CIVIL REVISION PETITION No.3677 OF 2016 14-02-2017 Mohammad Abdul Raheem ..Petitioner 1.Kavuri Sarath Raj....Respondent 2.Gaddipati GFuru Prasad

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

CIVIL REVISION PETITION No.3677 OF 2016    

14-02-2017

Mohammad Abdul Raheem ..Petitioner  

1.Kavuri Sarath Raj....Respondent
2.Gaddipati GFuru Prasad

Counsel for the PETITIONER: Sri Koneti  Raja Reddy

^Counsel for the Respondents;

<Gist:

>Head Note:

?Cases referred:

  2009 (2) ALT 537
  2012(3) ALD 100
  2001 (8) SCC 561
  2006 (4) ALD 523
  2003 (6) ALD (NOC) 16


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

CIVIL REVISION PETITION No.3677 OF 2016    

O R D E R:

        This revision has been filed by petitioner challenging the
order and decree dated 30.11.2013 passed in RCC No.5 of 2009 on
the file of Rent Controller-cum-Principal Junior Civil Judge, Tenali.
        2.  The brief facts of the case are that the respondents herein
filed a petition in RCC No.5 of 2009 against the petitioner herein
under Section 10 (2)(i)(ii)(b) and Section 3(a)(i)(a) of A.P. Buildings
(Lease, Rent and Eviction) Control Act, 1960 for eviction of the
petitioner from the schedule premises and to deliver the vacant
possession to the respondents with costs.  The said petition was
allowed with costs by directing the petitioner to vacate the schedule
premises within two months from the date of the order.  Failing
which, the respondents are at liberty to evict the petitioner as per
law contemplated.  The advocate fee also fixed at Rs.2,000/-.
        3.  However, the respondents preferred RCA No.2 of 2014 filed
under Section 20 of A.P. Buildings (Lease, Rent and Eviction)
Control Act, 1960 against the order and decree dated 30.11.2013
passed in RCC No.5 of 2009 by the Rent controller-cum-Principal
Junior Civil Judge, Tenali, to set aside the findings dated
30.11.2013 in RCC No.5 of 2009 in respect of (a) willful default
aspect; (b) towards costs.  The said RCC was allowed directing the
petitioner to vacate the schedule premises within two months from
the date of the order on the ground of willful default in payment of
rent.
        4.  Being aggrieved by the aforesaid order, the petitioner filed
the present civil revision petition on the ground that the Courts
below erred in holding that the respondents require the premises
for their bonafide personal occupation, is incorrect.  From the date
of filing of the petition, adjacent portion to the portion in which the
second respondent was in occupation was vacant which could be
more convenient for the first respondent to occupy by the second
respondent and his wife.
      5.  The Courts below further erred in holding that the
petitioner was not using the premises for the purpose for which it
was let out.  The courts below failed to see that the schedule
premises was let out for computer classes for teaching as well as
partial residential purposes to take rest by the teachers does not
amount to change of use.
      6.  The Courts below further failed to see that admittedly the
premises let out is a residential portion and as such the use of the
same even for residential purpose do not give rise to eviction and
the understanding of the Courts below in this regard is incorrect.
So long as the rent as agreed is paid, the used premises as
residential premises for which it was meant do not give rise to a
cause to evict the petitioner.
        7.  Further ground is taken by the petitioner is that use of
premises even for residential purpose do not cause any damage to
the property or loss to the landlord or in any way affect the parties,
accordingly, the same is not a ground for eviction.
        8.  The case of the petitioner is that he took the schedule
property on lease in the year 1997 and later he entered into an
agreement on 05.05.2001 with the first respondent.  The petitioner
had occupied the premises on 15th May 2001 and paid Rs.15,000/-
as advance and the agreed rent, under the agreement, was
Rs.400/- per month. Later, he gradually enhanced the same from
Rs.400/- to Rs.1500/- per month at the instance of the
respondents.  The petitioner has been regularly paying the rents.
As the respondents refused to receive the rent in December 2008,
he sent the rent by way of pay order.  The reply notice got issued by
him clearly discloses the same.  Later, the respondents had
received the rents regularly.
      9.  Learned counsel appearing on behalf of the petitioner
submitted that the petitioner is running Intel Computers in the
schedule property and the brothers of the petitioner are the
teachers.  All his brothers are running the said institution in shift
duty.  Due to adamant behavior of the respondents, the strength of
the students was decreased gradually.  In fact, some of the tenants
in the complex are using their portion for commercial purpose and
others are using for residential purpose.  Originally the complex in
which the schedule property is, a part was built for residential
purpose.  By the date of issuance of notice by the respondents,
there were four empty portions in the complex.  During trial, one
portion was occupied by Veda Software for running the computer
education.  Still there are two vacant portions in the complex.  If
really, the respondents intend to occupy the additional
accommodation, they can occupy one of the portions which are still
vacant.  However, the respondents with an ulterior motive are
determined to vacate the petitioner with all false allegations for the
reasons best known to them.  The petitioner had paid an amount of
Rs.15,000/- as advance to the respondents and Rs.15,000/-
towards penalty to convert the electricity meter from Category-I to
Category-II .  He has been paying rent regularly.  The petitioner has
also using the premises as per the terms and conditions of the
understanding between the respondents and the petitioner.  Hence,
the order passed by the court below is contrary to the material
available on file.
      10.  On the other hand, learned counsel appearing on behalf
of the respondents herein submitted that the first respondent is the
absolute owner of the petition schedule property and the second
respondent, who is the grandfather of first respondent, is looking
after the affairs of first respondent on his behalf.  The schedule
property is the residential portion having electricity meter under
Category-I for domestic purpose bearing No.28294.  The petitioner
had taken the schedule property on lease for running Intel
Computers for 11 months i.e., from 01.07.2000 to 01.06.2001 from
second respondent at a monthly rent of Rs.1900/- plus Rs.100/-
towards providing water and other facilities payable by the 5th day
of every succeeding month.  The petitioner had agreed to pay the
electricity charges as service connection is under Category-I.
However, in spite of repeated requests made by the second
respondent, the petitioner delayed in obtaining permission from the
electricity department for changing the service connection under
Category-II.  Therefore, the Electricity Department got issued a
notice to the wife of the second respondent on 18.08.2000 as if
guilty of malpractice.  The petitioner did not pay the rent of
Rs.2000/- from August 2000 onwards, and accordingly, he had
committed willful default in payment of rent.  Instead of paying the
rent and vacating the premises, the petitioner got filed a suit in
O.S.No.205 of 2003 on the file of Principal Junior Civil Judge,
Tenali against the respondents and got obtained decree on
09.08.2007.  Though the petitioner had taken the schedule
property for running Intel Computers, which is for non-residential
purpose, he has been using the schedule property for domestic
purpose and residing with his family in the schedule property.
Moreover, the petitioner has also been causing waste and damage
to the schedule premises by closing the doors under lock and key
for months together.
        11.  It is also submitted that now the first respondent has
been residing at Ithanagar in other house.  Therefore, the
respondents got issued a registered legal notice on 31.12.2008 not
only demanding the petitioner for payment of arrears of rent from
August 2000 to till December 2008 and also demanded to deliver
the vacant possession of the schedule property.  The petitioner
received the said notice on 07.01.2009 and sent an envelope cover
on 13.01.2009 with a pay order for Rs.1,500/- without any
particulars.  However, without prejudice to their contention and by
not admitting that the rent per month is only Rs.1500/-.  After
sending the first pay order, the petitioner got issued a reply
through his counsel with all false allegations.  By receiving the legal
notice, the respondent had came to know that Rs.1500/- is sent by
the petitioner towards rent of December,2008.  Therefore, it is clear
that the petitioner has not only committed willful default in
payment of rent other than he has let out and the respondents are
also require the schedule property for their bonafide requirements.
Hence, the respondents prayed for eviction of the petition schedule
property.
      12.  Heard learned counsel for the parties and perused the
material on record.
      13.  The issues before the Court below and before this Court
are that:
1)      Whether the petitioner is a willful defaulter in payment of rent?
2)      Whether the respondents require the schedule premises for
their bonafide requirement?
3)      Whether the petitioner has changed the nature of using of the
schedule property from commercial to domestic purpose,
thereby he is liable to be evicted from the schedule property?

      14.  The case of the respondents is that the petitioner had
taken the schedule premises on 01.07.2000 for a period of 11
months till 01.06.2001 for a monthly rent of Rs.1900/- + Rs.100/-
towards water charges.  Since then, the petitioner has been in
possession of the schedule premises.  The petitioner has paid one
month rent after he had taken possession of the schedule property.
Thereafter, the petitioner has made default in payment of rent and
did not render any rent thereafter, thereby committed willful
default in payment of rents.
      15.  To establish the case, the second respondent was
examined as PW.1 who deposed that the first respondent is the
owner of the schedule property and managing the entire property of
the first respondent and the petitioner had entered into an
agreement with him for establishing Intel Computers in the
schedule premises and entered into an agreement on 01.07.2000
agreeing to pay the rent at Rs.1900/- and  Rs.100/- towards water
charges per month.  At the time of agreement it was agreed by the
petitioner that he shall to take steps for conversion of electricity
connection from Category I to Category II.  However, he did not
heed the words of the second respondent in spite of several
requests made by him and avoided the conversion of electricity
service connection, consequently, the electricity department had
issued a notice to the wife of the second respondent demanding for
payment of penalty.  Thereafter, the petitioner had paid penalty for
conversion of electricity connection.  The schedule property is
having eight portions and the petitioner has occupied one of the
portions and the remaining seven are let out.  The respondents also
let out one of the portions to ICICI bank.  There is a variation of
rents for the portions which are abutting to the road which are let
out for commercial purpose with that of the portions which are
situated back side to the building and which are using for
residential purpose.  Out of 8 portions, three portions are leased
out for commercial purpose and four portions are leased out for
domestic purpose and one portion is in his occupation.  The said
respondent admitted that he has been receiving the pay orders to a
tune of Rs.1500/- per month since the date of issuance of legal
notice by the first respondent as per Ex.A2.
      16.  It is pertinent to mention here that the petitioner has
filed a suit vide O.S.No.205 of 2003 and thereafter the respondent
filed suit vide O.S.No.65 of 2004.  The case of the petitioner is that
he has entered into the schedule premises in the year 1997 and
since then he is having possession of the schedule property and
running Intel Computers in it.  Subsequently, on 05.05.2004 he
has entered into a lease agreement with the respondent and the
rent was fixed at Rs.400/- per month.  Thereafter,  in four intervals
the same was enhanced from time to time with the consent of the
respondents and in the year 2008, the rent was came to Rs.1500/-
per month.  To prove his contention, the petitioner himself was
examined as RW.1 and deposed that though there are disputes
between him and respondents, he has been paying the rents
regularly as per the agreement between them.  During December,
2008 the petitioner had tendered rent to the respondents.  But, the
respondents refused to receive the rent and issued a legal notice.
Then the petitioner sent rent by way of Pay Order to a tune of
Rs.1500/- till to date he has been sending the amounts by way of
Pay Orders and the same was received by the respondents.  He
deposed innocence with regard to the existence of the lease deed
dated 01.07.2000.
      17.  As per the settled law, the initial burden is on the
respondents to prove that the petitioner is in willful defaulter in
payment of rents.  In a case reported in Venukonda Radha
Krishna Vs. Pullivarthi Ramaiah , wherein it was held that under
the law of evidence when once a particular party asserted that the
other party committed willful default in payment of the rent, the
burden is on him to prove that the tenant willfully failed to pay the
rent.
      18.  Keeping in view the facts discussed above, it is
established that the respondents filed petition for eviction of the
petitioner from the schedule premises as if he has been committing
willful default in payment of rents since August 2000 and he is in
arrears of rent to be paid to the respondents.   In that eventuality,
the entire onus is on the respondents to show that the petitioner is
in willful default in payment of rent.  To prove the same, the
respondents themselves examined as PWs.2 and 1, who deposed    
about the entering of lease agreement by them with the petitioner
on 01.07.2000 and fixing of rent at Rs.2,000/- per month.
Though there is a variation with regard to when petitioner came
into possession of the schedule property.  But from the evidence of
both parties, it is established that the schedule premises was let
out to the petitioner for running Intel Computers.
      19.  It is also an admitted fact that originally the schedule
premises is built for residential purpose but the same was let out
for commercial purpose for running a computer institution.  From
the evidence of RW1 also it is established that the petitioner was
agreed to pay the conversion charges of the electricity service
connection to be used for commercial purpose.  From the evidence
of PW.1 and RW.1 it is established that subsequently the electricity
department has got issued a notice to the wife of the second
respondent calling upon her to pay penalty for using of the service
connection for commercial purpose instead of residential purpose.
From the evidence of RW.1, it is proved that he has paid an amount
of Rs.15,000/- for penalty to the electricity department as per the
demand made by the electricity department.
      20.  In view of the facts recorded above, the Court below
opined that from the evidence of both parties and admission of
payment of penalty to the electricity department by the petitioner, it
is clear that there is a written agreement between the parties, but
either party has failed to produce the alleged lease agreements,
dated 01.07.2000.  Further as per the version of the petitioner the
said agreement was executed on 05.05.2001.  From the evidence of
both parties, it is clear that there is no passing of receipts between
them.  From the evidence of PW.1 it reveals that immediately after
the petitioner entered into the schedule premises after lapsing of
one month the electricity department had issued a notice to the
wife of the second respondent.  It is also the evidence of RW.1 that
there arose a dispute between him and the second respondent with
regard to the enhancement of rent and demanding for conversion of
the electricity connection, thereby the petitioenr had instituted a
suit vide O.S.No.205 of 2003 for permanent injunction against the
respondents and the said suit was decreed in the year 2007.
Though the petitioner had filed injunction suit against the
respondents in the year 2003, it is the contention of the
respondents that after lapse of one month of the entering of the
petitioner into the schedule property as a tenant, the petitioner had
not paid any rent, thus became willful defaulter.  But the
respondents did not got issued any notice even after filing of the
suit by the petitioner against them in the year 2003.  Though it is
an admitted fact that in the year 2004 the respondents had filed a
suit for arrears of rent vide O.S.No.64 of 2004 but prior to the filing
of that suit during the pendency of O.S.No.205 of 2003, he did not
got issued any legal notice demanding the petitioner calling him to
pay the rent due to him along with arrears of rent which is alleged
by the respondents.
      21.  It is also on record that in the suit filed by the petitioner,
he has relied on lease deed dated 05.05.2001 and basing on it, the
court has also decreed injunction against the plaintiff.  Then it is
presumed that there is a lease deed dated 05.05.2001. However,
coming to the evidence of RW.1, the lease deed dated 01.07.2000 is
in the following lines:
      The lease agreement of 01.07.2000 are counter part is with
first respondent and another counter part of document was filed by
him in the court proceedings for the suit in the year 2003. In the
lease agreement dated 01.07.2000, there is no stipulation by whom
the conversion charges has to be paid.
        22.  From the above evidence of RW.1, it appears that there is
also a lease agreement dated 01.07.2000 as alleged by the
respondents.  However, why the parties have entered into two lease
agreements within a period of ten months, the said fact has not
come on record as either party failed to file said lease agreement
before the Court.   However, on accepting the rent at the rate of
Rs.1500/- per month and on a perusal of income tax assessments
as per Ex.P8 to Ex.P14, it reveals that might be as on the date of
filing of the petition, rent for the schedule premises was Rs.1500/-
per month.  It is also an admitted fact that the suit which was filed
by the respondents vide O.S.No.64 of 2004 was dismissed for
default during the pendency of injunction suit which was filed by
the petitioner.
        23.  It is not out of place to mention here that the aforesaid
issue was not before the Court below however it came on record
from the evidence and on perusal of Ex.A1, and as per Ex.A1, the
suit filed by the petitioner was decreed in the year 2007.
      24.  As per the case of the respondents, the date of dispute is
in the month of August 2000 from where the petitioner has not
been tendering amount/rents to them.  Thus, the cause of action
arose in the month of August 2000.  From the admissions made by
PW.2 in his evidence that even after the date of disputes between
him and the petitioner as well as after passing of notice between
them, the petitioner has been paying the rents regularly itself
disclosed that not only pay order which was paid by the petitioner
after notice, the petitioner is tendering rents regularly as pleaded
by him.
      25.  In a case reported in Gisulal Gulabchand Vs D.
Harinarayana , wherein it was held by this Court in para No.18 by
referring the case of Jametti Satyanarayana, Nimmagadda Krishna
Hari and anothers case and Mohd Khajas case , wherein it was
held that Procedure prescribed under Section 8 of the Act is not
mandatory in nature but only directory.  However, the court observed
that it is bound by the judgment of the Apex Court in M. Bhaskars
case, which was not placed before the Court in the above referred
decisions of this Court.
      26.  The petitioner has adduced evidence of himself as RW.1
and also examined RW.2 to RW.4, who are the lecturers of his
institution showing that the petitioner is paying rents without any
default from the date of entering into lease agreement in the year
2001 till date of issuance of notice in the December, 2008.
However, the petitioner has failed to show that the amounts which
are rendered by the respondents is not original rent amount as
alleged by him.  Except the evidence of PWs.1 and 2, who are owner
and Manager of the property, they did not adduce any evidence of
the other tenants, though it was came on the record from the
evidence of PW.1 that schedule property contains 8 portions and he
had given three portions for residential purpose and 4 portions for
commercial purpose and he has occupied one of the portions.
Form the above discussion, it is established that the petitioner has
been a willful defaulter in payment of rent.
      27.  On the issue of whether the respondents required the
schedule premises for their bonafide requirement?  The second
respondent is an old aged person and the grand parents of the first
respondent are effected with old age ailments and the continuous
service of respondent is necessary for which he has to occupy the
schedule property, which is convenient for him to reside.
      28.  In a case reported in Siddalingamma and another Vs.
Mamtha Shenoy , wherein the Honble Apex Court has considered  
the parameters of bonafide requirement and it was held that
bonafide requirement must be the outcome of sincere, honest
desire in contradistinction with a mere pretext for evicting the
tenant on the part of the landlord claiming to occupy the premises
or for any member of the family.  Thus, the bonafide means a good
faith and genuine cause for seeking possession of the schedule
property which is in good faith without fraud or deceit.
      29.  It is established from the evidence of PW.1 as well as
pleadings, since the beginning, the respondents claiming the
schedule premises for their bonafide occupation, as if the grand
parents of the first respondent are old in age and they are suffering
with old age ailments and he is the only person to see the welfare of
his parents, thereby residing near the schedule premises is
necessary to look after his grand parents.  Moreover, from the
evidence of RW.1, it is established that the second respondent is an
old aged person and both grand parents are residing in first floor of
the schedule property and they require the services of this
respondent being a grandson.
      30. It is settled preposition of law that it is the landlord to
decide which portion is convenient for him to reside in the schedule
property.  However, the tenant cannot dictate to the landlord to
occupy a particular portion.  Tthe judgment rendered by this Court
reported in Dunna Venkata Rao Vs. Mootha Ramakoti , is
relevant in the present case, wherein it was held that it is the
choice of the landlord to choose his premises for the purpose of
accommodating his own business.  In the light of the same, the
contradictory stand if any taken in pleading and proof can not
come in the way of the landlord getting an order of eviction on the
ground of bonafide personal requirement.
      31.  In a case reported in Narayana Rao Patalay (died) by
LrsVs. Naresh Thappor  , wherein this Court held that landlord
has a right to choose any premises of his choice.
      32.  Though there are some other vacant portions in the first
floor as the building contains eight portions, the respondents could
choose other portion instead of the schedule premises.  However,
keeping in view the judgments cited above, the landlord has a
choice to choose a place for his residence or bonafide necessity to
run the business.
      33.  Coming back to the case in hand, the petitioner has
changed nature of using of the schedule property from commercial
to domestic.  The schedule property is in occupation of the
petitioner as a tenant to run computer institution, which is for
commercial purpose.  The said fact also came on record from the
evidence of PW.1, PW.2 and RW.1 that though the schedule  
property was constructed for domestic purpose, however, it was let
out for commercial purpose with a clause that the petitioner has to
meet the charges for conversion of electricity service connection
from Category-I to Category-II.   It is also on record from the
evidence of both parties that in August 2000 electricity department
has got issued a notice to the wife of the second respondent to pay
penalty and the same was paid by the petitioner, who had agreed
the same in view of the agreement arose in between them.
Moreover, Ex.P15-certified copy of meter reading with regard to the
electricity consumption of the schedule premises from January
2006 to April 2012, reveals that the petitioner was not consuming
the electricity though he claimed to be running computer centre in
the schedule premises.
      34.  Moreover, to prove the aforesaid fact, an Advocate
Commissioner was appointed who visited the schedule property
and filed his report under Ex.C2 whereby stated that apart form the
office room and class room, in the bed room there are household
articles.  He also found gas stove and other utensils which are used
in kitchen in the verandah outside the schedule property which
includes the Washing Machine, Deewan Cot, Sofa Set, Single cot
etc.  It is further mentioned in the report that except one computer
which is in the office room none of the computers are working.  It
was further noticed by the Advocate Commissioner that it was
reported by the petitioner that the other six computers are not
working in view of the not functioning of the stabilizer.
      35. The court below, on a perusal of entire contents of the
Advocate Commissioner, it is opined that there is no running of
classes in the schedule property.  Though, there is evidence from
the deposition of RWs.1, 2 to 4, who are lecturers in the Intel
Computers, however failed to file any single piece of document with
regard to the running of classes; attendance register of the
students; how many batches are running and what are the number
of students in each batch; account books and the information with
regard to the examinations conducted by the said institute etc.
      36.  It is established from the evidence of RW.1 that since
2002, there is no good running of the business in the schedule
property.  Since then, the petitioner is continued in the schedule
property as if he is running Intel Computers in the schedule
property.  But in Ex.C2, it is very clear that the petitioner is using
the schedule property for domestic purpose.  Thus, it is clear that
the petitioner has deviated from the agreement by using the
schedule premises for domestic purpose apart from commercial 
purpose.
      37.  In view of the above discussion, I find no perversity or
illegality in the impugned order and decree dated 30.11.2013
passed in RCC No.5 of 2009 by the Rent Controller-cum-Principal
Junior Civil Judge, Tenali.
      38.  Finding no merit in the instant petition and the same is
accordingly dismissed.  There shall be no order as to costs.
      Miscellaneous Petitions, if any pending, shall stand closed.
______________________________    
JUSTICE SURESH KUMAR KAIT.      
Date: 14-02 -2017

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