A.P.Rent control Act - Sec. 8 , 10 , 16 etc., - mere holding property in non-commercial zone can not be considered as a suitable premises for expansion -mere holding joint interest in joint family property does not bar the landlord to evict the premises for bonafide occupation - When landlord refused to receive the rents - the only remedy to deposit the same in court by filing a petition under act - else it can not be considered as proper tendering of rents -Revision court can interfere when the finding of lower court suffers from inherent defects =
Mere mentioning amount and signature with out any particulars can not be considered as a receipt of payment for particular month of rents =
Both the Courts below came to the conclusion that Ex.B18
is receipt issued by the revision petitioner/landlord for payment of rent for
September and October, 1997.
14. I have perused Ex.B18.
No where in Ex.B18 it is found that the revision
petitioner/landlord received the rents from the respondent/tenant.
Ex.B18 only
contains the amount and signature of the revision petitioner.
When it is the
case of the respondent/tenant that it is a temporary receipt, Ex.B18 should
contain an endorsement that the revision petitioner/landlord received the amount
towards rent for the months of September and October, 1997.
But no such endorsement is there on Ex.B18.
It is also the case of the revision petitioner
that when printed official stamped receipts were issued for the earlier period,
why the same were not issued for the months of September and October, 1997.
Since Ex.B18 does not contain endorsement that the revision petitioner/landlord
received the rent from the respondent/tenant for the months of September and
October, 1997, it cannot be said that it is a receipt for the payment of rent of
the months September and October, 1997.
Mere sending amount to the Land lord towards rent is not sufficient - he has to deposit it by filing petition under sec. 8 (2) A.P.Rent control Act - subsequent deposit can not wipe out the earlier default committed by the tenant =
It
is for the respondent/tenant to deposit the rent with the revision
petitioner/landlord and if the revision petitioner/landlord refused to receive
the rents, he has to issue notice under Section 8(2) of the Act, under which
rent should be deposited. If still the revision petitioner/landlord failed to
specify the bank account, the respondent/tenant can send the rent by money
order. But in the present case, the case of the respondent/tenant is that the
revision petitioner did not collect the rents, that is why he send the same
through money order, which shows that the respondent/tenant has committed
default as he has not followed the procedure envisaged under Section 8(2) of the
Act. The respondent/tenant sent a registered notice dated 29.12.1997 calling
upon the revision petitioner to intimate his bank account to enable the
respondent to deposit the rents. Ex.B13 is the returned cover bearing the
endorsement 'refused returned to sendor", but still, the respondent/tenant has
not followed the procedure contemplated under Section 8(2) of the Act. As per
rule 16 of the Rules, the respondent/tenant committed willful default in payment
of rents for the months of September and October, 1997. It is also to be seen
that to cover up the same, the respondent/tenant has filed petition for
depositing of the rent subsequently and he deposited the rents, which does not
wipe out the willful default committed by the tenant of payment of rents. Even
otherwise, the respondent/tenant who examined himself as R.W.1 stated that rents
were not paid in the month of September and October, 1997 and that admission was
also not considered by the Courts below properly.
Mere holding joint family properties does not come as exclusive properties of Land-Lord and much more when partition suit was pending - Mere holding property in some other area other than business center does not mean holding of other non-commercial properties by Land-Lord =
He has categorically denied in respect of each item stating that he is
not owning any other non residential premises and the said premises is owned by
his brother.
He also stated that the suit premises is located at
Siddiamberbazar, which is a business locality and any business will flourish in
that locality. Therefore, according to the revision petitioner, the locality of
the suit premises is more suited for his business.
He also stated that suit
for partition is filed among the family members and the same was partly decreed
and the appeal filed against the same shows that there is dispute between the
family members in respect of the properties.
The respondent/tenant also has not
shown that the revision petitioner specifically owns any other non-residential
premises in his individual property. It has to be seen that even if joint
family members owns any non-residential premises and the revision petitioner is
member of that joint family, that will not disentitle the revision petitioner
from seeking eviction, unless the revision petitioner/landlord individually owns
any other non-residential premises. Admittedly, suit for partition is partly
decreed and appeal against the same is pending and all the properties are
subject matter of partition suit, which shows that the revision petitioner is
not owning exclusively any other non-residential premises. As the revision
petitioner is not exclusively owning any of the non-residential premises, he is
entitled for eviction of the respondent/tenant on that ground. P.W.1 states
that he is owning other non-residential properties. Owning properties being one
of the members of joint family does disentitle the revision petitioner for
eviction of the respondent/tenant because owning property through joint family,
he cannot get exclusive possession and he cannot be termed as exclusive owner of
the premises. Therefore, the revision petitioner/landlord requires the schedule
property for his own personal occupation for starting his own business.
Mere statement that the Land lord alone can not file eviction petition does not amount to denial of Title =
the Rent Controller has held that the denial
title by the respondent/tenant is not bonafide, but the appellate Court
reversed the said finding. Since the pleading of the respondent/tenant is that
the revision petitioner alone cannot file the eviction petition, there was no
denial of title as such. In view of the same, it cannot be said that the
respondent/tenant has denied the title of the revision petitioner. The above
said finding of the appellate Court is confirmed.
When the findings of lower courts suffers from inherent defects as ex.A 18 - revision can court interfere =
In all these judgments, it was held that in exercise of revisional
jurisdiction under Section 22 of the Act, High Court cannot reappreciate
evidence."
The facts in the present case on hand are different with those of the
facts in the cited decisions relied on by the learned counsel for the
respondent, hence, they have no application to the present case.
21. The findings of the Courts below suffers from inherent defects as Ex.A18
is not correctly interpreted and are based on irrelevant material and rejection
of eviction petition is also based on surmises and conjunctures and same is
liable to be interfered with in this revision petition.
=
Accordingly, the Civil Revision Petition is allowed. The
respondent/tenant is directed to vacate the schedule premises within six (6)
months from today, on condition of his paying arrears of rent, if any, and also
an undertaking that he shall vacate the premises within six (6) months by paying
the rent for the said period. There shall be no order as to costs. As a sequel
thereto, miscellaneous petitions, if any, pending in this Civil Revision
Petition, shall stand closed.
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 5837 OF 2008
Date:30-10-2013
Narsing Prasad....Petitioner/Landlord
Dinesh Mohanlal Pardhanani.... Respondent/tenant
Counsel for the Petitioner: Sri K.Laxman Rao
Counsel for the Respondent: Smt. Manjari S.Ganu
>HEAD NOTE:
?Cases referred
1 (1998) 6 Supreme Court Cases 431
2 (2003) 1 Supreme Court Cases 672
3 2007 (3) ALD 149
4 (2009) 9 Supreme Court Cases 752
5 2012 (3) ALD 132
6 1992 (1) ALT 526
7 2008 (4) ALD 586
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 5837 OF 2008
Date: 30-10-2013
ORDER:
This Civil Revision Petition is filed aggrieved by the order dated
24.09.2008 in R.A. No.327 of 2006 passed by the Chief Judge, City Small Causes
Court, Hyderabad, confirming the order dated 07.11.2006 in RC No.112 of 1998
passed by the IV Additional Rent Controller, Hyderabad, wherein the petition
filed by the revision petitioner for eviction of the respondent was dismissed.
2. The revision petitioner/landlord filed R.C.No.112 of 1998 on the file of
the IV Additional Rent Controller, Hyderabad for eviction of the
respondent/tenant from the suit premises on the ground of willful default in
payment of rents and also for bona fide personal requirement.
3. The case of the revision petitioner is that he is the landlord of premises
bearing No.15-9-619, situated at Siddiamber Bazar, Hyderabad, and the respondent
is his tenant in respect of the aforesaid tenanted mulgi on a monthly rent of
Rs.750/-.
The respondent paid rent up to August, 1997 and he paid rent on
12.09.1997. Thereafter, he stopped payment of rent and committed willful
default in payment of rent from September, 1997 to till February, 1998. It is
also stated that the revision petitioner/landlord required the suit premises for
his personal occupation as he intends to start his own business in grains which
he has been running in the name and style of Tarachand and Narsing Prasad, in a
tenanted premises.
The owner of the said premises had filed a suit in
O.S.No.4113 of 1988 on the file of the VII Assistant Judge, City Civil Court,
Hyderabad, and the same was decreed and aggrieved by the said Judgment and
Decree, the revision petitioner preferred appeal in AS No.147 of 1996 and the
same was also dismissed.
4. The respondent filed counter affidavit stating that the father of the
respondent by name Mohanlal H.Pardhanani established M/s.Hyderabad Automobiles
in the year 1969 and he expired on 09.08.1995. Thereafter, the respondent has
been running the said business in the said premises since then. The revision
petitioner collected Rs.1500/- from the respondent on 03.10.1997 towards rent
for the months of September and October 1997 and issued a temporary receipt
promising to send official stamped receipt later, but he failed to send the
same. Respondent sent a letter dated 25.11.1997 requesting the revision
petitioner to send official stamped receipt but the said letter was returned
with an endorsement stating that 'party continuously absent for seven days'.
Revision petitioner did not collect the rent for the month of November, 1997.
Respondent sent the rent for the said month on 05.12.1997 by money order. It
was returned on 13.12.1997. Once again, the respondent sent money order for
Rs.750/- on 15.12.1997, it was also returned on 26.12.1997. Respondent sent
registered notice dated 29.12.1997 calling upon the revision petitioner to
intimate his bank account details to enable him to deposit the rents for the
shop.
The said notice was returned by postal authorities with an endorsement
"party refused".
Once again respondent sent two money orders one for Rs.750/-
towards rent for the month of December, 1997, and for Rs.1500/- for the months
of January and February, 1998, the said money orders were also returned as the
revision petitioner refused to receive the same.
In the circumstances,
respondent filed RC No.71 of 1998 on the file of I Additional Rent Controller,
Hyderabad seeking for permission to deposit the rents into the Court while so,
revision petitioner filed petition for eviction. It is also denied that the
respondent did not pay rents from September, 1997. It is also stated that the
petitioner is having right, title and interest in the property bearing municipal
No.15-1-423, Feelkhana, Hyderabad. He acquired the said property during the
pendency of the case demolished the old building and constructed a new building
on the site of the old building consisting of three mulgies facing main road and
rear side residential building. After construction of the same, he let out one
mulgi to Smt. Bijal N. Shah under rental deed dated 05.12.2000 and said tenant
is carrying on business in the said mulgi under the name and style of M/s.Paras
Auto Springs. The said tenant vacated the said mulgi in the year 2002 and
handed over vacant possession of the same to the revision petitioner.
Thereafter, the revision petitioner let out the said premises to a tenant who is
carrying on business in the said premises under the name and style of Patel
Trading Company. In one mulgi, revision petitioner himself is carrying on
business of Food grains and he kept the third mulgi vacant without any use from
the date of construction. In these circumstances, the revision petitioner is
not entitled to maintain the eviction petition seeking eviction of the
respondent.
5. Therefore, revision petitioner alone cannot maintain the eviction
petition since he is only one of the co-owners. The revision petitioner got
right, title and interest in the residential as well as non-residential
properties bearing Municipal Nos.15-9-574/1, Siddiamber Bazar, Hyderabad, 15-1-
423, Feel Khana, Hyderabad, 5-5-1042, Chudi Bazar, Hyderabad, 14-6-131, 14-6-
132, 14-6-142 to 144, Chudi Bazar, Hyderabad, 14-6-637, 14-6-168, 15-4-309, 14-
6-381, 14-6-382 and 14-8-36 all situated at Chudi Bazar and 14-11-784, Nai
basti, Hyderabad. Non-residential buildings fell vacant from time to time and
have been let out to new tenants on higher rents and huge pagdi.
6. The revision petitioner filed rejoinder stating that mere filing of the
petition to deposit the rent by the respondent does not absolve him from the
liability of payment of rent at proper time. The respondent is a chronic
willful defaulter in payment of monthly rents. The respondent deliberately and
intentionally denied the title of the revision petitioner.
Therefore, the
respondent is liable to be evicted on the ground of denial of title.
The
revision petitioner denied the contents in the amended para 6(a) of the counter.
Revision petitioner also denied that during the pendency of the case, the
revision petitioner demolished the old building and constructed a new building
consisting of 3 mulgies.
It is also denied that the revision petitioner let out
the mulgi to Smt Bijal N Shah on 05.12.2000. It is also denied that the said
tenant vacated the premises and that the revision petitioner let out to one
Patel Trading Company. It is also denied that he is running the business of
food grains. It is also stated that the area which the revision petitioner is
said to have own the properties is non commercial area and the same is not
suitable for running business. It is also stated that the tenants who are in
occupation of the property using the same for godown purposes. It is stated
that the respondent is fully aware of the fact that the Feelkhana locality and
Chudi Bazar locality are totally non commercial areas, whereas Siddiamber Bazar
area is a totally commercial locality and any business which will be run in the
said area will certainly flourish and prosper and also that the area of
Siddiamber Bazar is very much famous for wholesale and retail business. It is
settled law that a tenant cannot dictate terms to the landlord for his personal
needs and the landlord is the best person to judge his own requirement basing on
the suitability and convenience and more especially the commercial activities in
the locality. It is also denied that the revision petitioner is carrying on the
food grain business and the third mulgi has been kept vacant. The respondent
being the tenant of the revision petitioner, malafidely denied his title. The
property bearing No.15-9-574/1 is on the first floor and the same is meant for
residential purpose only and it has no access from the main road and it is a
purely residential premises so also 15-1-423 and the same is used by the
revision petitioner for his residential purpose. The revision petitioner is not
concerned with the property bearing No.5-5-1042, Gosha Mahal, Hyderabad, which
belongs to his younger brother. The properties bearing Nos.14-6-131, 132, 142 to
144, situated at Chudi Bazar, Hyderabad, are the residential properties,
consisting of small rooms, which are being used for residential purposes by the
tenants. It is also denied that the revision petitioner is the owner and
possessor of property bearing No.14-6-637. The requirement of the revision
petitioner is genuine, bonafide and pressing. He has also filed the documentary
evidence to establish the fact that he was running the business in the rental
premises. The owner of the said mulgi had filed the suit for ejectment against
the petitioner which was decreed and the said decree had been confirmed by the
Supreme Court and ultimately the revision petitioner had been evicted from the
premises No.15-9-608, Siddamber Bazar, Hyderabad.
7. The revision petitioner examined himself as P.W.1 and got marked Exs.A1
to A.5. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked
Exs.B1 to B22 and Exs.X1 to X8 were marked through R.W.2.
8. The 4th Additional Rent Controller, Hyderabad, dismissed the eviction
petition by order dated 07.11.2006. Against which, the revision petitioner
filed R.A.No.327 of 2006, which was also dismissed by order dated 24.09.2008.
Against the same, the present Civil Revision Petition is preferred.
9. Sri K.Laxman Rao, learned counsel appearing for the revision petitioner
contends that the respondent/tenant committed willful default in payment of
rents from September, 1997 to February, 1998. Though, the respondent/tenant
admitted, the said aspect was not properly appreciated by both the Courts below.
The admission of the respondent/tenant clearly goes to show that he has not paid
rents for September and October, 1997 and only paid on 25.11.1997. He would
further contend that basing on Ex.B18, receipt dated 03.10.1997, both the Courts
below found that the rents for September and October, 1997 have been paid.
However, Ex.B18 only mentioned about amount and it does not show whether it is a
receipt or temporary receipt. Both the Courts below misinterpreted Ex.B18 that
it is a temporary receipt, but no where it is mentioned it as a receipt. As
such, both the Courts below erroneously misinterpreted Ex.B18. When once,
Ex.B18 is not taken into account, there is no payment of rent for the September
and October, 1997. He would further contend that the respondent in his counter
affidavit stated that the revision petitioner has not collected rents for the
month of November, 1997, as such, the respondent/tenant sent the rent for the
said month on 05.12.1997 by money order. He further contends that the revision
petitioner used to issue rental receipts for earlier months after receiving
rents and he has not issued receipt for the disputed period as the
respondent/tenant not paid rent for the said period. The respondent/tenant has
not stated that the revision petitioner/landlord refused to receive the rents
for the month of November, 1997, but only stated that the revision petitioner
did not collect rents for the month of November, 1997. If the revision
petitioner has refused to receive the rents, then the respondent could have
issued notice under Section 8(2) of the Andhra Pradesh Buildings (Lease, Rent &
Eviction) Control Act, 1960, (for brevity 'the Act) for depositing of the rents
into the Bank account of the revision petitioner and he cannot straight away
send the same by money order. If still revision petitioner/landlord refused to
furnish the Savings Bank account, it does not permit the respondent/tenant to
remit the rent by way of money order. But in the present case, the
respondent/tenant has not followed the procedure envisaged under Section 8(2) of
the Act before sending the money order. If he follows the procedure as
contemplated under Section 8(2) of the Act, then only he can file petition for
depositing of rents. He would further contend that both the Courts below have
not taken into account the rejoinder filed by the revision petitioner to the
amended counter affidavit filed by the respondent/tenant, wherein he
categorically denied that he is owning any other non-residential premises. He
has also stated that there was litigation in the family, as such, suit for
partition is filed. It is also denied that he is having any other non-
residential premises. He would further contend that some properties belonging
to the brother of the revision petitioner and this aspect was not properly
considered by both the Courts below. He also contended that the revision
petitioner/landlord was evicted by his landlord in which he was carrying on
business by virtue of Exs.A1 and A.2. As such, the revision petitioner
bonafidely requires the suit premises for starting his own business. The
revision petitioner has clearly explained in the rejoinder that he is not owning
non-residential premises for carrying out the business. It is also stated in
the rejoinder that the suit premises is located at Siddiamber Bazar, is a
commercial wherein any type of business will flourish, if established. Learned
counsel further contended that the joint family owning other non-residential
premises, therefore, it cannot be said that the revision petitioner, who is
member of joint family, owning other non-residential premises and on that ground
the revision petitioner/landlord cannot be denied eviction. All these aspects
have not been taken into account by both the Courts below.
10. In support of his contention, he relied on the following decisions:
V.Radhakrishnan v. S.N.Loganatha Mudaliar1, Lingala Kondala Rao v.
Vootukuri Narayana Rao2, Munnalal (died) by LR and others v. Englarg Pershad3,
Gulab Chand Pukhraj v. R.B.Jinender Raj and another4,
11. On the other hand, Smt. Manjari S.Ganu, learned counsel appearing on
behalf of the respondent/tenant contended that the revision petitioner/landlord
owned other non-residential premises. She also contended that the revision
petitioner suppressed owning of other non-residential premises and on this
ground also, the revision petition is liable to be dismissed. She also
contended that by virtue of Ex.B18, rents for the months of September and
October, 1997 were paid, but the landlord issued temporary receipt by way of
Ex.B18. Both the Courts, after considering the oral and documentary evidence
came to the conclusion that the rents for the months of September and October,
1997 were paid. She also contends that for subsequent period also, the
respondent/tenant sent the rents by money order, which was refused by the
revision petitioner/landlord and as such, the petition was filed by the
respondent/tenant before the Rent Controller for depositing of rents and
accordingly rents were deposited. As such, there is no default much less
willful default on the part of the respondent/tenant in payment of rents to the
revision petitioner/landlord. She also contends that the revision
petitioner/landlord has taken inconsistent pleas while having admitted that he
owns other non-residential premises, he is not entitled for seeking eviction.
She also contends that the scope of revisional jurisdiction under Section 22 of
the Act is limited, as such, the concurrent finding of fact arrived at by both
the Courts below cannot be disturbed by appreciating the evidence. In support
of her contentions, she relied on the following decisions: Kunji Bai G. Chugani
v. Fashions, Secunderabad5, Ballani Ranganayakulu and others v. Mattupalli
Nageswara Rao6 and Mohammed Abdul Rahman and others v. B.Manorama and another7.
12. In view of the above rival contentions, the points that arise for
consideration in this petition are as follows:
1) Whether the respondent/tenant is not guilty of willful default in payment of
rents?
2) Whether the revision petitioner's requirement of the petition schedule
property for his personal occupation is bonafide?
3) Whether the respondent denied the title of the revision petitioner during the
course of the trial of the case?
13. Point No.1:
As far as this point is concerned, the case of the revision petitioner is
that the respondent/tenant committed default in payment of rents for the months
of September, 1997 to February, 1998.
Whereas the case of the respondent/tenant
is that he paid the rent for September and October, 1997 to the revision
petitioner and that the revision petitioner issued temporary receipt i.e.,
Ex.B18 and he has not issued printed receipt.
The respondent/tenant sent letter
dated 25.11.1997 asking the petitioner to issue the official stamped receipt and
inspite of issuance of that letter, the revision petitioner has not issued
official stamped receipt.
In view of Ex.B18, the rent for the months of
September and October, 1997 is deemed to have been paid, hence, there is no
default on the part of the respondent/tenant, as alleged by the revision
petitioner/landlord.
Both the Courts below came to the conclusion that Ex.B18
is receipt issued by the revision petitioner/landlord for payment of rent for
September and October, 1997.
14. I have perused Ex.B18.
No where in Ex.B18 it is found that the revision
petitioner/landlord received the rents from the respondent/tenant.
Ex.B18 only
contains the amount and signature of the revision petitioner.
When it is the
case of the respondent/tenant that it is a temporary receipt, Ex.B18 should
contain an endorsement that the revision petitioner/landlord received the amount
towards rent for the months of September and October, 1997.
But no such endorsement is there on Ex.B18.
It is also the case of the revision petitioner
that when printed official stamped receipts were issued for the earlier period,
why the same were not issued for the months of September and October, 1997.
Since Ex.B18 does not contain endorsement that the revision petitioner/landlord
received the rent from the respondent/tenant for the months of September and
October, 1997, it cannot be said that it is a receipt for the payment of rent of
the months September and October, 1997.
The appellate Court held that the
letter sent under certificate of posting must be presumed to be true, which is
erroneous.
Exs.B7 and B12 were sent under certificate of posting and cannot be
presumed that the same amounts to service of notice, as procedure for service of
notice as envisaged under Rules 5(4) and Rule 16 of the Andhra Pradesh Buildings
(Lease, Rent and Eviction) Control Rules, 1961, (for short 'the Rules') is not
followed for tendering rents by the respondent/tenant, the same amounts to
willful default.
Both the Courts below have not properly appreciated Ex.B18 and
also have not taken into account the rejoinder filed by the revision petitioner,
I deem it fit and proper to exercise the revision jurisdiction under Section 22
of the Act and correct the illegality.
15. Both the Courts below erroneously misinterpreted Ex.B18 and came to the
conclusion that it is a temporary receipt, through
which the respondent/tenant paid the rents to the revision petitioner for the
months September and October, 1997.
Further plea of the respondent/tenant that
the revision petitioner/landlord did not collect the rent for the month of
November, 1997 and thereafter respondent/tenant sent the rent for the said month
by way of money order on 05.12.1997, which was returned on 13.12.1997. Ex.B10
is the money order coupon dated 05.12.1997. It is further pleaded by the
respondent that he again sent the said rent through money order on 15.12.1997,
but it was returned on 26.12.1997. Ex.B11 money order is evidencing this fact.
It is not the case of the respondent/tenant that the revision
petitioner/landlord refused the rent for the month of November, 1997. It is the
case of the respondent/tenant that the revision petitioner did not collect the
rent. When the respondent filed official receipts for the payments up to
August, 1997, after payment of rents, it is not known on what basis the
respondent/tenant stated that revision petitioner did not collect the rents. It
is for the respondent/tenant to deposit the rent with the revision
petitioner/landlord and if the revision petitioner/landlord refused to receive
the rents, he has to issue notice under Section 8(2) of the Act, under which
rent should be deposited. If still the revision petitioner/landlord failed to
specify the bank account, the respondent/tenant can send the rent by money
order. But in the present case, the case of the respondent/tenant is that the
revision petitioner did not collect the rents, that is why he send the same
through money order, which shows that the respondent/tenant has committed
default as he has not followed the procedure envisaged under Section 8(2) of the
Act. The respondent/tenant sent a registered notice dated 29.12.1997 calling
upon the revision petitioner to intimate his bank account to enable the
respondent to deposit the rents. Ex.B13 is the returned cover bearing the
endorsement 'refused returned to sendor", but still, the respondent/tenant has
not followed the procedure contemplated under Section 8(2) of the Act. As per
rule 16 of the Rules, the respondent/tenant committed willful default in payment
of rents for the months of September and October, 1997. It is also to be seen
that to cover up the same, the respondent/tenant has filed petition for
depositing of the rent subsequently and he deposited the rents, which does not
wipe out the willful default committed by the tenant of payment of rents. Even
otherwise, the respondent/tenant who examined himself as R.W.1 stated that rents
were not paid in the month of September and October, 1997 and that admission was
also not considered by the Courts below properly.
16. In view of the above discussion, I hold that the both the Courts below
misconstrued the documentary evidence relied on and came to the wrong conclusion
that the respondent/tenant has not committed willful default in payment of rents
for the months September and October, 1997.
17. Point No.2:
As far as the bonafide requirement of the petition schedule property for
personal occupation of revision petitioner/landlord is concerned, it is the
specific case of the revision petitioner/landlord that he is intending to start
his own business in grains which he is already running under the name and style,
Tarachand Narasing Pershad, in a tenanted premises and as the owner of the said
premises has filed a suit for ejectment in OS.No.4113 of 1988 and the same was
decreed against him under Ex.A1, certified copy of the judgment and against the
same, he filed AS No.147/1996, which was also dismissed under Ex.A2, certified
copy of the judgment in the appeal.
The appellate Court in paragraph 16 while
answering point No.2, where the requirement of suit schedule property for his
bonafide personal occupation, held that by virtue of Exs.A1 and A2, revision
petitioner was directed to vacate from the tenanted premises, which he has been
carrying on business of good grains in the name and style of Tarachand Narasing
Pershad in the premises bearing No.15-9-608. The fact of the revision
petitioner carrying on business is not denied. The fact of revision petitioner
was evicted from the said premises is also not denied by virtue of Exs.A1 and
A.2. The revision petitioner was carrying on business in food grains in a
rented premises and he was evicted from the same. Therefore, he requires
premises for starting his own business. Both the Courts held that since the
petitioner is having another non-residential premises and he suppressed the said
fact in the eviction petition, as such, he is not entitled for relief. When the
respondent/tenant filed amended counter stating that the revision petitioner
owns other non-residential premises in the city, that aspect was suppressed by
the revision petitioner. The revision petitioner filed rejoinder denying the
same. He has categorically denied in respect of each item stating that he is
not owning any other non residential premises and the said premises is owned by
his brother.
He also stated that the suit premises is located at
Siddiamberbazar, which is a business locality and any business will flourish in
that locality. Therefore, according to the revision petitioner, the locality of
the suit premises is more suited for his business.
He also stated that suit
for partition is filed among the family members and the same was partly decreed
and the appeal filed against the same shows that there is dispute between the
family members in respect of the properties.
The respondent/tenant also has not
shown that the revision petitioner specifically owns any other non-residential
premises in his individual property. It has to be seen that even if joint
family members owns any non-residential premises and the revision petitioner is
member of that joint family, that will not disentitle the revision petitioner
from seeking eviction, unless the revision petitioner/landlord individually owns
any other non-residential premises. Admittedly, suit for partition is partly
decreed and appeal against the same is pending and all the properties are
subject matter of partition suit, which shows that the revision petitioner is
not owning exclusively any other non-residential premises. As the revision
petitioner is not exclusively owning any of the non-residential premises, he is
entitled for eviction of the respondent/tenant on that ground. P.W.1 states
that he is owning other non-residential properties. Owning properties being one
of the members of joint family does disentitle the revision petitioner for
eviction of the respondent/tenant because owning property through joint family,
he cannot get exclusive possession and he cannot be termed as exclusive owner of
the premises. Therefore, the revision petitioner/landlord requires the schedule
property for his own personal occupation for starting his own business.
18. Point No.3.
As far as the denial of title of the revision petitioner/landlord by the
respondent/tenant is concerned, the Rent Controller has held that the denial
title by the respondent/tenant is not bonafide, but the appellate Court
reversed the said finding. Since the pleading of the respondent/tenant is that
the revision petitioner alone cannot file the eviction petition, there was no
denial of title as such. In view of the same, it cannot be said that the
respondent/tenant has denied the title of the revision petitioner. The above
said finding of the appellate Court is confirmed.
19. a) In V.Radhakrishnan v. S.N.Loganatha Mudaliar (supra), it is observed as
follows:
12. On a plain reading of Section 10(3)(a)(iii) of the Act,
it appears
to us that the legislature intended that a landlord seeking eviction of the
tenant could be disentitled from claiming possession of the non-residential
premises where he requires those premises for his own use, if he is occupying a
non-residential building of his own. Similarly, the landlord would also be
disentitled from claiming possession of non-residential premises for the benefit
of a member of his family, if that member of the family was in occupation of a
non-residential building of his own. Any other interpretation of this section
would not only be doing violence to the plain language of the section but would
result in absurdity inasmuch as the benefit of the provision would stand denied
to the family members of the landlord, who do not occupy any premises of their
own and for whose benefit eviction is sought, if the landlord himself is in
occupation of a non-residential premises of his own. The fact that the landlord,
who seeks eviction for the benefit of a member of his family, is himself
occupying a building of his own, cannot operate as a bar to the landlord seeking
eviction for the benefit of a member of his family, who does not occupy any
premises of his own.
Thus, it follows and we hold that the law laid down in
Jagannatha Chettiar case1 is not the correct law. The learned Single Judge in
Chettiar case1 did not notice, let alone consider the three earlier judgments in
Indian Plywood3; K. Chettiar4 and Annamalai and Co.5 In our opinion, the
judgments in Kannan case2, Indian Plywood Manufacturing Co. case3, K. Chettiar
case4 and Annamalai and Co. case5 lay down the correct law, which we hereby
approve."
b) In Lingala Kondala Rao v. Vootukuri Narayana Rao (supra), it is
observed as follows:
10. We hold that joint Hindu family premises in which joint family business
is being run and wherein the landlord too has a share and interest and juridical
possession on account of being a member of the family would not disentitle the
landlord from seeking recovery of possession from the tenant of a non-
residential building exclusively owned by him subject to his satisfying other
requirements of Section 10(3)(a)(iii).
c) In Gulab Chand Pukhraj v. R.B.Jinender Raj and another, (supra) it
is observed as follows
"12. In J. Pandu v. R. Narsubai6 this Court held that a landlord,
notwithstanding his occupation of a non-residential building, can still seek
eviction of his tenant from his business premises if the landlord is able to
satisfy that the non-residential building occupied by him is not sufficient and
suitable for the purpose of expansion of his business or for the purpose of a
new business which he bona fide proposes to commence or that the shifting of his
business has become inevitable. This Court has taken the same view in Saroj
Kumar Das (Dr.) v. Arjun Prasad Jogani7.
14. Obviously, there is clear conflict of opinions of this Court in the
aforementioned cases.
In Boorgu Jagadeshwaraiah & Sons3 a three-Judge Bench of
this Court examined all these three decisions given in D. Devaji8, Saroj Kumar
Das (Dr.)7 and J. Pandu6 and came to the conclusion that the aspects of quality,
size and suitability of the building have been totally put out of consideration.
Non-consideration of the quality, size and suitability of the building would be
to frustrate the purposes of the Act.
d) In Munnalal (died) by LR and others v. Englarg Pershad (supra), it is
held as under:
"9. Rule 5(1) of the Rules lays down the procedure, when a tenant is
desirous of depositing the rent under sub-section (5) of Section 8, or 9 or
Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1960 (for short 'the Act'). Rule 5(4) of the Rules lays down the procedure
for service of a notice of deposit and specifies that it shall be done in
accordance with Rule 16 of the Rules.
10. Rule 16 of the Rules reads as under:
16.(1) All notices under the Act issued by the Controller or the
appellate authority and all orders passed by the Controller or the appellate
authority if not pronounced in open Court shall be served on the person
concerned;
(a) personally by delivering or tendering to him the notice or
order; or
(b) if such person is not found, by leaving the notice or order at
his last known place of abode or business of by giving or tendering the same to
some adult member of his family; or
(c ) if such person does not reside in the area within the
jurisdiction of the Controller or the appellate authority, by sending the same
to him by registered post, with acknowledgment due; or
(d)........... (not relevant for the present controversy).
13. Since the tendering of rents was not communicated by way of a
notice in terms of Rules 5(4) and 16 of the Rules, the appellate Court was right
in coming to a conclusion that it was a case of willful default."
The above judgments cited by learned counsel for petitioner are applicable
to the facts of the case.
20. Learned counsel appearing for respondent/tenant relied on the
following decisions:
a) Kunji Bai G. Chugani v. Fashions, Secunderabad (supra), it is held as
follows:
20. Each case has to be decided on its own facts and circumstances. Where
in a case the landlord is in possession of several non-residential premises and
is entitled for their possession and when he is seeking eviction of a tenant
from a non-residential premises it appears that the landlord must plead that the
other non-residential premises held by him are not suitable in size, location
etc., for the business he proposes to start or for the purpose of a business
which he is carrying on, on the date of application."
In Ballani Ranganayakulu and others v. Mattupalli Nageswara Rao (supra) it
is observed as follows:
"6. Thus on general principles a party who has an order in its favour is
entitled to show that the order is justified on some ground which was decided
against it in the Court below. The said general principle is not inconsistent
with Section 20 of the Rent Control Act for there is no provision for filing
cross-objections."
In Mohammed Abdul Rahman and others v. B.Manorama and another (supra), it
is observed that:
"5. It is now well settled that jurisdiction of High Court under Section
22 of the Act is revisional jurisdiction. Though the power is a little wider
than revisional jurisdiction, it is not equal to appellate jurisdiction. A
limited scrutiny is to see that order passed by appellate authority is not
vitiated by illegality, irregularity or impropriety. Mere possibility of a
different conclusion in background facts does not enable High Court to reverse
finding of appellate authority. A reference may be made to Mudigonda Chandra
Mouli Sastry v Bhimanepalli Bikshalu, 1999 (5) ALD 101 (SC) = (1999) 7 SCC 66 =
AIR 1999 SC 3095, N.Prabhakar Rao v. J.R.Ramesh Kumar, 2002 (1) ALD 127 (SC) =
(2002) 1 SCC 176 = AIR 2002 SC 95, Harshavardhan Chokkani v. Bhupendra N.Patel,
(2002) 3 SCC 626 = AIR 2002 SC 1373= 2002 AIR SCW 1207 and Champa Lal v Shaik
Najmuddin, (2002) 5 SCC 20 = AIR 2002 SC 2076. Except last cited authority
other three decisions were rendered by Apex Court while interpreting Section 22
of the Act.
In all these judgments, it was held that in exercise of revisional
jurisdiction under Section 22 of the Act, High Court cannot reappreciate
evidence."
The facts in the present case on hand are different with those of the
facts in the cited decisions relied on by the learned counsel for the
respondent, hence, they have no application to the present case.
21. The findings of the Courts below suffers from inherent defects as Ex.A18
is not correctly interpreted and are based on irrelevant material and rejection
of eviction petition is also based on surmises and conjunctures and same is
liable to be interfered with in this revision petition.
22. In view of the above discussion and the law laid down by this Court as
well as Apex Court as discussed above, I am of the opinion that the orders
passed by the Courts below are liable to be set aside and the same are hereby
set aside and the eviction petition is ordered by allowing this Civil Revision
Petition.
Accordingly, the Civil Revision Petition is allowed. The
respondent/tenant is directed to vacate the schedule premises within six (6)
months from today, on condition of his paying arrears of rent, if any, and also
an undertaking that he shall vacate the premises within six (6) months by paying
the rent for the said period. There shall be no order as to costs. As a sequel
thereto, miscellaneous petitions, if any, pending in this Civil Revision
Petition, shall stand closed.
_______________________
A.RAJASHEKER REDDY, J
October, 30, 2013.
Mere mentioning amount and signature with out any particulars can not be considered as a receipt of payment for particular month of rents =
Both the Courts below came to the conclusion that Ex.B18
is receipt issued by the revision petitioner/landlord for payment of rent for
September and October, 1997.
14. I have perused Ex.B18.
No where in Ex.B18 it is found that the revision
petitioner/landlord received the rents from the respondent/tenant.
Ex.B18 only
contains the amount and signature of the revision petitioner.
When it is the
case of the respondent/tenant that it is a temporary receipt, Ex.B18 should
contain an endorsement that the revision petitioner/landlord received the amount
towards rent for the months of September and October, 1997.
But no such endorsement is there on Ex.B18.
It is also the case of the revision petitioner
that when printed official stamped receipts were issued for the earlier period,
why the same were not issued for the months of September and October, 1997.
Since Ex.B18 does not contain endorsement that the revision petitioner/landlord
received the rent from the respondent/tenant for the months of September and
October, 1997, it cannot be said that it is a receipt for the payment of rent of
the months September and October, 1997.
Mere sending amount to the Land lord towards rent is not sufficient - he has to deposit it by filing petition under sec. 8 (2) A.P.Rent control Act - subsequent deposit can not wipe out the earlier default committed by the tenant =
It
is for the respondent/tenant to deposit the rent with the revision
petitioner/landlord and if the revision petitioner/landlord refused to receive
the rents, he has to issue notice under Section 8(2) of the Act, under which
rent should be deposited. If still the revision petitioner/landlord failed to
specify the bank account, the respondent/tenant can send the rent by money
order. But in the present case, the case of the respondent/tenant is that the
revision petitioner did not collect the rents, that is why he send the same
through money order, which shows that the respondent/tenant has committed
default as he has not followed the procedure envisaged under Section 8(2) of the
Act. The respondent/tenant sent a registered notice dated 29.12.1997 calling
upon the revision petitioner to intimate his bank account to enable the
respondent to deposit the rents. Ex.B13 is the returned cover bearing the
endorsement 'refused returned to sendor", but still, the respondent/tenant has
not followed the procedure contemplated under Section 8(2) of the Act. As per
rule 16 of the Rules, the respondent/tenant committed willful default in payment
of rents for the months of September and October, 1997. It is also to be seen
that to cover up the same, the respondent/tenant has filed petition for
depositing of the rent subsequently and he deposited the rents, which does not
wipe out the willful default committed by the tenant of payment of rents. Even
otherwise, the respondent/tenant who examined himself as R.W.1 stated that rents
were not paid in the month of September and October, 1997 and that admission was
also not considered by the Courts below properly.
Mere holding joint family properties does not come as exclusive properties of Land-Lord and much more when partition suit was pending - Mere holding property in some other area other than business center does not mean holding of other non-commercial properties by Land-Lord =
He has categorically denied in respect of each item stating that he is
not owning any other non residential premises and the said premises is owned by
his brother.
He also stated that the suit premises is located at
Siddiamberbazar, which is a business locality and any business will flourish in
that locality. Therefore, according to the revision petitioner, the locality of
the suit premises is more suited for his business.
He also stated that suit
for partition is filed among the family members and the same was partly decreed
and the appeal filed against the same shows that there is dispute between the
family members in respect of the properties.
The respondent/tenant also has not
shown that the revision petitioner specifically owns any other non-residential
premises in his individual property. It has to be seen that even if joint
family members owns any non-residential premises and the revision petitioner is
member of that joint family, that will not disentitle the revision petitioner
from seeking eviction, unless the revision petitioner/landlord individually owns
any other non-residential premises. Admittedly, suit for partition is partly
decreed and appeal against the same is pending and all the properties are
subject matter of partition suit, which shows that the revision petitioner is
not owning exclusively any other non-residential premises. As the revision
petitioner is not exclusively owning any of the non-residential premises, he is
entitled for eviction of the respondent/tenant on that ground. P.W.1 states
that he is owning other non-residential properties. Owning properties being one
of the members of joint family does disentitle the revision petitioner for
eviction of the respondent/tenant because owning property through joint family,
he cannot get exclusive possession and he cannot be termed as exclusive owner of
the premises. Therefore, the revision petitioner/landlord requires the schedule
property for his own personal occupation for starting his own business.
Mere statement that the Land lord alone can not file eviction petition does not amount to denial of Title =
the Rent Controller has held that the denial
title by the respondent/tenant is not bonafide, but the appellate Court
reversed the said finding. Since the pleading of the respondent/tenant is that
the revision petitioner alone cannot file the eviction petition, there was no
denial of title as such. In view of the same, it cannot be said that the
respondent/tenant has denied the title of the revision petitioner. The above
said finding of the appellate Court is confirmed.
When the findings of lower courts suffers from inherent defects as ex.A 18 - revision can court interfere =
In all these judgments, it was held that in exercise of revisional
jurisdiction under Section 22 of the Act, High Court cannot reappreciate
evidence."
The facts in the present case on hand are different with those of the
facts in the cited decisions relied on by the learned counsel for the
respondent, hence, they have no application to the present case.
21. The findings of the Courts below suffers from inherent defects as Ex.A18
is not correctly interpreted and are based on irrelevant material and rejection
of eviction petition is also based on surmises and conjunctures and same is
liable to be interfered with in this revision petition.
=
Accordingly, the Civil Revision Petition is allowed. The
respondent/tenant is directed to vacate the schedule premises within six (6)
months from today, on condition of his paying arrears of rent, if any, and also
an undertaking that he shall vacate the premises within six (6) months by paying
the rent for the said period. There shall be no order as to costs. As a sequel
thereto, miscellaneous petitions, if any, pending in this Civil Revision
Petition, shall stand closed.
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 5837 OF 2008
Date:30-10-2013
Narsing Prasad....Petitioner/Landlord
Dinesh Mohanlal Pardhanani.... Respondent/tenant
Counsel for the Petitioner: Sri K.Laxman Rao
Counsel for the Respondent: Smt. Manjari S.Ganu
>HEAD NOTE:
?Cases referred
1 (1998) 6 Supreme Court Cases 431
2 (2003) 1 Supreme Court Cases 672
3 2007 (3) ALD 149
4 (2009) 9 Supreme Court Cases 752
5 2012 (3) ALD 132
6 1992 (1) ALT 526
7 2008 (4) ALD 586
HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
C.R.P. No. 5837 OF 2008
Date: 30-10-2013
ORDER:
This Civil Revision Petition is filed aggrieved by the order dated
24.09.2008 in R.A. No.327 of 2006 passed by the Chief Judge, City Small Causes
Court, Hyderabad, confirming the order dated 07.11.2006 in RC No.112 of 1998
passed by the IV Additional Rent Controller, Hyderabad, wherein the petition
filed by the revision petitioner for eviction of the respondent was dismissed.
2. The revision petitioner/landlord filed R.C.No.112 of 1998 on the file of
the IV Additional Rent Controller, Hyderabad for eviction of the
respondent/tenant from the suit premises on the ground of willful default in
payment of rents and also for bona fide personal requirement.
3. The case of the revision petitioner is that he is the landlord of premises
bearing No.15-9-619, situated at Siddiamber Bazar, Hyderabad, and the respondent
is his tenant in respect of the aforesaid tenanted mulgi on a monthly rent of
Rs.750/-.
The respondent paid rent up to August, 1997 and he paid rent on
12.09.1997. Thereafter, he stopped payment of rent and committed willful
default in payment of rent from September, 1997 to till February, 1998. It is
also stated that the revision petitioner/landlord required the suit premises for
his personal occupation as he intends to start his own business in grains which
he has been running in the name and style of Tarachand and Narsing Prasad, in a
tenanted premises.
The owner of the said premises had filed a suit in
O.S.No.4113 of 1988 on the file of the VII Assistant Judge, City Civil Court,
Hyderabad, and the same was decreed and aggrieved by the said Judgment and
Decree, the revision petitioner preferred appeal in AS No.147 of 1996 and the
same was also dismissed.
4. The respondent filed counter affidavit stating that the father of the
respondent by name Mohanlal H.Pardhanani established M/s.Hyderabad Automobiles
in the year 1969 and he expired on 09.08.1995. Thereafter, the respondent has
been running the said business in the said premises since then. The revision
petitioner collected Rs.1500/- from the respondent on 03.10.1997 towards rent
for the months of September and October 1997 and issued a temporary receipt
promising to send official stamped receipt later, but he failed to send the
same. Respondent sent a letter dated 25.11.1997 requesting the revision
petitioner to send official stamped receipt but the said letter was returned
with an endorsement stating that 'party continuously absent for seven days'.
Revision petitioner did not collect the rent for the month of November, 1997.
Respondent sent the rent for the said month on 05.12.1997 by money order. It
was returned on 13.12.1997. Once again, the respondent sent money order for
Rs.750/- on 15.12.1997, it was also returned on 26.12.1997. Respondent sent
registered notice dated 29.12.1997 calling upon the revision petitioner to
intimate his bank account details to enable him to deposit the rents for the
shop.
The said notice was returned by postal authorities with an endorsement
"party refused".
Once again respondent sent two money orders one for Rs.750/-
towards rent for the month of December, 1997, and for Rs.1500/- for the months
of January and February, 1998, the said money orders were also returned as the
revision petitioner refused to receive the same.
In the circumstances,
respondent filed RC No.71 of 1998 on the file of I Additional Rent Controller,
Hyderabad seeking for permission to deposit the rents into the Court while so,
revision petitioner filed petition for eviction. It is also denied that the
respondent did not pay rents from September, 1997. It is also stated that the
petitioner is having right, title and interest in the property bearing municipal
No.15-1-423, Feelkhana, Hyderabad. He acquired the said property during the
pendency of the case demolished the old building and constructed a new building
on the site of the old building consisting of three mulgies facing main road and
rear side residential building. After construction of the same, he let out one
mulgi to Smt. Bijal N. Shah under rental deed dated 05.12.2000 and said tenant
is carrying on business in the said mulgi under the name and style of M/s.Paras
Auto Springs. The said tenant vacated the said mulgi in the year 2002 and
handed over vacant possession of the same to the revision petitioner.
Thereafter, the revision petitioner let out the said premises to a tenant who is
carrying on business in the said premises under the name and style of Patel
Trading Company. In one mulgi, revision petitioner himself is carrying on
business of Food grains and he kept the third mulgi vacant without any use from
the date of construction. In these circumstances, the revision petitioner is
not entitled to maintain the eviction petition seeking eviction of the
respondent.
5. Therefore, revision petitioner alone cannot maintain the eviction
petition since he is only one of the co-owners. The revision petitioner got
right, title and interest in the residential as well as non-residential
properties bearing Municipal Nos.15-9-574/1, Siddiamber Bazar, Hyderabad, 15-1-
423, Feel Khana, Hyderabad, 5-5-1042, Chudi Bazar, Hyderabad, 14-6-131, 14-6-
132, 14-6-142 to 144, Chudi Bazar, Hyderabad, 14-6-637, 14-6-168, 15-4-309, 14-
6-381, 14-6-382 and 14-8-36 all situated at Chudi Bazar and 14-11-784, Nai
basti, Hyderabad. Non-residential buildings fell vacant from time to time and
have been let out to new tenants on higher rents and huge pagdi.
6. The revision petitioner filed rejoinder stating that mere filing of the
petition to deposit the rent by the respondent does not absolve him from the
liability of payment of rent at proper time. The respondent is a chronic
willful defaulter in payment of monthly rents. The respondent deliberately and
intentionally denied the title of the revision petitioner.
Therefore, the
respondent is liable to be evicted on the ground of denial of title.
The
revision petitioner denied the contents in the amended para 6(a) of the counter.
Revision petitioner also denied that during the pendency of the case, the
revision petitioner demolished the old building and constructed a new building
consisting of 3 mulgies.
It is also denied that the revision petitioner let out
the mulgi to Smt Bijal N Shah on 05.12.2000. It is also denied that the said
tenant vacated the premises and that the revision petitioner let out to one
Patel Trading Company. It is also denied that he is running the business of
food grains. It is also stated that the area which the revision petitioner is
said to have own the properties is non commercial area and the same is not
suitable for running business. It is also stated that the tenants who are in
occupation of the property using the same for godown purposes. It is stated
that the respondent is fully aware of the fact that the Feelkhana locality and
Chudi Bazar locality are totally non commercial areas, whereas Siddiamber Bazar
area is a totally commercial locality and any business which will be run in the
said area will certainly flourish and prosper and also that the area of
Siddiamber Bazar is very much famous for wholesale and retail business. It is
settled law that a tenant cannot dictate terms to the landlord for his personal
needs and the landlord is the best person to judge his own requirement basing on
the suitability and convenience and more especially the commercial activities in
the locality. It is also denied that the revision petitioner is carrying on the
food grain business and the third mulgi has been kept vacant. The respondent
being the tenant of the revision petitioner, malafidely denied his title. The
property bearing No.15-9-574/1 is on the first floor and the same is meant for
residential purpose only and it has no access from the main road and it is a
purely residential premises so also 15-1-423 and the same is used by the
revision petitioner for his residential purpose. The revision petitioner is not
concerned with the property bearing No.5-5-1042, Gosha Mahal, Hyderabad, which
belongs to his younger brother. The properties bearing Nos.14-6-131, 132, 142 to
144, situated at Chudi Bazar, Hyderabad, are the residential properties,
consisting of small rooms, which are being used for residential purposes by the
tenants. It is also denied that the revision petitioner is the owner and
possessor of property bearing No.14-6-637. The requirement of the revision
petitioner is genuine, bonafide and pressing. He has also filed the documentary
evidence to establish the fact that he was running the business in the rental
premises. The owner of the said mulgi had filed the suit for ejectment against
the petitioner which was decreed and the said decree had been confirmed by the
Supreme Court and ultimately the revision petitioner had been evicted from the
premises No.15-9-608, Siddamber Bazar, Hyderabad.
7. The revision petitioner examined himself as P.W.1 and got marked Exs.A1
to A.5. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked
Exs.B1 to B22 and Exs.X1 to X8 were marked through R.W.2.
8. The 4th Additional Rent Controller, Hyderabad, dismissed the eviction
petition by order dated 07.11.2006. Against which, the revision petitioner
filed R.A.No.327 of 2006, which was also dismissed by order dated 24.09.2008.
Against the same, the present Civil Revision Petition is preferred.
9. Sri K.Laxman Rao, learned counsel appearing for the revision petitioner
contends that the respondent/tenant committed willful default in payment of
rents from September, 1997 to February, 1998. Though, the respondent/tenant
admitted, the said aspect was not properly appreciated by both the Courts below.
The admission of the respondent/tenant clearly goes to show that he has not paid
rents for September and October, 1997 and only paid on 25.11.1997. He would
further contend that basing on Ex.B18, receipt dated 03.10.1997, both the Courts
below found that the rents for September and October, 1997 have been paid.
However, Ex.B18 only mentioned about amount and it does not show whether it is a
receipt or temporary receipt. Both the Courts below misinterpreted Ex.B18 that
it is a temporary receipt, but no where it is mentioned it as a receipt. As
such, both the Courts below erroneously misinterpreted Ex.B18. When once,
Ex.B18 is not taken into account, there is no payment of rent for the September
and October, 1997. He would further contend that the respondent in his counter
affidavit stated that the revision petitioner has not collected rents for the
month of November, 1997, as such, the respondent/tenant sent the rent for the
said month on 05.12.1997 by money order. He further contends that the revision
petitioner used to issue rental receipts for earlier months after receiving
rents and he has not issued receipt for the disputed period as the
respondent/tenant not paid rent for the said period. The respondent/tenant has
not stated that the revision petitioner/landlord refused to receive the rents
for the month of November, 1997, but only stated that the revision petitioner
did not collect rents for the month of November, 1997. If the revision
petitioner has refused to receive the rents, then the respondent could have
issued notice under Section 8(2) of the Andhra Pradesh Buildings (Lease, Rent &
Eviction) Control Act, 1960, (for brevity 'the Act) for depositing of the rents
into the Bank account of the revision petitioner and he cannot straight away
send the same by money order. If still revision petitioner/landlord refused to
furnish the Savings Bank account, it does not permit the respondent/tenant to
remit the rent by way of money order. But in the present case, the
respondent/tenant has not followed the procedure envisaged under Section 8(2) of
the Act before sending the money order. If he follows the procedure as
contemplated under Section 8(2) of the Act, then only he can file petition for
depositing of rents. He would further contend that both the Courts below have
not taken into account the rejoinder filed by the revision petitioner to the
amended counter affidavit filed by the respondent/tenant, wherein he
categorically denied that he is owning any other non-residential premises. He
has also stated that there was litigation in the family, as such, suit for
partition is filed. It is also denied that he is having any other non-
residential premises. He would further contend that some properties belonging
to the brother of the revision petitioner and this aspect was not properly
considered by both the Courts below. He also contended that the revision
petitioner/landlord was evicted by his landlord in which he was carrying on
business by virtue of Exs.A1 and A.2. As such, the revision petitioner
bonafidely requires the suit premises for starting his own business. The
revision petitioner has clearly explained in the rejoinder that he is not owning
non-residential premises for carrying out the business. It is also stated in
the rejoinder that the suit premises is located at Siddiamber Bazar, is a
commercial wherein any type of business will flourish, if established. Learned
counsel further contended that the joint family owning other non-residential
premises, therefore, it cannot be said that the revision petitioner, who is
member of joint family, owning other non-residential premises and on that ground
the revision petitioner/landlord cannot be denied eviction. All these aspects
have not been taken into account by both the Courts below.
10. In support of his contention, he relied on the following decisions:
V.Radhakrishnan v. S.N.Loganatha Mudaliar1, Lingala Kondala Rao v.
Vootukuri Narayana Rao2, Munnalal (died) by LR and others v. Englarg Pershad3,
Gulab Chand Pukhraj v. R.B.Jinender Raj and another4,
11. On the other hand, Smt. Manjari S.Ganu, learned counsel appearing on
behalf of the respondent/tenant contended that the revision petitioner/landlord
owned other non-residential premises. She also contended that the revision
petitioner suppressed owning of other non-residential premises and on this
ground also, the revision petition is liable to be dismissed. She also
contended that by virtue of Ex.B18, rents for the months of September and
October, 1997 were paid, but the landlord issued temporary receipt by way of
Ex.B18. Both the Courts, after considering the oral and documentary evidence
came to the conclusion that the rents for the months of September and October,
1997 were paid. She also contends that for subsequent period also, the
respondent/tenant sent the rents by money order, which was refused by the
revision petitioner/landlord and as such, the petition was filed by the
respondent/tenant before the Rent Controller for depositing of rents and
accordingly rents were deposited. As such, there is no default much less
willful default on the part of the respondent/tenant in payment of rents to the
revision petitioner/landlord. She also contends that the revision
petitioner/landlord has taken inconsistent pleas while having admitted that he
owns other non-residential premises, he is not entitled for seeking eviction.
She also contends that the scope of revisional jurisdiction under Section 22 of
the Act is limited, as such, the concurrent finding of fact arrived at by both
the Courts below cannot be disturbed by appreciating the evidence. In support
of her contentions, she relied on the following decisions: Kunji Bai G. Chugani
v. Fashions, Secunderabad5, Ballani Ranganayakulu and others v. Mattupalli
Nageswara Rao6 and Mohammed Abdul Rahman and others v. B.Manorama and another7.
12. In view of the above rival contentions, the points that arise for
consideration in this petition are as follows:
1) Whether the respondent/tenant is not guilty of willful default in payment of
rents?
2) Whether the revision petitioner's requirement of the petition schedule
property for his personal occupation is bonafide?
3) Whether the respondent denied the title of the revision petitioner during the
course of the trial of the case?
13. Point No.1:
As far as this point is concerned, the case of the revision petitioner is
that the respondent/tenant committed default in payment of rents for the months
of September, 1997 to February, 1998.
Whereas the case of the respondent/tenant
is that he paid the rent for September and October, 1997 to the revision
petitioner and that the revision petitioner issued temporary receipt i.e.,
Ex.B18 and he has not issued printed receipt.
The respondent/tenant sent letter
dated 25.11.1997 asking the petitioner to issue the official stamped receipt and
inspite of issuance of that letter, the revision petitioner has not issued
official stamped receipt.
In view of Ex.B18, the rent for the months of
September and October, 1997 is deemed to have been paid, hence, there is no
default on the part of the respondent/tenant, as alleged by the revision
petitioner/landlord.
Both the Courts below came to the conclusion that Ex.B18
is receipt issued by the revision petitioner/landlord for payment of rent for
September and October, 1997.
14. I have perused Ex.B18.
No where in Ex.B18 it is found that the revision
petitioner/landlord received the rents from the respondent/tenant.
Ex.B18 only
contains the amount and signature of the revision petitioner.
When it is the
case of the respondent/tenant that it is a temporary receipt, Ex.B18 should
contain an endorsement that the revision petitioner/landlord received the amount
towards rent for the months of September and October, 1997.
But no such endorsement is there on Ex.B18.
It is also the case of the revision petitioner
that when printed official stamped receipts were issued for the earlier period,
why the same were not issued for the months of September and October, 1997.
Since Ex.B18 does not contain endorsement that the revision petitioner/landlord
received the rent from the respondent/tenant for the months of September and
October, 1997, it cannot be said that it is a receipt for the payment of rent of
the months September and October, 1997.
The appellate Court held that the
letter sent under certificate of posting must be presumed to be true, which is
erroneous.
Exs.B7 and B12 were sent under certificate of posting and cannot be
presumed that the same amounts to service of notice, as procedure for service of
notice as envisaged under Rules 5(4) and Rule 16 of the Andhra Pradesh Buildings
(Lease, Rent and Eviction) Control Rules, 1961, (for short 'the Rules') is not
followed for tendering rents by the respondent/tenant, the same amounts to
willful default.
Both the Courts below have not properly appreciated Ex.B18 and
also have not taken into account the rejoinder filed by the revision petitioner,
I deem it fit and proper to exercise the revision jurisdiction under Section 22
of the Act and correct the illegality.
15. Both the Courts below erroneously misinterpreted Ex.B18 and came to the
conclusion that it is a temporary receipt, through
which the respondent/tenant paid the rents to the revision petitioner for the
months September and October, 1997.
Further plea of the respondent/tenant that
the revision petitioner/landlord did not collect the rent for the month of
November, 1997 and thereafter respondent/tenant sent the rent for the said month
by way of money order on 05.12.1997, which was returned on 13.12.1997. Ex.B10
is the money order coupon dated 05.12.1997. It is further pleaded by the
respondent that he again sent the said rent through money order on 15.12.1997,
but it was returned on 26.12.1997. Ex.B11 money order is evidencing this fact.
It is not the case of the respondent/tenant that the revision
petitioner/landlord refused the rent for the month of November, 1997. It is the
case of the respondent/tenant that the revision petitioner did not collect the
rent. When the respondent filed official receipts for the payments up to
August, 1997, after payment of rents, it is not known on what basis the
respondent/tenant stated that revision petitioner did not collect the rents. It
is for the respondent/tenant to deposit the rent with the revision
petitioner/landlord and if the revision petitioner/landlord refused to receive
the rents, he has to issue notice under Section 8(2) of the Act, under which
rent should be deposited. If still the revision petitioner/landlord failed to
specify the bank account, the respondent/tenant can send the rent by money
order. But in the present case, the case of the respondent/tenant is that the
revision petitioner did not collect the rents, that is why he send the same
through money order, which shows that the respondent/tenant has committed
default as he has not followed the procedure envisaged under Section 8(2) of the
Act. The respondent/tenant sent a registered notice dated 29.12.1997 calling
upon the revision petitioner to intimate his bank account to enable the
respondent to deposit the rents. Ex.B13 is the returned cover bearing the
endorsement 'refused returned to sendor", but still, the respondent/tenant has
not followed the procedure contemplated under Section 8(2) of the Act. As per
rule 16 of the Rules, the respondent/tenant committed willful default in payment
of rents for the months of September and October, 1997. It is also to be seen
that to cover up the same, the respondent/tenant has filed petition for
depositing of the rent subsequently and he deposited the rents, which does not
wipe out the willful default committed by the tenant of payment of rents. Even
otherwise, the respondent/tenant who examined himself as R.W.1 stated that rents
were not paid in the month of September and October, 1997 and that admission was
also not considered by the Courts below properly.
16. In view of the above discussion, I hold that the both the Courts below
misconstrued the documentary evidence relied on and came to the wrong conclusion
that the respondent/tenant has not committed willful default in payment of rents
for the months September and October, 1997.
17. Point No.2:
As far as the bonafide requirement of the petition schedule property for
personal occupation of revision petitioner/landlord is concerned, it is the
specific case of the revision petitioner/landlord that he is intending to start
his own business in grains which he is already running under the name and style,
Tarachand Narasing Pershad, in a tenanted premises and as the owner of the said
premises has filed a suit for ejectment in OS.No.4113 of 1988 and the same was
decreed against him under Ex.A1, certified copy of the judgment and against the
same, he filed AS No.147/1996, which was also dismissed under Ex.A2, certified
copy of the judgment in the appeal.
The appellate Court in paragraph 16 while
answering point No.2, where the requirement of suit schedule property for his
bonafide personal occupation, held that by virtue of Exs.A1 and A2, revision
petitioner was directed to vacate from the tenanted premises, which he has been
carrying on business of good grains in the name and style of Tarachand Narasing
Pershad in the premises bearing No.15-9-608. The fact of the revision
petitioner carrying on business is not denied. The fact of revision petitioner
was evicted from the said premises is also not denied by virtue of Exs.A1 and
A.2. The revision petitioner was carrying on business in food grains in a
rented premises and he was evicted from the same. Therefore, he requires
premises for starting his own business. Both the Courts held that since the
petitioner is having another non-residential premises and he suppressed the said
fact in the eviction petition, as such, he is not entitled for relief. When the
respondent/tenant filed amended counter stating that the revision petitioner
owns other non-residential premises in the city, that aspect was suppressed by
the revision petitioner. The revision petitioner filed rejoinder denying the
same. He has categorically denied in respect of each item stating that he is
not owning any other non residential premises and the said premises is owned by
his brother.
He also stated that the suit premises is located at
Siddiamberbazar, which is a business locality and any business will flourish in
that locality. Therefore, according to the revision petitioner, the locality of
the suit premises is more suited for his business.
He also stated that suit
for partition is filed among the family members and the same was partly decreed
and the appeal filed against the same shows that there is dispute between the
family members in respect of the properties.
The respondent/tenant also has not
shown that the revision petitioner specifically owns any other non-residential
premises in his individual property. It has to be seen that even if joint
family members owns any non-residential premises and the revision petitioner is
member of that joint family, that will not disentitle the revision petitioner
from seeking eviction, unless the revision petitioner/landlord individually owns
any other non-residential premises. Admittedly, suit for partition is partly
decreed and appeal against the same is pending and all the properties are
subject matter of partition suit, which shows that the revision petitioner is
not owning exclusively any other non-residential premises. As the revision
petitioner is not exclusively owning any of the non-residential premises, he is
entitled for eviction of the respondent/tenant on that ground. P.W.1 states
that he is owning other non-residential properties. Owning properties being one
of the members of joint family does disentitle the revision petitioner for
eviction of the respondent/tenant because owning property through joint family,
he cannot get exclusive possession and he cannot be termed as exclusive owner of
the premises. Therefore, the revision petitioner/landlord requires the schedule
property for his own personal occupation for starting his own business.
18. Point No.3.
As far as the denial of title of the revision petitioner/landlord by the
respondent/tenant is concerned, the Rent Controller has held that the denial
title by the respondent/tenant is not bonafide, but the appellate Court
reversed the said finding. Since the pleading of the respondent/tenant is that
the revision petitioner alone cannot file the eviction petition, there was no
denial of title as such. In view of the same, it cannot be said that the
respondent/tenant has denied the title of the revision petitioner. The above
said finding of the appellate Court is confirmed.
19. a) In V.Radhakrishnan v. S.N.Loganatha Mudaliar (supra), it is observed as
follows:
12. On a plain reading of Section 10(3)(a)(iii) of the Act,
it appears
to us that the legislature intended that a landlord seeking eviction of the
tenant could be disentitled from claiming possession of the non-residential
premises where he requires those premises for his own use, if he is occupying a
non-residential building of his own. Similarly, the landlord would also be
disentitled from claiming possession of non-residential premises for the benefit
of a member of his family, if that member of the family was in occupation of a
non-residential building of his own. Any other interpretation of this section
would not only be doing violence to the plain language of the section but would
result in absurdity inasmuch as the benefit of the provision would stand denied
to the family members of the landlord, who do not occupy any premises of their
own and for whose benefit eviction is sought, if the landlord himself is in
occupation of a non-residential premises of his own. The fact that the landlord,
who seeks eviction for the benefit of a member of his family, is himself
occupying a building of his own, cannot operate as a bar to the landlord seeking
eviction for the benefit of a member of his family, who does not occupy any
premises of his own.
Thus, it follows and we hold that the law laid down in
Jagannatha Chettiar case1 is not the correct law. The learned Single Judge in
Chettiar case1 did not notice, let alone consider the three earlier judgments in
Indian Plywood3; K. Chettiar4 and Annamalai and Co.5 In our opinion, the
judgments in Kannan case2, Indian Plywood Manufacturing Co. case3, K. Chettiar
case4 and Annamalai and Co. case5 lay down the correct law, which we hereby
approve."
b) In Lingala Kondala Rao v. Vootukuri Narayana Rao (supra), it is
observed as follows:
10. We hold that joint Hindu family premises in which joint family business
is being run and wherein the landlord too has a share and interest and juridical
possession on account of being a member of the family would not disentitle the
landlord from seeking recovery of possession from the tenant of a non-
residential building exclusively owned by him subject to his satisfying other
requirements of Section 10(3)(a)(iii).
c) In Gulab Chand Pukhraj v. R.B.Jinender Raj and another, (supra) it
is observed as follows
"12. In J. Pandu v. R. Narsubai6 this Court held that a landlord,
notwithstanding his occupation of a non-residential building, can still seek
eviction of his tenant from his business premises if the landlord is able to
satisfy that the non-residential building occupied by him is not sufficient and
suitable for the purpose of expansion of his business or for the purpose of a
new business which he bona fide proposes to commence or that the shifting of his
business has become inevitable. This Court has taken the same view in Saroj
Kumar Das (Dr.) v. Arjun Prasad Jogani7.
14. Obviously, there is clear conflict of opinions of this Court in the
aforementioned cases.
In Boorgu Jagadeshwaraiah & Sons3 a three-Judge Bench of
this Court examined all these three decisions given in D. Devaji8, Saroj Kumar
Das (Dr.)7 and J. Pandu6 and came to the conclusion that the aspects of quality,
size and suitability of the building have been totally put out of consideration.
Non-consideration of the quality, size and suitability of the building would be
to frustrate the purposes of the Act.
d) In Munnalal (died) by LR and others v. Englarg Pershad (supra), it is
held as under:
"9. Rule 5(1) of the Rules lays down the procedure, when a tenant is
desirous of depositing the rent under sub-section (5) of Section 8, or 9 or
Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1960 (for short 'the Act'). Rule 5(4) of the Rules lays down the procedure
for service of a notice of deposit and specifies that it shall be done in
accordance with Rule 16 of the Rules.
10. Rule 16 of the Rules reads as under:
16.(1) All notices under the Act issued by the Controller or the
appellate authority and all orders passed by the Controller or the appellate
authority if not pronounced in open Court shall be served on the person
concerned;
(a) personally by delivering or tendering to him the notice or
order; or
(b) if such person is not found, by leaving the notice or order at
his last known place of abode or business of by giving or tendering the same to
some adult member of his family; or
(c ) if such person does not reside in the area within the
jurisdiction of the Controller or the appellate authority, by sending the same
to him by registered post, with acknowledgment due; or
(d)........... (not relevant for the present controversy).
13. Since the tendering of rents was not communicated by way of a
notice in terms of Rules 5(4) and 16 of the Rules, the appellate Court was right
in coming to a conclusion that it was a case of willful default."
The above judgments cited by learned counsel for petitioner are applicable
to the facts of the case.
20. Learned counsel appearing for respondent/tenant relied on the
following decisions:
a) Kunji Bai G. Chugani v. Fashions, Secunderabad (supra), it is held as
follows:
20. Each case has to be decided on its own facts and circumstances. Where
in a case the landlord is in possession of several non-residential premises and
is entitled for their possession and when he is seeking eviction of a tenant
from a non-residential premises it appears that the landlord must plead that the
other non-residential premises held by him are not suitable in size, location
etc., for the business he proposes to start or for the purpose of a business
which he is carrying on, on the date of application."
In Ballani Ranganayakulu and others v. Mattupalli Nageswara Rao (supra) it
is observed as follows:
"6. Thus on general principles a party who has an order in its favour is
entitled to show that the order is justified on some ground which was decided
against it in the Court below. The said general principle is not inconsistent
with Section 20 of the Rent Control Act for there is no provision for filing
cross-objections."
In Mohammed Abdul Rahman and others v. B.Manorama and another (supra), it
is observed that:
"5. It is now well settled that jurisdiction of High Court under Section
22 of the Act is revisional jurisdiction. Though the power is a little wider
than revisional jurisdiction, it is not equal to appellate jurisdiction. A
limited scrutiny is to see that order passed by appellate authority is not
vitiated by illegality, irregularity or impropriety. Mere possibility of a
different conclusion in background facts does not enable High Court to reverse
finding of appellate authority. A reference may be made to Mudigonda Chandra
Mouli Sastry v Bhimanepalli Bikshalu, 1999 (5) ALD 101 (SC) = (1999) 7 SCC 66 =
AIR 1999 SC 3095, N.Prabhakar Rao v. J.R.Ramesh Kumar, 2002 (1) ALD 127 (SC) =
(2002) 1 SCC 176 = AIR 2002 SC 95, Harshavardhan Chokkani v. Bhupendra N.Patel,
(2002) 3 SCC 626 = AIR 2002 SC 1373= 2002 AIR SCW 1207 and Champa Lal v Shaik
Najmuddin, (2002) 5 SCC 20 = AIR 2002 SC 2076. Except last cited authority
other three decisions were rendered by Apex Court while interpreting Section 22
of the Act.
In all these judgments, it was held that in exercise of revisional
jurisdiction under Section 22 of the Act, High Court cannot reappreciate
evidence."
The facts in the present case on hand are different with those of the
facts in the cited decisions relied on by the learned counsel for the
respondent, hence, they have no application to the present case.
21. The findings of the Courts below suffers from inherent defects as Ex.A18
is not correctly interpreted and are based on irrelevant material and rejection
of eviction petition is also based on surmises and conjunctures and same is
liable to be interfered with in this revision petition.
22. In view of the above discussion and the law laid down by this Court as
well as Apex Court as discussed above, I am of the opinion that the orders
passed by the Courts below are liable to be set aside and the same are hereby
set aside and the eviction petition is ordered by allowing this Civil Revision
Petition.
Accordingly, the Civil Revision Petition is allowed. The
respondent/tenant is directed to vacate the schedule premises within six (6)
months from today, on condition of his paying arrears of rent, if any, and also
an undertaking that he shall vacate the premises within six (6) months by paying
the rent for the said period. There shall be no order as to costs. As a sequel
thereto, miscellaneous petitions, if any, pending in this Civil Revision
Petition, shall stand closed.
_______________________
A.RAJASHEKER REDDY, J
October, 30, 2013.
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