ORDER
Vilas V. Afzulpurkar, J.
1. The present revision is preferred by the legal heirs of landlady who were arrayed as respondents in R.A. No. 268 of 2001.
2. The landlady had filed RC No. 66 of 1998 against the respondent/tenant herein for eviction on the ground that she requires the suit premises for her fourth son who is a doctor and who was arrayed as petitioner No. 6 in RC. The requirement pleaded is one for additional accommodation under Section 10(3) (c) of the A.P. Buildings (Lease, Rent & Eviction) Control Act (hereinafter called 'the Act'). The landlady died pending RC and her husband and sons and daughters were brought on record as legal representatives as respondents 2 to 13 in RC. The building in which the schedule premises is situate comprises four mulgies bearing Nos. 1-8-32/61/22/1 to 4. The schedule premises in question bears municipal No. 1-8-32/61/22/2 and the monthly rent is Rs. 550/-. The respondent/tenant is carrying on business of automobile batteries and the dimensions of the suit premises are approximately 10 feet x 12 feet. The landlady alleged that her fourth son who is the 6th petitioner in RC and his wife are both doctors and they are presently carrying on their clinic in a mulgi adjacent to the suit premises. The said mulgi which is used as a clinic has dimensions of 10 feet x 12 feet and the same is inadequate and insufficient for professional need of the 6th petitioner and his wife and therefore the suit mulgi is required by them so that the partition wall in between the two mulgies can be removed and both the said doctors have appropriate clinics and would be able to run their consultations independently.
3. The tenant filed a counter contending that the landlady has five mulgies and not four mulgies as alleged and all of them are fitted with shutters and the dimensions of suit mulgi are 10 feet x 20 feet similar to the adjacent mulgi wherein the 6th petitioner and his wife are carrying on their clinic. He also contended that the said existing accommodation is sufficient for the 6th petitioner and his wife and there is a cellar portion also which is vacant and part of the 4th floor is also vacant. He further alleged that one of the sons of the landlady has recently started business in automobile batteries and with a view to see that there is no competition for him, the present requirement is pleaded which is neither bona fide nor genuine.
4. During trial, on behalf of the landlady, P.W.1 who is the husband of the landlady was examined, besides P.W.2 who is the 6th petitioner and for whose requirement the present proceedings were instituted. PWs 3 to 5 are other three witnesses who were examined as independent witnesses who spoke of the location of the suit mulgi and also the alleged 5th mulgi is not a mulgi but is actually is an entrance to cellar portion which was fitted with a shutter. Exs.P1 to P12 were also marked which comprise affidavits, agreements, memo of understanding, photographs, exchange of legal notices and sanction plan and photographs. On the tenant's side, he examined himself as R.W.1 and also R.W.2 who is an independent witness to speak of water logging in the locality and R.W.3 is another independent witness to speak of various other tenants in the building. Exs.R1 to R8 were marked on his behalf, which are visiting card and photographs with negatives. C.W.1 is the advocate commissioner who has physically inspected the building where the suit mulgi is situate and he has submitted his report- Ex.C6 together with notices-Exs.C1 to C3 and photographs -Exs.C4 and C5. The summons taken out to R.Ws. 2 and 3 were marked as Exs.X1 and X2.
5. On the basis of the oral and documentary evidence, the learned Rent Controller upheld the additional accommodation pleaded by the landlady and directed eviction of the tenant. Aggrieved thereby, the tenant preferred an appeal before the lower appellate court being RA No. 268 of 2001 which has been allowed under the impugned order dated 23.9.2005. Hence this revision by the landlady through her legal heirs.
6. The learned Counsel for the petitioners has contended that the evidence of PWs 1 and 2 fully justifies the requirement pleaded by the landlady. He further contends that the present accommodation available with P.W.2 and his wife is so small that whenever a lady patient comes to the wife of P.W.2, he will have to stand outside the mulgi to enable his wife to examine the lady patient as there is no sufficient space available for independent consultations for both P.W.2 and his wife. The learned Counsel for the petitioners also contends that the evidence of PWs 3 to 5 is in the nature of independent evidence which establishes that the requirement pleaded by the landlady is genuine. The learned Counsel also submitted that the view taken by the lower appellate court on the interpretation of Section 10 (3) (c) of the Act that the landlady herself alone can ask for additional accommodation for her requirement and not for requirement of her son or daughter-in-law is erroneous. The learned Counsel, therefore, submits that the reliance placed by the lower appellate court on a decision of a learned single Judge of this Court reported in Fathe Singh v. Kavali Dulamma 1969 (2) APLJ (SN) 61 is clearly opposed to the law laid down by a Division Bench of this Court in CRP No. 1191 of 1970, dated 15.3.1971, which was later followed in CRP No. 731 of 1974 dated 27.1.1976 and also the Supreme Court in later decisions. The learned Counsel would also contend that the additional accommodation pleaded in this case has to be appreciated in the light of the decision of a Division Bench of this Court reported in K. Parasuramaiah v. Pokuri Lakshmamma AIR 1965 ANDHRA PRADESH 220 and further elaborated in decisions of the Supreme Court in Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by L.R.s and Ors. : [1979]2SCR1 The learned Counsel, therefore, submits that the lower appellate court has not appreciated the decisions cited before it and has wrongly interpreted the requirement of the landlady as contemplated under Section 10 (3) (c) of the Act and reversed the well considered order of the learned Rent Controller.
6. Per contra, the learned Counsel for the respondent-tenant supports the impugned order and contends that the phrase used in Section 10 (3) (c) of the Act is correctly interpreted by the lower appellate court, inasmuch as the requirement pleaded is not that of the landlady, but that of her son and his wife who are doctors, which does not fall within the requirement contemplated under Section 10 (3) (c) of the Act. He also contends that keeping in view the averments in the eviction petition and particularly paras 4 (b) and (c) which are entirely on the alleged requirement of her son and his wife who are doctors, the requirement pleaded does not fall under the parameters of Section 10 (3) (c) of the Act. He further contends that under the proviso to Section 10 (3) (c) of the Act the relative hardship must be construed even if the requirement is accepted and the eviction petition lacks any pleadings in regard to relative hardship and there has not been any issue framed during the trial and as such the said aspect having not been a focus of pleadings or evidence, serious lacunae has remained in the case set up by the landlady. He has also contended that the existence of five shutters on the ground floor proves that there are five mulgies and even assuming that the 5th one is a cellar, the tenant has shown his willingness to shift the existing business to the cellar or any other mulgi which is unreasonably refused by the landlady and her legal heirs which shows that their intention is only to get rid of the tenant. He further contends that the considerations by the learned Rent Controller in paras 35 and 36 of his order are really not focused on the hardship to the tenant but considered the advantage to the landlady and as such the relative hardship is not properly considered by the learned Rent Controller. He further contends that the learned Rent Controller has granted eviction merely on account of inconvenience to the landlady as is evident from para-36 and the same being not a criterion, equating the 'inconvenience' to 'hardship' is erroneous. He further contends that the statement that the petitioners do not have any other mulgi is not correct as there are other tenants in the other shops admittedly and as such the requirement is not bona fide and the tenant's source of livelihood and large family depends on the business in the suit mulgi ought not to be disturbed at the instance of the petitioners.
7. So far as the legal position is concerned, the interpretation of Section 10 (3) (c) of the Act, as made by the lower appellate court is based upon the ratio of the decision of a learned single Judge of this Court in Fathe Singh v. Kavali Dulamma 1969 (2) APLJ (SN) 61 (supra). In the said decision the landlady sought eviction of the tenant under Section 10 (3) (c) of the Act on the ground that her husband requires the mulgi for carrying on kirana business and it was held that the landlady cannot ask for possession of a building belonging to her for the purpose of doing business which her husband is carrying on. The correctness of the aforesaid decision was doubted by another learned single Judge of this Court and he referred the matter to a Division Bench for re-consideration. On reference, the Division Bench of this Court in CRP No. 1191 of 1970, dated 15.3.1971 considered the correctness of the said decision referred to above and interpretation of Section 10 (3) (c) of the Act and ultimately held that the expression 'for the purpose of business which is carrying on the date of application' occurring in Sub-clause (a) of clause (iii) of Sub-section (3) of Section 10 should not be considered in too narrow sense so as to disentitle the requirement of the husband of the landlady from making an application under the said provision. The wife can also require a building for the purpose of her husband for his business or trade. The said view was later followed by a learned single Judge of this Court in CRP No. 731 of 1974 dated 27.1.1976.
8. In fact, similar phrase is used under the Act while dealing with Sections 10 (3) (a) as well as 10 (3) (b) of the Act. The requirement of the landlord for the purpose of the aforesaid provisions has been interpreted so as to include the requirement of members of the family of landlady including her dependents. The interpretation of the said phrase in a statute in two different parts of the same section cannot, therefore, be interpreted in a different manner. In other words, there cannot be a wider interpretation of the same phrase for the purpose of one part of the same provision and there cannot be a narrow interpretation of the same phrase in other part of the same provision. The legislature has used a particular phrase in the Act which is intended to convey the same meaning.
9. Further similar expression in Section 13 of Haryana Urban (Control of Rent and Eviction) Act, 1973 came to be considered by the Supreme Court in a recent decision reported in A.K. Jain v. Prem Kapoor : AIR2008SC3194 . The requirement which fell for consideration in that case was for the son of landlord. In para-16 of the judgment the Supreme Court considered the said aspect,
16. We are unable to accept this submission because we see no application of the quoted provision to the facts of this case. Section 13 (3) (a) (ii) will have application only in case the eviction is sought for the son's requirement independently and separately from the landlord. In this case, the son and his wife and children are part of the landlord's family and all of them are living together. The accommodation of the son, his wife and their children is part of the landlord's personal necessity. The case of the appellant clearly falls under Section 13 (3) (a) (i) that deals with the situation where the landlord requires the tenanted premises for his own occupation and it does not attract Section 13 (3) (a) (ii) that deals with the requirements of the son of the landlord. In taking the view we are supported by the decision of this Court in Joginder Pal v. Nawal Kishore Behal : [2002]3SCR1078 . In paragraph 33 of the decision it was held and observed as follows:
Our conclusions are crystallized as under:
(i) the words 'for his own use' as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
(ii) The expression - landlord requires for 'his own use', is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal 'emanations' of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as inter-relationship and inter-dependence - economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong.
(iii) The tests to be applied are: (i) whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement? and, (ii) whether on the facts and in the circumstances of a given case actual occupation and user by a person other than the landlord would be deemed by the landlord as 'his own' occupation or user? The answer would, in its turn, depend on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as 'his own' and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward, and (iii) the intrinsic tenability of the claim. The Court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim. (iv) While casting its judicial verdict, the Court shall adopt a practical and meaningful approach guided by the realities of life. (v) In the present case, the requirement of landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord 'for his own use' within the meaning of Section 13(3)(a)(ii).
10. The parameters of considering the requirement under Section 10 (3) (c) of the Act is very elaborately laid down by a Division Bench of this Court in K. Parasuramaiah v. Pokuri Lakshmamma : AIR1965AP220 (supra) wherein it is held as follows,
The object clearly appears to be that where a portion of the same building is in the occupation of the landlord and another portion of the same building in the occupation of the tenant, the landlord can always readjust his requirements by asking the tenant to vacate the portion in his possession, if he bona fide requires that portion for his additional accommodation whether for residential or non-residential purposes as the case may be. The principle underlying Section 10(3)(c) which is a departure from the principle adopted in Section 10(3)(a) appears to us to be that a landlord should be permitted to readjust the requirements if he is occupying a portion of the same building, and it is for that reason that Section 10(3)(c) is not hedged with the restrictions found in Section 10 (3) (a), as the Legislature wanted the landlord to have a little freedom to re-adjust his needs if he is occupying the same building along with the tenants. While providing a little freedom to the landlord in such cases the Legislature was not unmindful of the hardship which is likely to be caused to the tenant, and in order therefore to balance requirements both of the landlord and the tenant, the proviso states that in such cases relative hardship of the tenant and the comparative benefit accruing to the landlord should be weighed and if the balance tilts in favour of the tenant, the petition should be rejected.
What is however clear is that while Section 10 (3) (c) is a liberal provision made for the purposes of meeting the additional requirements of the landlords in a situation falling under that clause, namely, where he is occupying the portion of the same building, the proviso makes it imperative to weigh the hardship of the tenant in such a case to obviate any injustice to the tenant which may be caused by his eviction. The proviso thus provides a safeguard against the possible abuse of the privilege which clause (c) of Sub-section (3) of Section 10 confers on the landlord, which would necessarily affect adversely the interests of the tenant for whose benefit the Act itself is made. That is why two things mentioned in the proviso have to be carefully weighed. The equitable protection which the proviso affords to the tenant particularly when he has been occupying the building since a long time compels the Court to keep in view all the relevant considerations which are necessary or desirable in such weighing of the interests of the landlord as well as the tenant.
Such a consideration it is obvious is not restricted merely to financial or physical advantages or disadvantages or any injury to the health of the person affected. It might take within itself consideration of the existence or availability of an alternative accommodation or the real efforts made by the tenant to seek an alternative building for his purposes and other such things. It is not possible, and perhaps, not desirable, to give the list of any such relevant considerations in weighing the relative hardship. It is obvious that these things cannot be weighed in golden scales. What is however required is a careful consideration of all the relevant factors in weighing the relative hardship which is likely to be caused to be tenant with the likely advantage of the landlord on the basis of the available material on record. If that is done, the exercise of the wide discretion which the proviso confers on the Rent Controller is not likely to go wrong. The proviso however should not be read as if it confers a practical immunity on the tenant from being evicted. That would destroy the very purpose of Section 10 (3) (c). Likewise the requirement of the landlord in accordance with that provision alone cannot be given absolute value, because that would mean to underestimate the value of the proviso to that section. Keeping in view therefore the purpose of this provision and the necessity of balancing the various factors each individual case has to be decided in the light of the facts and circumstances of that case.
It must also be remembered that when once the bona fide requirement of the landlord brings himself within that provision, then the onus is on the tenant to allege and prove the various factors which he wants the Rent Controller to take into account for weighing the relative hardship which may be caused to the tenant in case he is evicted, and establish that it outweighs the advantage which might accrue to the landlord. If he succeeds in establishing that, the rejection of the petition would naturally follow. In case he neither alleges nor proves the relevant factors the benefit of Section 10 (3) (c) will naturally go to the landlord. Let us, in this light, therefore see what are the facts which are stated by the tenant for the purposes of determining his grater hardship. He stated that he has been occupying the portion since 22 years and that he has established during such a long course of time his business of photography and that better accommodation may not be available.
On these grounds he wants us to determine that greater hardship would be caused to the tenant outweighing the advantage of the landlady. Merely because the tenant has been occupying the premises since a long time, it does not necessarily mean that his eviction would cause irreparable loss to him. If he has really established his reputation as a good and reliable photographer, which building he occupies and in what locality would certainly be not much material. He does not seem to have made any real attempt to find out whether any alternative accommodation for his purpose is available in the same or any other near locality. His statement in his deposition that 'My main objection to vacate is that I will not be able to get better accommodation', does not in any manner disclose that real efforts were put in to find out any other accommodation. There is no evidence in that regard. The Rent Controller obviously went wrong in accepting the ready-made conclusion given by the tenant that in case he is asked to vacate, it would be fatal to his business. No evidence warrants any such conditions. Some hardship is bound to be caused when a person is disturbed from the premises where he has been carrying on the business of photography for the last so many years apart from personal inconvenience, but this hardship which is inherent in the situation does not compare better with the disadvantage from which the landlady is suffering at the moment.
11. In view of the above settled legal position, therefore, the contention of the learned Counsel for the respondent/tenant that the lower appellate court has correctly interpreted the provisions of Section 10 (3) (c) of the Act and that the requirement of any other member of the family of landlady would not fall within the requirement of the landlady as envisaged under Section 10 (3) (c) of the Act is liable to be rejected.
12. So far as the evidence on record is concerned, P.W.1 (the husband of the landlady and father of other petitioners) states in his evidence as follows,.There are total four mulgies including the petition schedule mulgi and that my wife was owner of all the mulgies. We are residing in the first floor of the petition schedule premises.... My daughter-in-law was practicing as Gynecologist and my son is practicing in general medicine. There is no possibility of having two separate cabins. There is no possibility of consulting the patients in confidence. Therefore, the petition schedule mulgi is essentially required for my 4th son and 4th daughter-in-law. Further there is no space available for putting an examination table and for keeping the almirahs. Further, there is no space available for wash basin. The said mulgi is not sufficient for patients and their attendants. Besides the doctors only three or four chairs can be putting in the said clinic. If two or three patients along with their attendants come, they have to wait outside the clinic. Whenever my 4th daughter-in-law is consulting with lady patients, my son has to come out from the clinic.... The premises in which the clinic is now opened is not sufficient for both the doctors and they are experiencing inconvenience to run the clinic in that mulgi. If the respondent vacates the premises, I am ready to pay the monetary compensation as paid to the other tenants....
During the cross-examination P.W.1's answers to the questions on which the learned Counsel for the respondent/tenant places reliance are also extracted hereunder,.It is true that my son is Anesthetist (and) he used to attend private hospitals whenever any calls received from them.... Whenever any calls received, he attends to that hospital. My daughter-in-law only MBBS and not any specialized in any field. My son is General Practitioner and Anesthetist....
The suggestion given to P.W.1 is as follows,
It is not true to suggest that there is sufficient accommodation in the first floor and cellar for the use of my son and daughter-in-law and that I filed this petition in order to harass the respondent.
13. P.W.2 who is the doctor son and for whom the requirement is pleaded states in his evidence as follows,.The premises in which the clinic is existing is 10 x 12 feet. I am qualifying MBBS and DA. My wife is also MBBS. My wife and myself are general physicians. My wife is attending some gynecology problems. The mulgi in which there is clinic is inadequate for us and for the patients. I started the clinic in the year 1998 on holiday 'Srirama Navami'. Whenever my wife is attending gynecology patients, I have to wait outside the clinic as there is no accommodation. We are demanding the respondent to vacate the premises since 1995 and also issued legal notice. He was dodging to vacate the premises. The clinic timings are 10 to 1.00 in the morning and 5 to 8 in the evening. There is no examination table and wash basin etc. in the clinic as there is no sufficient place for providing such items.... There are no other clinics or shops for me to do our clinic business. There are no non-residential premises whether in my name or in the name of my wife in the twin cities. As the space is inadequate we require the petition schedule premises for my bona fide requirement by way of additional accommodation. The clinic and petition schedule premises are adjacent to each other. If the petitioner schedule premises is provided, we will make a doorway between two shops so as to make convenient to us. Whenever patients are more they are waiting outside the clinic as there is no accommodation inside the clinic. Whenever patients like vomiting, diarrhea, I am referring them to other private hospitals as there is no useful for clinical purposes....
In cross-examination he states as follows,.It is not true to suggest that the mulgi under my occupation is more than sufficient for me and my wife for running my clinic.... I am attending Sundari Nursing Home at Alwal and Nirmal Nursing Home at Trimulgerry. There is no specified time for any operation but usually operations will be in the morning hours.... It is not true to suggest that my wife is attending at Gandhi Hospital. But she is studying DCH in the Gandhi Hospital.... It is not true to suggest that we are attending cases at our residence. ...It is not true to suggest that I am having sufficient accommodation in first floor and that if I am willing to run the business, it is sufficient at the first floor also.
14. P.W.3 who knows P.W.2 since 1986 and who is a resident of same colony spoke about the accommodation available in the present clinic of P.W.2. During cross-examination it was suggested to him that he is a good friend of P.W.2. He also answered that there is one mulgi on the left side of the petitions schedule mulgi, but there is no mulgi on the right side of the petition schedule premises and there is a shutter meant for passage.
15. P.W.4 is another witness who knows P.W.2 as the latter had treated his father since 1986. During cross-examination he also stated that there are four mulgies attached to the house of P.W.1 in which business was carrying on. Similarly P.W.5 who is a former tenant of P.W.1 from 1985 to 1996 speaks of other tenants in the building and that he and other tenants had vacated the premises and in one of those vacated premises, P.W.2 has started the clinic. He also deposed that there is a cellar underneath the mulgies, but there are no tenants in the cellar and he further states that if the Hussainsagar tank is full, there is a leakage of water in the cellar. He says that the water seepage will be, not only in the schedule premises cellar, but also in other premises including the cellar of P.W.4. He denied the suggestion that there is any mulgi on the extreme corner of the petition schedule premises.
16. The respondent/tenant's evidence is on the following lines,.I am ready to do my business even in the cellar or in a small mulgi.... It is true in my chief examination I have stated that I am ready to do my business even in the cellar in small mulgi. I am ready to vacate this premises if I am provided accommodation in small mulgi or in cellar portion. In the schedule premises I am carrying battery charging and repairing business.
He, however, admits that 'there is possibility of connecting my premises with the premises under which P.W.2 is running clinic as there is common wall between two portions. ...It is true after filing this petition no mulgi was vacated. ...It is true that I am in occupation of one mulgi and other three mulgies are in occupation of one Chandrasekhar, tailor and Doctor Shivkumar. (P.W.2).
17. R.W.2 was examined on behalf of the tenant. He admits in his cross- examination that the buildings in the locality are facing the main road. He states that,
It is true that all the buildings are having shutters, but I do not know whether those shutters are entrance to the cellar. During this year I have seen all the houses in our area pumped out water during the time of floods.
18. R.W.3 is also another witness and who is a resident of the same locality. He was examined to say that there are five mulgies in P.W.1's building. However, he states that he did not know about the small shutter under Ex.P10 whether it leads to cellar.
19. C.W.1, who was advocate commissioner during his cross-examination has deposed to the following effect,.It is true as per the warrant, I was directed to find out whether there are five or four mulgies and whether the ground floor of any mulgi was broken recently.... When I visited the PSP house I have not seen any marking of broken. I found a fifth shutter and it was not a room there is opened to the cellar.... It is not true to suggest that there was a fifth mulgi and that I wontedly stated that it is a passage. I have not seen the entire cellar as it is beyond the scope of warrant. I have seen the cellar of fifth shutter. It is not true to suggest that fifth shutter is not opening to cellar and fifth shutter is mulgi.
20. The above evidence clearly and categorically shows that there are four mulgies and apart from P.W.2 and his wife who are occupying one mulgi, the evidence of R.W.1, the tenant himself which is extracted above shows that while the tenant is in occupation of one mulgi, there are other tenants viz., Chandrasekhar, tailor and P.W.2 who are in occupation of other three mulgies. The contention of the learned Counsel for the tenant that there are five mulgies in the building of P.W.1 is clearly incorrect as is evident from the evidence of C.W.1. It is, therefore, established from the evidence that the 5th shutter leads to the cellar which is vacant and it is not as if that the 5th shutter is a mulgi as contended by the tenant. It is well established that it is not for the tenant to dictate as to where the landlady should adjust her requirement. The line of cross-examination on the part of the tenant suggesting that P.W.2 and his wife are consulting patients on the first floor and there was a space on the first floor etc is, therefore, totally irrelevant as in the first floor the family of the landlady resides.
21. The other contention of the learned Counsel for the tenant that the requirement of P.W.2 was not pleaded originally and he pleaded by way of an amendment by inserting paras 4 (b) and (c) in the eviction petition is also not of much significance in view of the fact that the amendment relates back to the date of petition and the requirement pleaded was duly established by the evidence adduced on behalf of the landlady. P.W.2 and his wife being doctors it cannot be disputed that they need consultation and treatment to male and female patients separately and are justified in seeking that they should have separate consulting clinics so that privacy to the patients would be ensured. It is not denied by the tenant that the existing space available with P.W.2 is such that he has to stand outside the clinic whenever a lady patient consults his wife. The requirement pleaded by P.W.2, therefore, cannot be said to be unreal or unreasonable, and as such the appreciation of the said evidence by the learned Rent Controller is fully justified. The reversal of the said finding by the lower appellate Court, therefore, deserves to be interfered with, not only on the ground of erroneous interpretation of Section 10 (3) (c) of the Act, but also on the ground that the evidence on record has been ignored by the lower appellate court. The ground on which the lower appellate court has reversed the judgment of the learned Rent Controller was not raised in the counter filed by the tenant nor was it raised before the learned Rent Controller. However, the consideration of the said contention by the lower appellate court having been found to be opposed to legal position as established by decisions referred to above, I am satisfied that the judgment of the lower appellate court deserves to be set aside.
22. Further the question with regard to relative hardship is required to be considered whenever requirement under Section 10 (3) (c) of the Act is pleaded. The learned Rent Controller has considered the said aspect in paras 35 and 36 of his order, and also the oral evidence on record, as briefly extracted above, which established the hardship, but he has proceeded to describe the same as 'inconvenience'. It is no doubt true that the learned Rent Controller has used the word 'inconvenience' as synonymous with that of 'hardship', but considering the overall evidence as well as contentions as to the relative hardship having been raised before the learned Rent Controller, to my mind, the mere use of the word 'inconvenience' would not vitiate the said finding of the learned Rent Controller in paras 35 and 36 of his order. The evidence on record fully justifies the hardship of the petitioners in the event of their being denied the requirement. So far as the tenant is concerned, he is carrying on business for several years and the contention that he has a large family and it is his only source of livelihood etc. cannot be put against the requirement of the petitioners. If such a contention of the tenant is to be accepted, then it would amount to denying the requirement in every case where the tenant has large family to support and is carrying on business in rented premises which is his only source of livelihood. It is in the evidence that P.W.1 had offered compensation to the tenant, but he appears to be adamant and is insisting for an alternative place and wants to carry on business in the cellar or in some other mulgi. It is also borne out by the evidence that the cellar portion is, in fact, for parking and cannot be used for business on account of restrictions under the Municipal Corporation Act and secondly the cellar portions of the buildings in the locality get flooded whenever the Hussainsagar tank reaches its maximum level. The stand taken by the tenant is, therefore, highly abstinent and as such disallowing the genuine requirement of the petitioners would negate the very purpose of Section 10 (3) (c) of the Act. I am, therefore, satisfied that the revision petition deserves to be allowed by setting aside the order of the lower appellate court, restoring the order of the learned Rent Controller and directing eviction of the tenant.
23. Accordingly the revision petition is allowed and the order of the lower appellate court is set aside and the order of the learned Rent Controller is restored. However, there shall be no order as to costs.
24. However, to offset the hardship, if any, that may be caused to the tenant in securing alternative accommodation and vacate the premises, and in the interest of justice, I deem it just and proper to grant him time till 31st January, 2009 to vacate the suit premises subject to following conditions,
1) That the respondent/tenant shall file an undertaking before the Rent Controller within two weeks from today that he shall vacate the schedule premises by or before 31st January, 2009, pay the arrears of rent, if any, and shall continue to pay the monthly rents to the petitioners during the period of occupation and file the receipts thereof before the Rent Controller or deposit the rents to the credit of RCC before the Rent Controller; and he shall also undertake that
a) That the tenant shall not alienate, transfer or otherwise part with the possession or create any third party interest over the schedule premises, and;
b) That the tenant shall handover peaceful and vacant possession of the schedule property to the petitioners on or before 31st January, 2009;
2) That in default of fulfilling of any of the above conditions, the petitioners shall be free to approach the executing court for execution of the decree;