying the averments made in the petition and further pleaded that the first petitioner collected huge advance of Rs. 10,000/-. According to the tenant, originally the rent was at the rate of Rs. 225/- per month and it was enhanced in the month of July, 1984 and at that time the first petitioner collected extra deposit of Rs. 1,500/- vide cheque bearing No. 651696 and therefore, the total amount of advance paid by him was Rs. 11,500/- and that the rent is not payable once in six months pleaded by the petitioners. The tenant denied the allegation that the petitioners have kept fixtures and furniture and that the tenant was given the mulgi after bifurcating it from the adjacent mulgi which was in possession of Basheer Bangles Stores and that the practice of receiving rent is that the authorized representative of the deceased first petitioner used to come and collect cheques and as usual a cheque bearing No. 852915, dated 27.7.1988 for Rs. 2,100/- for the period from 1.7.1988 to 31.12,1988 was got prepared and the representative of the first petitioner by name Durga Prasad came and collected it on 3.8.1988 and again he came and returned the cheque on 11.11.1988 stating that the first petitioner will personally come and collect the cheque and that since then nobody came to collect the cheque, the tenant was constrained to issue a legal notice, dated 22.12.1988 and thereupon filed R.C.No. 3 of 1989 under Section 9(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. According to the tenant the said R.C. was allowed and that he was permitted to deposit rent into the Court and thereafter he has been depositing rents into Court. It was also stated in the counter that the tenant filed O.S.No. 3271 of 1989 for refund of the amount retained by the first petitioner. The tenant further contended that the elder son of the first petitioner Ashok Kumar is a real estate agent and that the petition schedule mulgi is located in the congested Lad Bazar, where only business of bangles is run and that the first petitioner is not specific regarding what sort of business he wants to do along with his son and prayed for dismissal of the rent control proceedings.
4. Basing on the rival pleadings, the Rent Controller framed the following points for consideration:
(1) Whether the respondent is a defaulter, if so, a wilful defaulter?
(2) Whether the respondent did acts of waste by lowering the level of the floor.
(3) Whether the first petitioner and his son Mr. Ashok bona fide require the premises for carrying on readymade garments?
5. On a consideration of oral and documentary evidence, the Rent Controller rejected the grounds of wilful default in payment of rent, however ordered eviction of the premises holding that the requirement of premises is bona fide purpose.
6. As against eviction order passed by the Rent Controller in R.C. No. 600 of 1994, dated 30.7.1999, the matter was carried in appeal in R.A. No. 318 of 1999. The Rent Appellate Authority not only decided the issue with regard to bona fide personal requirement of the premises by the petitioners, but also decided the issue with regard to wilful default in payment of rent by the tenant and recorded a finding against the tenant that the tenant had committed default in payment of rent, relying on a decision of this Court in Billani Ranganaydkulu and Ors. v. Mattupalli Nageswara Rao, , holding that when an appeal is filed by any of the party, the other party in the appeal will be entitled to agitate all the grounds on which adverse finding is given and a separate appeal need not be filed by the party before the Appellate Authority.
7. The present revision petition is filed against the order, dated 28.7.2003 passed by the Rent Appellate Authority in R.A. No. 318 of 1999.
8. Learned Counsel for the revision petitioner-tenant mainly attacked the order of the Rent Appellate Authority on two counts. Firstly, it is stated that though the petitioners numbering two, father and son, initially filed R.C. No. 600 of 1994 before the Rent Controller seeking eviction of the premises on the grounds of bona fide personal requirement of the premises for establishing their own business in readymade garments, since during pendency of rent control proceedings before the Rent Controller the first petitioner Bhagawandas Asawa, father of the second petitioner died and during pendency of the appeal before the Rent Appellate Authority, the second petitioner Ashok Kumar Asawa, who is the elder son of the deceased first petitioner, also died, and as such the purpose for which the demised premises is sought though no more available, the Rent Appellate Authority ought to have allowed the appeal filed by the petitioner-tenant and dismissed the eviction petition on that ground also.
9. Secondly it is stated that when the Rent Controller rejected the ground of wilful default in payment of rent, an appeal was filed only by the tenant against the order of eviction on the sole ground of bona fide personal requirement of the premises, in the absence of an appeal filed by the landlords against the adverse finding recorded by the Rent Controller on the issue of wilful default in payment of rent, the Rent Appellate Authority could not have reversed the said finding at the instance of the landlords.
10. In support of his stand that when persons, who sought the building for bona fide purposes die during pendency of the proceedings bona fide requirement ceases, learned Counsel cited a decision of the Hon'ble Supreme Court in Siddalingamma and Anr. v. Mamatha Shenoy, . Laying emphasis on the observation made by the
Hon'ble Supreme Court in Para 9 of the judgment, learned Counsel stated that in view of the law laid down by the Hon'ble Supreme Court, the Rent Appellate Authority should have dismissed the rent control proceedings rather than confirming the finding recorded by the Rent Controller as if bona fide personal requirement still exists.
11. In order to appreciate this submission I proceed to examine the ratio laid down by the Hon'ble Supreme Court. The facts in that case are: The suit premises is situated in Rajaji Nagar, Bangalore. Eviction petition was filed on 25.2.1993. The requirement set out in the petition was that the husband of the first appellant was suffering from asthma and respiratory problems and taking oxygen regularly from the cylinder and for medical treatment he was frequently required to be taken to Bangalore from Bettalasoor, a village situated at some distance from Bangalore. The Appellant No. 1 was having two sons and grandchildren living at the village with her and the grandchildren were required to be shifted to Bangalore for better education. The accommodation in occupation of Appellant No. 1 and her family members was too small and inconvenient for all the family members to reside in. It was also pleaded that the respondent was running a beauty parlour and also an ice-cream shop and was financially sound and able to secure alternative accommodation. It was further pleaded that the respondent-tenant would not suffer any hardship if she was required to vacate the premises and in the event of eviction being denied to the landlady, she would suffer great hardship.
12. During pendency of the rent control proceedings, Appellant No. 1's husband expired. She had no issues of her own. Those who are residing with her are not her own sons and grandchildren, but her real sister's sons whom she treats as her adopted sons and their children. The petition for eviction was amended by moving an application on 22.1.1997 whereby it was submitted that the Appellant No. 1 herself was not keeping well and she required better treatment which was available at Bangalore and therefore she intended to shift from the village house to her own house situated in the city of Bangalore along with her adopted children. On the basis of evidence, the Rent Controller by judgment, dated 4.3.1997, held that the suit premises were required for the use of the Appellant No. 1 and her family members. The Appellant No. 1 was aged about 55 years, who was not maintaining good health and was advised to take treatment in Bangalore and in the interest of better treatment of hers she needed to shift her residence to Bangalore. The younger children in the family of Appellant No. l were also required to be shifted to Bangalore for better education. While recording those factors, the Rent Controller ordered eviction. The tenant took the matter before the High Court in a revision and the High Court held that Appellant No. 1's husband, whose sickness needed treatment at Bangalore, was the principal cause pleaded in the eviction petition for shifting to Bangalore, having expired, the cause had ceased to exist during the pendency of the petition. The High Court also recorded that the appellant had no children of her own but tried to project her sister's sons as her own sons and such an attempt appeared to be mala fide on her part. Insofar as her own deteriorating health and need for taking treatment at Bangalore is concerned, the High Court observed, "no doubt the petitioner has placed some material with regard to her ill-health but her health is not such a serious one warranting her shifting to Bangalore." Stating these circumstances the learned Single Judge of the High Court concluded that keeping in view the social purpose sought to be achieved by the welfare legislation of Rent Control Law, the trial Court had committed a patent error in directing eviction of the tenant. The High Court did not go into the question of comparative hardship and allowed the revision petition and directed eviction petition to be dismissed, but observed "before concluding, taking into consideration the material facts I deem it proper to observe that the petitioner be permitted to file a second petition if she so chooses notwithstanding this petition by stating correct facts, if she is desperately in need of the same."
13. The matter was then taken by Appellant No. 1, wife of the original petitioner, before the Hon'ble Supreme Court and the Hon'ble Supreme Court at Para 9 of the judgment observed thus:
"Rent Control Legislation generally leans in favour of tenant, it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, , this Court has held that a bona fide requirement
must be an outcome of a sincere, honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts, by placing himself in the place of the landlord is, whether in the given facts proved by material on record the need to occupy the premises can be said to be natural real, since, honest? If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself dwell into lesser premises so as to protect the tenant's continued occupation in tenancy premises. In Deena Nath v. Pooran Lal,
this Court has held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire."
14. The Hon'ble Supreme Court, while laying two principles, having regard to the facts and circumstances of the case, on the basis of the finding recorded by the High Court allowed the appeal filed by the Appellant No. 1, who is the wife of the original petitioner, holding that when the High Court itself has given a finding that the Appellant No. 1 needs medical requirement and that an application for amendment under Order 6 Rule 17 of CPC was moved and the deficiency in the pleadings stood removed by the amendment permitted by the Trial Court in exercise of its discretionary jurisdiction and that in the petition for eviction, as originally filed, the health condition of the landlady herself and the factum of children residing with her not being her own grandchildren were not pleaded, nonetheless evidence was allowed to be let in without objection and was recorded by the Trial Court. The Hon'ble Supreme Court held that the requirement pleaded and proved was neither a pretext nor a ruse adopted by the landlady for evicting the tenant and in such circumstances, the order of the trial Court deserves to be restored. The Hon'ble Supreme Court further held, "on the question of comparative hardship and also on the issue of partial eviction, having ourselves evaluated the well-reasoned findings recorded by the Trial Court, we are inclined to uphold the same more so when they have not been reversed by the High Court."
15. In the light of the findings recorded by the Hon'ble Supreme Court and in the facts and circumstances of the case, it is difficult for this Court to appreciate how the law laid down by the Hon'ble Supreme Court helps the petitioner, who is the tenant, in opposing eviction order granted by both the Courts below, at least on the ground of bona fide personal requirement. On the contrary, the principle emerges from this decision of the Hon'ble Supreme Court is that when the Trial Court has recorded facts that initially though the husband of the Appellant No. 1 was required accommodation and later, on his death she herself fell ill and was required to take treatment at Bangalore, which factor was recorded by the Rent Controller, but the High Court having not upset the finding of the Rent Controller on these aspects, could not have dismissed the eviction petition. In other words it could be said, the grounds taken are proved, if the Courts are satisfied that the requirement is for bona fide purpose, the death of the petitioners during pendency of the proceedings, need not be a crucial factor, however depends upon circumstances of each case.
16. In Kamaleswar Prasad v. Pradumanju Agarwal (dead) by LRs., , the Hon'ble Supreme Court held that in examining
bona fide requirement of a landlord, the crucial date for existence of landlord's requirement is the date of filing of eviction application and that the Appellate Authority's finding of fact that landlord bona fidely required the premises for starting his business becoming final, it must be held that on the date of application for eviction, tenant incurred liability of being evicted from the premises and that subsequent death of landlord during pendency of writ petition before the High Court filed by tenant was inconsequential.
17. The facts on hand are that though initially the petition was filed by the two petitioners i.e., father and son, requiring the premises for starting independent business of their own in garments, evidence was let in by the petitioners, the first petitioner Bhagawandas Asawa, examined himself as PW.1. Cross-examination was also conducted and at the stage of examining second witness, PW.1 died. PW.2 continued the proceedings, however, an objection was taken by the tenant for not adding necessary parties, then legal representatives of the first petitioner were brought on record. As recorded by the Rent Controller as well as the Rent Appellate Authority, from the evidence let in on behalf of the petitioners, the premises is required for the purpose of running business and even if the first petitioner dies during pendency of the rent control proceedings before the Rent Controller, the first son of the deceased first petitioner prosecuted the matter, on which basis the eviction order was passed by the Rent Controller. When the appeal was preferred by the tenant before the Rent Appellate Authority, during pendency of the appeal, the second petitioner Ashok Kumar Asawa also died, however, legal representatives of the second petitioner were also brought on record.
18. It is to be noted that this premises is required for running business. As recorded by the Rent Controller as well as the Rent Appellate Authority, legal representatives of both the deceased petitioners have come on record and second son of the first petitioner is also brought on record as legal representative of the deceased first petitioner. As far as the deceased second petitioner is concerned, his sons and daughters are also brought on record and all of them prosecuted the appeal pleading before the Appellate Authority that they are capable of running business.
19. In a case of this nature where requirement is such that the premises is sought for running business, even if there are legal representatives in the family of the deceased, who are capable of running the business, I do not think, on that premise the petitioner's requirement fades away. On the contrary, when there are legal representatives, who are none else than the wife and children of the second petitioner and the son of the first petitioner, who is brother of the deceased 2nd petitioner, have come forward and shown their inclination to run their own business, as recorded by the Rent Controller as well as the Appellate Authority, I think the requirement of the premises by these legal representatives is a bona fide and as such the Rent Controller as well as the Appellate Authority are justified in ordering eviction of the tenant.
20. Coming to the second facet of contention that in the appeal filed by the tenant against the finding recorded on the ground of bona fide requirement, the Rent Appellate Authority could not have examined the finding recorded by the Rent Controller on the question of wilful default in payment of rent by the tenant, it is to be stated that the Rent Appellate Authority was persuaded to examine the correctness of the finding on the question of wilful default in payment of rent, relying on the ratio laid down by this Court in Ranganayakulu's case (supra). It may be made clear at this stage itself, even if several grounds are urged for ordering eviction, eviction could be ordered even on a single ground. As discussed, as far as the ground of bona fide personal requirement of the premises for the purpose of running business is concerned, both the Courts below have recorded concurrent finding and such concurrent finding of facts recorded by both the Courts below requires no interference by this Court as this Court is not sitting as the First Appellate Authority over the judgment of the Rent Controller to examine the correctness of the same and as such on that ground alone the revision petition has to be dismissed.
21. Insofar as the other contention raised with regard to the interference of the Rent Appellate Authority with the finding recorded by the Rent Controller on question of default in payment of rent, as held by this Court in Ranganayakulu's case (supra), I think the view taken by the Rent Appellate Authority is proper in the circumstances of the case. It must be stated in the rent control proceedings cross-objections are not provided, however, recourse could be made to the provisions under Code of Civil Procedure under Order 41, if the provisions are not inconsistent with the scheme of the Act. Learned Counsel for the respondents-landlords stated that the appeal filed by the tenant before the Rent Appellate Authority is in the nature of first appeal and is in fact continuation of the proceedings and as such those respondents are entitled to persuade the Rent Appellate Authority to examine the correctness of a finding recorded against them by the Rent Controller even though no specific cross-objections are filed.
22. On verification of facts it is noticed that this petitioner being tenant filed an application under Section 9(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 seeking permission to deposit rent into Court. Section 9 could be invoked in the following circumstances.
"(1) Where the address of the landlord or his authorized agent is not known to the tenant, he may deposit the rent lawfully payable to the landlord in respect of the building, before such authority and in such manner as may be prescribed, and continue to deposit any rent which may subsequently become due in respect of the building before the same authority and in the same manner until the address of the landlord or his authorized agent becomes known to the tenant."
23. A reading of Section 9(1) of the Act would amply demonstrate that in the absence of tenant knowing whereabouts of landlord, he shall be entitled to file a petition seeking permission to deposit rent. The Rent Appellate Authority found fault with the Rent Controller in rejecting the plea of the petitioners that there was default in payment of rent. Petitioners have pleaded that eviction petition was filed in the year 1994 and since then no rent has been paid to the petitioner even during pendency of the eviction petition. The Rent Appellate Authority in its judgment at Para 13 observed thus:
"Admittedly the eviction petition was filed in September, 1994. Since then till this day no rent has been paid to the petitioner even during the pendency of eviction petition and pendency of appeal and there is no intimation with respect to the deposit of rent or payment of rent. Apart from this the petitioners have contended about default in terms of agreement and conditions. PW.1 in his evidence specifically stated that rent is payable every six months in advance and there is evidence of PW.1 to this effect. Ex.A.1, which contains the signature of tenant, which has been marked by PW.1, even though there is suggestion that it is forged and fabricated one, there is no evidence of tenant nor he entered into the witness box and denied his signature on Ex.A.1."
24. The Rent Appellate Authority has also recorded in Para 14 of its judgment that the landlord was examined as PW.1 and his evidence reveals that the tenant has paid the rent in January, 1988, the tenant lastly paid six months' rent in advance for the rent up to June, 1988, subsequently the tenant did not pay any rent. PW.1 stated in his evidence that he demanded for payment of arrears of rent but the tenant did not pay. The Rent Appellate Authority has also recorded that when the landlord sought eviction on the ground of wilful default in payment of rent; the onus would always be on the tenant that he has paid rent and that an unexplained default is undoubtedly a wilful default and that the tenant is expected to pay rent from month to month regularly and that irregular in payment of rent is no payment. The Rent Appellate Authority has also recorded that on analysis of the entire oral and documentary evidence on record it indicates that the tenant has intentionally avoided to pay rent and there is supine indifference on the part of the tenant in tendering rent and therefore, the tenant can be ranked as a wilful defaulter in payment of rent and liable for eviction.
25. It is to be noted here that eviction petition was filed in the month of September, 1994 giving address by the landlords. However, tenant filed R.C. No. 3 of 1989 under Section 9(1) of the Act in the year 1989. Landlords though had given their address in the eviction petition, the tenant could have made an attempt to send the rents to the landlords to the address shown by them in the eviction petition. Had he tried to send rent to the landlord's address and if there was some difficulty, it could have been different and he could have even filed a petition under Section 8 of the Act seeking permission to deposit rent into the Court to the credit of rent control proceedings. It appears that the tenant deliberately chose not to deposit rent in the pending proceedings filed by the landlord, but claims to be depositing rents in another rent control proceedings filed by him in R.C. No. 3 of 1989. As recorded by the Rent Appellate Authority it is a clear case of wilful default in payment of rent on part of the tenant and as such I agree with the finding recorded by the Rent Appellate Authority, In that view of the matter on both grounds the eviction petition filed by the landlords is to be ordered and it is accordingly ordered.
26. For the reasons recorded, the revision petition is dismissed confirming the judgment of the Rent Appellate Authority on both grounds. The petitioner-tenant shall deliver vacant possession of the demised premises to the landlords within a period of two months from today. There shall be no order as to costs.