Rent control Case - Non- Joinder of Firm in eviction case default in payment of rents - When eviction case is filed against a Managing partner , Non- joinder of firm and other partners is not fatal to the case - Lower courts wrongly dismissed the case though held that the respondent committed willful default in payment of rents- High court set aside the Lower court orders and allowed the revision = Shivraj Sanghi ....petitioner Keshav Deo Dalmia.....Respondents = published in judis.nic.in/judis_andhra/filename=10466

Rent control Case - Non- Joinder of Firm in eviction case default in payment of rents - When eviction case is filed against a Managing partner , Non- joinder of firm and other partners is not fatal to the case - Lower courts wrongly dismissed the case though held that the respondent committed willful default in payment of rents- High court set aside the Lower court orders and allowed the revision = 
When once it is the admission of the respondent
that he is the Managing partner of the partnership firm and he is paying the
rents and also signed on the lease deed, in those circumstances, non-impleadment
of the Partnership firm or other partners is not fatal to the case as the
tenancy is not denied by the respondent.
 It is also not in dispute that the
respondent is in possession of the demises premises by virtue of the lease deed
dated 10.12.1986.
 Since the Partnership firm is an association of persons unlike
a Company, in the present case the respondent  would  fall within the definition
of "tenant" as per the provisions of Section 2(ix) of the Act and as such on
this sole ground it cannot be termed that  there is no relationship between the
revision petitioner and the respondent.
In S. VENKATA SUBBA RAO's case (1 supra) a learned single Judge of this Court  
considering the provisions of Section 4 of the Partnership Act and Order 30 of
CPC held that any partner while carrying on business of the firm acts as an
agent of other partners, thus, even assuming that the tenant is firm, eviction
petition filed against one of the partners is maintainable as in the eye of law
he represents all the partners.
 In SHANKAR HOUSING CORPORATION' s case (2 supra      
), it was held by the Supreme Court that - " A firm is not a legal entity but is
only a collective or compendious name for all the partners."  In view of the
above judgments, relied on by the learned counsel for the petitioners, in my
view, the eviction petition ought not to have been dismissed on the ground that
the Partnership firm was not made party.
For the foregoing discussion, though the Rent Controller came to a correct
finding of fact that the respondent-tenant committed willful default in payment
of rent, ought not to have dismissed the Eviction Petition on the premise that
it was filed against the respondent in the individual capacity instead of
Partnership firm. 
I am of the view that both the courts have erroneously
negatived the plea of the landlord only on the ground that the partnership firm
was not made party.  
As discussed above, the respondent would fall within the
definition of tenant as defined under section 2(ix) of the Act. 
In view of the
same, I hold that there is relationship of landlord and tenant between the
petitioner and the respondent and thus the findings of both the courts below are
liable to be set aside.
In view of the above, the orders under challenge are set side and the Eviction
Petition filed by the landlord is allowed on the ground of willful default.
Subject to above directions, the Civil Revision Petition is allowed. The
respondent shall vacate the premises within a period of three months from today
subject to conditions that he shall pay all arrears of rents and shall give an
undertaking that he will vacate the premises after expiry of three months period
as ordered above and continue to pay the rents for the said three months period.
No costs.

THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY          

CRP No.5998 of 2005

dated:11-10-2013

Shivraj Sanghi ....petitioner                  

Keshav Deo Dalmia.....Respondents


Counsel for the Petitioner:  Sri N. Chandradhar Rao.

Counsel for Respondents:

<Gist :

>Head Note:

?Cases referred:

1 1995(2) ALD 619
2 AIR 1978 DELHI 255
3 1976 THE ANDHRA WEEKLY REPORTER 426          
4 (2003) 8 Supreme Court Cases 413
5 1996(4) ALT 666
6 (1994) 2 Supreme Court Cases 289
7 1997 (3) ALT 511
8 1996 (4) ALD 95
9 2007(6) ALD 497
10 AIR 1998 SUPREME COURT 1395      


HON'BLE SRI JUSTICE A. RAJASHEKER REDDY        
       
CRP No.5998 of 2005

 ORDER:
        The revision petitioner herein is the landlord who filed RC No.712 of 1999
on the file of the Court of the I Additional Rent Controller, Hyderabad seeking
eviction of the respondent on the ground of willful default in payment of rents.
The case of the petitioner is that he filed RC alleging that he is the "Kartha"
of Shivraj and sons, the owner of the premises bearing No.5-1-1068/1, situated
at Gowliguda, Hyderabad and the respondent Keshav Deo Dalmia ( partner Dalmia
Brothers) is the tenant.  The lease deed was executed on 10.12.1986 for a period
of 11 months on a monthly rent of Rs.400/- and a sum of Rs.10,000/- was
deposited with the petitioner/landlord which is refundable at the time of
vacating the petition schedule premises. After the expiry of the period under
the said lease deed, no fresh lease was executed and the respondent has been
continuing as tenant on the same terms and conditions, except the rent, which as
per annexure 'A' shall be enhanced @ 10% of the rent at the end of the every
third year. The respondent paid the enhanced rent from May to July, 1997 under
receipt dated 10.7.1997 and thereafter, he did not pay the rent. The respondent
has not paid the property tax for 10 years. He paid the tax of Rs.12,307.50 ps
from 1996  on 10.7.1997.  According to the petitioner, the respondent committed
default in payment of rent and hence sought for eviction on that ground under
Section 10(2)(i) of the A.P. Buildings (Lease, Rent & Eviction ) Control Act,
1960 (for short "the Act").
The respondent filed the counter alleging that the eviction petition in the name
of individual is not maintainable. As per the averments in Para 3 of the
eviction petition a lease deed was executed on 10.12.1986 by M/s.Dalmia Brothers
represented by its Partner Keshav Deo Dalmia.  M/s.Dalmia Brothers is a
partnership firm and the firm has obtained the petition schedule premises under
the lease deed dated 10.12.1986 and the eviction petition filed in the name of
the respondent is not maintainable under law and is liable to be dismissed in
limini. The petitioner has not made all the partners of the firm as parties to
the eviction petition, hence, the same is not maintainable for non-joinder of
necessary parties. It was further alleged that  petitioner has not disclosed the
particulars of the members of the joint family. The lease deed dated 10.12.1986
disclosed that the petitioner entered into the lease agreement in his individual
capacity and not as a Kartha of the joint family. The other co-owners are proper
and necessary parties to the eviction petition. Hence, the eviction petition is
not maintainable on that ground also.  It is further stated that the lease deed
was executed on 10.12.1986 by the firm on payment of Rs.10,000/- as deposit with
the petitioner and that holding of the said deposit amount is in contravention
of Section 7 of the Act and the petitioner is liable to refund the said amount
forthwith. It is also stated that the petitioner used to collect the rents as
per his convenience once in three or four months at irregular intervals and he
even collected 11 months rent in lumpsum. The practice of collection of rents at
irregular intervals has been in existence since 1987. The rents sent by way of
cheques have been encashed by the petitioner without any protest, thereby the
petitioner by disowning his own conduct has given a go by to the terms and
conditions of the lease deed dated 10.12.1986.  Though the respondent sent the
rents by way of cheques, the petitioner has not presented the same for
encashment intentionally in order to create a ground for eviction.  It was also
stated that the petitioner has not presented the cheques sent to him for
encashment, thereafter the respondent addressed a letter dated 16.2.2000
narrating the true facts and enclosing a cheque No.158057 towards the rent for
the period from August, 1997 to January, 2000 and property tax for the year
1997-98 and 1998-99.  The respondent has also requested the petitioner to
furnish his bank account number and that in spite of receiving the said letter,
the respondent failed to give any reply. The petitioner is not entitled to the
payment of premium or other like sum in addition to the monthly rent and that
the petitioner is liable, either to adjust the amount from out of  monthly rents
or to return the same. For the first time, the petitioner demanded the property
tax on 10.7.1997 and the firm paid the same. The respondent after putting in
appearance on the date of hearing i.e. 3.7.2000 paid Rs.3,521.20 towards the
rent for the months of February, 2000 to July 2000 @ Rs.585.20 ps. per month and
Rs.1,225/- towards the property tax for the year 1999-2000. The rent for the
said period and the property tax were tendered by money orders and the same were
returned as 'refused' and the said amount was paid to the counsel for the
petitioner. Accordingly, it is stated that there is no default muchless willful
default in payment of rent. Hence, the respondent prayed that the eviction
petition may be dismissed with costs.
On the above pleadings, the Rent Controller framed the following points for
consideration.
i) Whether there is a jural relationship in between the parties as landlord and
tenant ?
ii) Whether the respondent committed willful default?"


The petitioner in support of his case examined himself as PW 1 and got marked
Exs. P 1 to P4.  The respondent examined himself as RW1 and got marked Exs.R.1  
to R.8, apart from that Exs.X1 to X.3, X.3(a), X.3(b), X3(c), X3(d), X3(e), X4,
X5, Ex.X5(a), Ex.X.6, X7, and Exs.X7(a) to X7(n) were also got marked.
The Rent Controller on  consideration of the evidence on record held that the
respondent committed willful default in payment of rent but dismissed the
petition on the premise that the eviction petition was filed against the
individual instead of filing the same against the firm M/s.Dalmia Brothers
represented by its Managing Partner Keshav Deo Dalmia; that the firm was not
made party and there is no jural relationship between the petitioner and the
respondent/individual.
Aggrieved by the same, the petitioner preferred appeal in RA No.369 of 2002 on
the file of the court of the Chief Judge, City Small Causes Court, Hyderabad.
The Rent Appellate Court by its order dated 9.9.2005 dismissed RA No.369 of 2002
holding that there is no jural relationship between the revision petitioner and
the Managing Partner of the Partnership firm and therefore question of
committing of default does not arise.
Aggrieved thereby, the present Civil Revision Petition has been filed by the
landlord.
Sri Chandradhar Rao, learned counsel for the revision petitioner vehemently
contended that even though the firm is not made as party, the respondent being
the Managing Partner of the partnership firm is doing the business of the firm
and that the respondent was  paying the rents to the landlord.  It is further
contended that it is not as though the respondent is a stranger to the said
Partnership firm and Partnership firm is not a legal entity unlike a company.
Since lease was obtained by the respondent herein under the lease deed dated
10.12.1986 and when the respondent himself signed the lease deed on behalf of
the partnership firm and other partners, non-impleadment of the Partnership firm
or the other partners is not fatal to the case. Learned counsel referring to the
definition of "tenant" contained in Section 2(ix) of the Act,  would contend
that on behalf of the Partnership firm the respondent was paying the amounts;
that the respondent as RW 1 has deposed that he used to pay the rents,  as such,
for all practical purposes he can be treated as tenant for the purpose of rent
control proceedings.  It is further contended by the learned  Counsel that
though the Rent Controller has gave a specific finding that the respondent has
committed willful default in payment of rents, but dismissed the Eviction
Petition on the ground that the firm was not made party.  The appellate Court in
a mechanical manner confirmed the order of the Rent Controller on the ground
that the Partnership firm was not made party and therefore willful default in
payment of rent by the respondent cannot be decided. He also contends that the
order 30 Rule 1 of CPC applies to the Rent Control Proceedings and as such only
on the technical ground the eviction petition ought not to have been dismissed
by the Courts below.
Learned counsel for the petitioner in support of his contentions has placed
reliance on the decisions reported in S. VENKATA SUBBA RAO v. P.V.V.JAGANNADHA      
RAO 1, SHANKAR HOUSING CORPORATION v. MOHAN DEVI 2, C. R. PATEL V. STAE OF A.P.              
3, and the decision of the Supreme Court reported in ILLACHI DEVI v. JAIN
SOCIETY, PROTECTION OF ORPHANS INDIA 4.        
On the other hand, learned counsel for the respondent contended that P.W.1-
revision petitioner in his cross examination admitted about receipt of cheque
issued by the respondent-tenant for the default period as such there is no
willful default committed by the respondent-tenant for the default period as
alleged by the revision petitioner. When once the cheque is received by P.W.1,
it is deemed that he has accepted the amount and as such there cannot be any
default for the same period. She also contended that the revision petitioner-
landlord used to receive the rents once in two months or sometimes for 11 months
at once and when the landlord himself was receiving the rents at irregular
intervals, the clause mentioned in the lease deed that the rents shall be paid
regularly gets waived.  She also contended that when the landlord himself
received the rents irregularly, it is not open to the landlord to contend that
there is willful default in payment of the rents. She also contended that under
Section 7 of the Act, landlord is entitled to take one month amount as deposit
but he cannot deposit of Rs.10,000/- and the same should have been adjusted by
the landlord towards arrears for the rents.  In support of her contentions, she
places reliance on the judgments reported in  RAMALA RAMAIAH v. M. NARASIMHA RAO      
5, KRANTI SWAROOP MACHINE TOOLS PVT LTD v. KANTA BAI ASAWA 6,  K. VENKATA                
RAMAIAH V. P. RUKMINAMMA 7, BHAGI BAI v. SWASTIK ROLLER FLOUR MILLS 8,  MOHAN                
LAL v. SHAJJIA SULTANA 9 and  K.A. RAMESH v. SUSHEELA BAI 10.        
In the present case the Rent Controller after considering the evidence of PW 1
revision petitioner herein and respondent held that the respondent has committed
willful default in payment of rents and inspite of the said findings that the
respondent committed willful default in payment of rents, curiously it dismissed
the eviction petition on the sole ground that the respondent was shown in the
individual capacity where as the tenancy is between the Partnership firm and the
landlord.  The Rent Controller also found that there is no jural relationship
between the revision petitioner and the respondent. The Rent Appellate Court
also proceeded on same footing and the dismissed the eviction petition holding
that there is no jural relationship between the revision petitioner and the
respondent.
In this context it is apt to refer to Section 2(ix) of the Act wherein "tenancy'
is defined as under :
" 2(ix)   'Tenant' means any person by whom or on whose account rent is payable
for a building and includes the surviving spouse, or any son or daughter, of a
deceased tenant who had been living with the tenant in the building as a member
of tenant's family up to the death of the tenant and a person continuing in
possession after the termination of the tenancy in his favour, but does not
include a person placed in occupation of a building, by its tenant or a person
to whom the collection of rents or fees in a public market, cart-stand or
slaughter-house or of rents for shops has been framed out or leased by a local
authority."

RW 1 has admitted that he is paying rents and it is also fact that he is the
Managing Partner of the firm.
When once it is the admission of the respondent
that he is the Managing partner of the partnership firm and he is paying the
rents and also signed on the lease deed, in those circumstances, non-impleadment
of the Partnership firm or other partners is not fatal to the case as the
tenancy is not denied by the respondent.
 It is also not in dispute that the
respondent is in possession of the demises premises by virtue of the lease deed
dated 10.12.1986.
 Since the Partnership firm is an association of persons unlike
a Company, in the present case the respondent  would  fall within the definition
of "tenant" as per the provisions of Section 2(ix) of the Act and as such on
this sole ground it cannot be termed that  there is no relationship between the
revision petitioner and the respondent.
In S. VENKATA SUBBA RAO's case (1 supra) a learned single Judge of this Court
considering the provisions of Section 4 of the Partnership Act and Order 30 of
CPC held that any partner while carrying on business of the firm acts as an
agent of other partners, thus, even assuming that the tenant is firm, eviction
petition filed against one of the partners is maintainable as in the eye of law
he represents all the partners.
 In SHANKAR HOUSING CORPORATION' s case (2 supra      
), it was held by the Supreme Court that - " A firm is not a legal entity but is
only a collective or compendious name for all the partners."  In view of the
above judgments, relied on by the learned counsel for the petitioners, in my
view, the eviction petition ought not to have been dismissed on the ground that
the Partnership firm was not made party.
In K.A. RAMESH's case (10 supra) relied on by the learned counsel for the
respondent,  has no application to the facts of the present case,  since in that
case bank draft for the entire arrears sent prior to the filing of the
proceedings was got encahsed by the landlords therein. But, in the present case
cheque was sent by the respondent  the Rent Controller observed that the tenant
kept quite from February 2000 till July 2000 without verifying as to whether the
cheque is encashed or not by the petitioner.
In MOHAN LAL's case ( 9 supra) the tenancy was created between an individual who
is the tenant in the case and the land landy therein. There was an  admission of
the tenant himself that the business was being run by his brother. The ground
that since rent for default period has been deposited before receiving notice of
demand, and therefore plea of willful default did not survive, was accepted by
the Rent Controller.  Considering the  fact situation therein it was held by the
learned single Judge as follows :
" ..... the ground that since rent for default period had been deposited before
receiving notice of demand, ground of willful default did not survive, was
accepted by the Rent Controller and there is a clear finding of the Rent
Controller that the rents were received by the landlady in June 2002 by way of
money order which has not at all been discussed by the appellate Court. The Rent
Controller found that the petition was filed on 10.6.2002 and P.W.1 had stated
in her statement that she had received the money order for Rs.3,750/-
representing the rents from February 2002 to June, 2002 in the month of June,
2002.  The petition was also filed in June, 2002 and the tenant received the
summons of the Court on 1.7.2002.  Therefore, before receiving the summons the
tenant had cleared the rent of the alleged default period."
Since the rents were paid before receiving the summons, the learned single Judge
of this Court held that ground of willful default did not survive,  as such that
case has no application to the facts of the present case.
In R. RAMAIAH's case (5 supra ), the tenant therein was paying the rents at
irregular intervals and the landlord used to receive the same without protest
and without issuing notice to pay rent regularly. In those circumstances, it was
held that the tenant therein cannot be termed as willful defaulter. However, in
the present case the Rent Controller gave a specific finding that the tenant has
committed willful default and therefore that case has no application to the
facts of the present case.
In K. VENKATA RAMANAIAH's case ( 7 supra), considering the provisions of Section
7(2)(a) of the Act it was held by this Court that the tenant is entitled to
appropriate advance rent lying with landlord towards rental arrears only to the
extent of excess amount over one month's rent and not the entire advance amount
and that where landlord is having advance amount more than one month's rent, he
shall give automatic adjustment of arrears of rent from the excess amount he is
having as advance whether tenant made any claim to that effect or not.
In KANTA BAI ASAWA's case (6 supra ), it was held by the Supreme Court that
adjustment from deposit made by tenant with landlord should be made even without
a specific request by tenant in that behalf regarding arrears of rent.  However,
in the present case, the Rent Controller on appraisal of the evidence on record
found that even after adjustment of the deposit still the tenant was due certain
amount. This being the finding of fact the principle laid down in those cases
relied on by the learned counsel for the respondent, has no application to the
present facts and circumstances of the case.
 In BHAGI BAI 's case ( 8 supra ) it was held that  when the landlord was
receiving the rents at irregular intervals, without any objection, the conduct
of the landlord certainly given an impression that the tenant can pay rents
irregularly, and as such the landlord cannot contend that the tenant committed
willful default in payment of rents.  However, in the present case, the Rent
Controller on consideration of the evidence found that the respondent-tenant
failed to verify whether cheque sent by him was encashed by the revision
petitioner or not and  not taken any further steps to see that the rents are
paid to the revision petitioner, and as such this case has no application to the
facts of the present case.
For the foregoing discussion, though the Rent Controller came to a correct
finding of fact that the respondent-tenant committed willful default in payment
of rent, ought not to have dismissed the Eviction Petition on the premise that
it was filed against the respondent in the individual capacity instead of
Partnership firm. 
I am of the view that both the courts have erroneously
negatived the plea of the landlord only on the ground that the partnership firm
was not made party.  
As discussed above, the respondent would fall within the
definition of tenant as defined under section 2(ix) of the Act. 
In view of the
same, I hold that there is relationship of landlord and tenant between the
petitioner and the respondent and thus the findings of both the courts below are
liable to be set aside.
In view of the above, the orders under challenge are set side and the Eviction
Petition filed by the landlord is allowed on the ground of willful default.
Subject to above directions, the Civil Revision Petition is allowed. The
respondent shall vacate the premises within a period of three months from today
subject to conditions that he shall pay all arrears of rents and shall give an
undertaking that he will vacate the premises after expiry of three months period
as ordered above and continue to pay the rents for the said three months period.
No costs. The miscellaneous applications if any stands closed in the light of
this order.
____________________________    
A. RAJASHEKER REDDY,   J    
Dated : 11th  October  2013

Or. 21 , rule 95 C.P.C. - Limitation Act Art.134 one year - for delivery of possession - starts from the date of confirmation of sale - high court held that Pattan Sardar Khan v. Pattan Rasool Khan3 took the view that the period of limitation must be reckoned from the date of sale certificate, it cannot be said to be correct proposition, in view of the judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra). - Dismissed the second appeal = Yakkala Mohana Rao...appellant. Shaik Hussain and another...Respondents = Published in judis.nic.in/judis_andhrafilename=10462

Or. 21 , rule 95 C.P.C. -  Limitation Act Art.134 one year - for delivery of possession - starts from the date of confirmation of sale -  high court held that Pattan Sardar Khan v. Pattan Rasool Khan3 took the view that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra).  - Dismissed the second appeal = 

The sale in the instant case became absolute on 21.04.2008.  The E.A. for
delivery of possession was filed in 2012.  It is clearly beyond the time
stipulated under Article 134.  The appellant sought to overcome the objection by
stating that the sale certificate was issued to him only on 03.02.2012 and
hardly within 10 days from that date, he filed the E.A.

However, the date of sale certificate becomes hardly of any significance in the
context of calculating the limitation.  The starting point is the date of
confirmation of the sale.  The lower Appellate Court has taken note of the
judgment of the Supreme Court in Pattam Khadar Khan v. Pattam Sardar Khan2.   
Though this Court in Pattan Sardar Khan v. Pattan Rasool Khan3 took the view
that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the
judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra). 
 Added to 
that, in the recent past, this Court in Gampa Srinivasa Ramesh Kumar v. Punagani
Venkataramaiah4 held that the starting point for limitation is the date of
confirmation i.e. when the sale became absolute.  The lower Appellate Court has
taken correct view of the matter and this Court does not find any substantial
question of law in the second appeal.

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY          

Second Appeal No.512 of 2013
       
Dated 11-10-2013

Yakkala Mohana Rao...appellant.

Shaik Hussain and another...Respondents


Counsel for appellant:  Sri N.Narasimha Rao

Counsel for Respondent No.1: Sri G.L.V.Ramana Murthy  

<GIST:

>HEAD NOTE:  

?Cases referred
1. 2004 (6) ALD 175 (FB)
2. (1996) 5 SCC 48
3  1994 (1) ALT 15
4. 2002 (4) ALT 639



THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Second Appeal No.512 of 2013

JUDGMENT:  
       
This second appeal is filed against the judgment and decree, dated 29.04.2013,
in A.S.No.5 of 2012, passed by the Court of Senior Civil Judge, Gurazala, Guntur
District.  The 1st respondent in A.S.No.5 of 2012 is the appellant herein.

The 2nd respondent herein, viz., Javvaji Ramaiah, filed O.S.No.228 of 2000,
against the 1st respondent, in the Court of Principal Junior Civil Judge,
Gurazala, for recovery of certain amount.  The suit was decreed and after the
decree became final, he filed E.P. in the Court of Principal District Judge,
Piduguralla.  An item of immovable property was got attached and was brought to
sale on 27.01.2006.  The appellant herein emerged as the highest bidder and the
sale in his favour was confirmed on 21.04.2008.

The Court of Junior Civil Judge, Piduguralla, was constituted at that stage.
Since the subject-matter of the suit and E.P. is within the jurisdiction of that
Court, the E.P. and the relevant record were sent to the Court of Junior Civil
Judge, Piduguralla.  E.P. came to be renumbered as E.P.No.8 of 2008.  The
petitioner filed E.A.No.21 of 2012 in the Court of Junior Civil Judge,
Piduguralla, under Rule 95 of Order XXI C.P.C., for delivery of possession of
the E.P. schedule property.  The 1st respondent raised an objection to the E.A.
He pleaded that the E.A. was filed beyond the period of limitation stipulated
under Article 134 of the Schedule to the Limitation Act, 1963, and is not
maintainable.  He has also taken the plea that a suit for specific performance
in relation to the said property is pending and that the 1st respondent is a
party to it.  The Executing Court overruled the objections and allowed the E.A.,
through order, dated 14.06.2012.

The 1st respondent filed a revision before this Court challenging the order in
the E.A.  This Court disposed of the revision, leaving it open to the 1st
respondent to pursue the remedy of appeal.  Accordingly, the
1st respondent filed A.S.No.5 of 2012 before the Court of Senior Civil Judge,
Gurazala, against the order, dated 14.06.2012.

The appeal was opposed by the appellant herein, by raising the plea as to
maintainability.  He pleaded that an order passed in E.A., under Rule 95 or
Order XXI is not appealable under the C.P.C.  As regards limitation, he pleaded
that on account of the constitution of a Court at Piduguralla, proceedings in
the E.P. could not be taken up promptly and the sale certificate was issued only
on 03.02.2012.  He pleaded that the E.A. was filed within one year from the date
of sale certificate.

The lower Appellate Court allowed the appeal through its judgment, dated
29.04.2013.  Hence, this Second Appeal.

Sri N.Narasimha Rao, learned counsel for the appellant, submits that A.S.No.5 of
2012 was not maintainable at all, since it was presented against an order passed
in an application filed under Rule 95 of Order XXI C.P.C.  He contends that in
the revision filed by the appellant, this Court has simply observed that the 1st
respondent can pursue the remedies in accordance with law and the said
observation cannot be taken as conferring jurisdiction upon the lower Appellate
Court.   He submits that an application for possession of the property sold in
execution of a decree can be filed within one year from the date of the sale
certificate.  It is also his contention that an application for possession
cannot be filed in the absence of a sale certificate.

Sri G.L.V.Ramana Murthy, learned counsel for the 1st respondent, on the other
hand, submits that the limitation for filing an application for delivery of
possession has to be reckoned from the date on which the sale was confirmed and
viewed from that angle, E.A. filed by the appellant, was clearly barred by
limitation.  He further submits that the objection raised by the 1st respondent
as to maintainability of the appeal, is untenable.  According to the learned
counsel, the appellant categorically pleaded that there is an objection and
resistance for delivery of possession by the 1st respondent and any adjudication
into such a claim, is referable only to Rule 97 of Order XXI C.P.C. and the
result of adjudication is certainly appealable.

Brief introduction of the subject-matter of the second appeal has already been
furnished in the preceding paragraphs.  The 2nd respondent obtained a decree
against the 1st respondent and in the course of execution of the decree, an item
of immovable property was brought to sale and the appellant became the highest
bidder in the auction.  He filed the E.A. under Rule 95 of Order XXI C.P.C., for
delivery of possession.  Challenging the same, the 1st respondent filed A.S.No.5
of 2012.  Neither in the E.A., nor in the first appeal, any oral or documentary
evidence was adduced.  The Executing Court framed only one point for its
consideration in E.A.No.21 of 2012, which reads:

"Whether the petitioner/auction purchaser is entitled for delivery and
possession of E.P. schedule property by evicting the J.Dr./2nd respondent?"

The issue was answered in favour of the appellant herein.  The lower Appellate
Court framed the following two points for its consideration in A.S.No.5 of 2012:

(i) "Whether the application under Order XXI Rule 95 C.P.C. by auction purchaser
is within time and the lower Court followed procedure contemplated under law
while delivering the property to the auction purchaser?

(ii) Whether the judgment debtor is entitled to question orders of the execution
court by way of appeal before this Court?"

Both the points were answered against the appellant herein.

Before this Court also arguments have advanced on the same points.

The aspect relating to the maintainability of appeal needs to be dealt with
first.  It is a matter of record that E.A.No.21 of 2012 was filed under Rule 95
of Order XXI C.P.C.  The prayer in that E.A. reads:


"For the reasons stated in the accompanying affidavit, the petitioner/auction
purchaser pray the Honorable Court may be pleased to order to deliver the
possession of the schedule property to him by evicting the J.Dr., in the
interest of justice."

The appellant stated that the property is in the hands of the
1st respondent and he is entitled for delivery of possession thereof.  On
receipt of notice in the E.A., the 1st respondent filed counter.  He pleaded
that the E.P. schedule property was sold by him to M/s. T.V.Srinivasa Rao and
T.V.Satish Kumar, much prior to the orders of attachment were passed in the
E.P., under an agreement of sale, and that the said purchaser, in turn, filed
O.S.No.160 of 2008 in the Court of Senior Civil Judge, Gurazala, for specific
performance.  It was also mentioned that the appellant herein figured as one of
the defendants in that suit and is contesting the same.  He pleaded that the
appellant has suppressed those facts.  The plea of limitation was also raised.
The Executing Court allowed the E.A.

If one takes into account Rule 95 of Order XXI C.P.C., there is every likelihood
of forming an opinion that an order passed in an application filed under that
provision, can at the most constitute the subject-matter of a revision and not a
regular appeal under Section 96 of C.P.C.  However, if the scheme under Order
XXI C.P.C., particularly at the stage of seeking delivery of the auction
property, is taken into account, a different view becomes possible.

Rule 95 of Order XXI C.P.C., mandates that if an auction purchaser complains
that the judgment debtor or someone on his behalf, is causing obstruction, the
Court may pass an order for delivery of possession for putting the auction
purchaser in possession on an appointed day, if necessary by removing any
person, who refuses to vacate the same.  Rule 96 thereof deals with the delivery
of possession of a property which is in occupation of a tenant.  Rule 97 cannot
be said to be an independent provision, but a stage in the exercise contemplated
under Rule 95.  Similarly, Rule 98 indicates the manner in which the questions
that arise in the matter of delivery of possession are to be adjudicated.  It
makes a specific reference to Rule 101.  It is essential to read both the
provisions together:

 "98.Orders after adjudication:-
(1)  Upon the determination of the questions referred to in Rule 101, the Court
shall, in accordance with such determination and subject to the provisions of
sub-rule (2),-
(a)  make an order allowing the application and directing that the applicant be
put into the possession of the property or dismissing the application; or
(b)  pass such other order as, in the circumstances of the case, it may deem
fit.
(2)  Where, upon such determination, the Court is satisfied that the resistance
or obstruction was occasioned without any just cause by the judgment-debtor or
by some other person at his instigation or on his behalf, or by any transferee,
where such transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also, at the instance of the applicant, order the
judgment-debtor, or any person acting at his investigation or on his behalf, to
be detained in the civil prison for a term which may extend to thirty days.

101. Question to be determined:-
All questions (including questions relating to right, title or interest in the
property) arising between the parties to a proceeding on an application under
Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of
the application, shall be determined by the Court dealing with the application,
and not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any other law for the time
being in force, be deemed to have jurisdiction to decide such questions."

Rule 101 makes reference to applications filed under Rule 97 or 99 of Order XXI
C.P.C.  The only difference between Rules 97 and 99 is that while the former
pertains to the obstruction that may be caused by the judgment debtor, the
latter deals with the cases, where third parties complain of dispossession.
Obviously because a detailed consideration of various claims, in a manner,
comparable to Rule 58 is to be undertaken, Rule 103 mandates that the result of
the adjudication undertaken under Rules 98 and 100 shall be treated as a decree,
for the purpose of appeal etc. The provision reads:




"103. Orders to be treated as decrees:-
Where any application has been adjudicated upon under Rule 98 and Rule 100, the
order made thereon shall have the same force and be subject to the same
conditions as to an appeal or otherwise as it is were a decree."


Similar language is employed in sub-rule (4) of Rule 58 of Order XXI C.P.C. It
reads:

"Where any claim or objection has been adjudicated upon under this rule, the
order made thereon shall have the same force and be subject to the same
conditions as to appeal or otherwise as if it were a decree."

In Gurram Seetharam Reddy v. Gunti Yashoda1, a Full Bench of this Court had an
occasion to deal with the manner in which the appeals filed against the decrees
under Rule 58(4) or 100 of Order XXI C.P.C., must be dealt with.   It was held
that the remedies of appeal under Section 96 and second appeal under Section 100
C.P.C. can be availed against such orders-cum-decrees also.  The only difference
pointed out by the Court was that the Court fee must be paid as though it is a
miscellaneous appeal, and not a regular appeal.

The order passed in E.A.No.21 of 2012 is nothing, but the adjudication referable
to Rule 98 and thereby, it culminates in a decree, referable to Rule 100 of
Order XXI C.P.C.  That being the case, the appeal filed by the 1st respondent
herein was certainly maintainable.  The lower Appellate Court has taken correct
view of the matter.

Coming to the other point which touches the merits, it is not in dispute that
the sale was confirmed on 21.04.2008.  It was only in February, 2012 that the
appellant herein filed E.A. for delivery of possession.  The 1st respondent
raised an objection referable to Article 134 of the Schedule to the Limitation
Act.  It reads:

______________________________________________________________          
       Description of application       Period of          Time from which period
                                                    Limitation            begins
to run
_____________________________________________________________          
 134.   For delivery of possession      One year           When the sale becomes
          by a purchaser of
absolute.
immovable property at
a sale in execution of a
decree.
_______________________________________________________________           


The sale in the instant case became absolute on 21.04.2008.  The E.A. for
delivery of possession was filed in 2012.  It is clearly beyond the time
stipulated under Article 134.  The appellant sought to overcome the objection by
stating that the sale certificate was issued to him only on 03.02.2012 and
hardly within 10 days from that date, he filed the E.A.

However, the date of sale certificate becomes hardly of any significance in the
context of calculating the limitation.  The starting point is the date of
confirmation of the sale.  The lower Appellate Court has taken note of the
judgment of the Supreme Court in Pattam Khadar Khan v. Pattam Sardar Khan2.  
Though this Court in Pattan Sardar Khan v. Pattan Rasool Khan3 took the view
that the period of limitation must be reckoned from the date of sale
certificate, it cannot be said to be correct proposition, in view of the
judgment of the Supreme Court in Pattam Khadar Khan's case (2 supra).
 Added to 
that, in the recent past, this Court in Gampa Srinivasa Ramesh Kumar v. Punagani
Venkataramaiah4 held that the starting point for limitation is the date of
confirmation i.e. when the sale became absolute.  The lower Appellate Court has
taken correct view of the matter and this Court does not find any substantial
question of law in the second appeal.

The Second Appeal is accordingly dismissed. There shall be no order as to costs.

The miscellaneous petition filed in this second appeal shall also stand disposed
of.

____________________  
L.NARASIMHA REDDY, J.    
Dated:11.10.2013

Sections 31,31 A, 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993( for short 'the Act') ,Or.21 , rule 10 of C.P.C. and Or.21, rule 64,66- E.P. and Sale of property for more than 10 lakhs decree obtained by Bank on mortgage - Civil court holds no jurisdiction under Or.21 , rule 10 of C.P.C. and as such the sale conducted under Or.21, rule 64,66 is void abinio due to lack of jurisdiction because of the special Act - only Debt recovery Tribunal Holds Jurisdiction to execute the Decree - though Civil court has got jurisdiction to pass a decree for Rs.6 lakhs etc., - High court set aside the order of sale with an option to proceed in Tribunal under sec.31 A of Act = Malampati Koteswara Rao ....Petitioner Bank of Baroda, Nadendla Branch, Nadendla and 3 others.. Respondents = published in judis.nic.in/judis_andhra/filename=10447

Sections 31,31 A, 34 of the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993( for short 'the Act') ,Or.21 , rule 10 of C.P.C. and  Or.21, rule 64,66- E.P. and Sale of property for more than 10 lakhs  decree obtained by Bank on mortgage - Civil court holds no jurisdiction under Or.21 , rule 10 of C.P.C.  and as such the sale conducted under Or.21, rule 64,66 is void abinio due to lack of jurisdiction because of the special Act - only Debt recovery Tribunal Holds Jurisdiction to execute the Decree - though Civil court has got jurisdiction to pass a decree for Rs.6 lakhs etc., - High court set aside the order of sale with an option to proceed in Tribunal under sec.31 A of Act =

Supreme Court in the case of  Punjab
National Bank, Dasuya v. Chajju Ram (2000)6 SCC 655 
When the matter was taken before the Supreme Court, it was 
held that as and when the amount due to the bank under decree became more than  
Rs.10 Lakhs, and an application for execution can only be entertained by a
Tribunal but not the civil Court.  It was further held that Order 21 Rule 10 CPC
has no application.  In the present case though it is contended that filing of
suit and decree were subsequent to the commencement of the Act and that the 
decree has almost been executed, but the Supreme Court clearly held that as and
when the amount due to the Bank became more than Rs.10.00 Lakhs, it can be only  
entertained by the Tribunal but not by the civil Court.  
When Section 31-A of
the amendment Act says that any decree or order was passed by any Court before  
the commencement of the Act and has not yet been executed, then the decree  
holder may approach the Tribunal for recovery of amount, it cannot be said that
the same is not applicable to the suit filed and decree obtained after
commencement of the Act. 
 In view of the law laid down by the Supreme Court in
the above decision, the civil Court has no jurisdiction to entertain the E.P as
the E.P amount is more than Rs.10.00 Lakhs.  In view of the same, the impugned
order is liable to be set aside.
Accordingly, the Civil Revision Petition is allowed and the Auction Sale
conducted on 05.11.2012 in E.P.No.134 of 2005 in O.S.No.74 of 2002 on the file
of the Principal Senior Civil Judge, Narasaraopet, is set aside.  There shall be
no order as to costs.
THE HON'BLE SRI JUSTICE  A.RAJASHEKER REDDY        

C.R.P.No.5717 OF 2012

dated:08-10-2013

Malampati Koteswara Rao ....Petitioner                

Bank of Baroda, Nadendla Branch, Nadendla and 3 others.. Respondents

Counsel for the Petitioner: Sri V.V Ramana

Counsel for Respondent No.1: Sri K. Mallikarjuna Rao
 Counsel for Respondent No.4: Sri Ch.Srinivas

<Gist :

>Head Note:

?Cases referred: (2000)6 SCC 655 

HON'BLE SRI JUSTICE A. RAJASHEKER REDDY        

Civil Revision Petition No.5717 of 2012

ORDER:
This C.R.P is filed against the Auction Sale conducted on 05.11.2012 in
E.P.No.134 of 2005 in O.S.No.74 of 2002 on the file of the Principal Senior
Civil Judge, Narasaraopet.
Facts of the case, which are necessary for disposal of the C.R.P., are as under:
The first respondent Bank filed O.S.No.74 of 2002 against the revision
petitioner and respondents 2 and 3 herein on the file of the Principal Senior
Civil Judge, Narsaraopet, for recovery of a sum of Rs.8,15,499/- due in respect
of cash credit facility availed by 2nd respondent firm, for which 3rd respondent
is the proprietor.  The revision petitioner stood as a guarantor for the said
transaction.  An ex parte preliminary decree was passed therein on 22.11.2002
for a sum of Rs.8,35,554/- together with costs, with subsequent interest at
17.75% per annum.  Subsequently, first respondent filed I.A.No.1661 of 2004 for
passing final decree  and on 22.07.2005 a final decree was passed.   Pursuant to
passing of the final decree, 1st respondent filed E.P.No.134 of 2005 under Order
XXI Rules 64 and 66 of C.P.C for sale of mortgaged property belonging to the
revision petitioner who was stated to be a guarantor in respect of loan obtained
by second respondent. 
It is the case of the revision petitioner that he has not received any summons
from the lower Court either in the suit or in the final decree proceedings.  It
is stated by the revision petitioner that he was bed ridden and only on seeing
paper publication on 27.10.2012 regarding sale of property, he filed petition on
05.11.2012 to set aside ex parte decree; that since the claim under the
execution proceedings filed by the first respondent is Rs.13,40,136/-, which is
more than Rs.10.00 Lakhs, the execution proceedings are maintainable only before
the Debts Recovery Tribunal in terms of Section 31 of the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993( for short 'the Act') and not by
the civil Court after the establishment of the Special Statute Tribunals; that
Order XXI Rule 10 of C.P.C is not applicable to the present case.
Learned counsel for the revision petitioner contends that admittedly the E.P
amount is more than Rs.10.00 Lakhs and as such the Court below has no
jurisdiction to entertain the E.P and pass orders for sale of the property and
sale notice issued is also without jurisdiction.  In support of his contention,
he placed reliance on a judgment of the
Supreme Court in the case of  Punjab
National Bank, Dasuya v. Chajju Ram 1. 
On the other hand, learned counsel for the 1st  respondent Bank contends that in
the present case the decree has almost been executed and the sale also took
place.  As such section 31-A of the Act has no application.  Section 31-A
applies where decree has not been executed but in the present case almost the
decree has been executed.  It is only at the final stage.  
He also contends that
Section 31-A of the Act applies where the decree has been passed before the
commencement of the Act but in the present case decree was passed after  
commencement of the Act, as such Section 31-A of the Act has no application.  He 
also contends that judgment of the Supreme Court has no application because of
the above distinction.
In the present case, it is to be seen that the principal amount borrowed on
31.01.1998 is Rs.5.00 Lakhs.  Suit was filed on 17.04.2002 for recovery of
Rs.8,15,499/- inclusive of interest upto 17.04.2002.  A preliminary decree was
passed on 22.11.2002 for a sum of Rs.8,35,554/- with future interest at the rate
of 17.75% p.a. from the date of filing of suit.
Thereafter final decree was
passed on 22.07.2005 for a sum of Rs.13,20,307/-, which includes interest at
17.75% p.a., on Rs.8,35,554/- from 17.04.2002 to 22.07.2005.
Subsequently,
E.P.No.134 of 2005 was filed by the first respondent bank claiming amount of
Rs.13,40,136/-.
Admittedly the value of the E.P is more than Rs.10.00 Lakhs and
the sale warrant was also issued on 01.11.2012 for Rs.24,13,467/-.
In the case
stated supra, it was held at paragraph No.9 as under:
"The High Court has further erred in holding that because the original decree
which was passed was for principal sum of Rs.6,19,250/- the Tribunal would get
no jurisdiction.  The decree was for a sum of Rs.6,19,250/- plus interest at the
rate of 16 1/2 per cent per annum from the date of filing of the suit till the
recovery of money.  As and when the amount due to the Bank under the decree 
became more than Rs.10 Lakhs and an application for execution was filed, it
could only be entertained by the tribunal and not by the civil court.  It is
clear that in view of the provisions of Section 34 of the Act, the provisions of
Order 21 Rule 10 C.P.C would have no application."
In the case before the Supreme Court, the principal amount claimed in the suit
was Rs.6,19,250/- and the trial Court decreed the suit for the aforesaid amount
with interest at the rate of 16 1/2 per cent per annum from the date of filing
of suit till the recovery of the money. Subsequently, an execution petition was
filed for Rs.12,91,398/-. In those circumstances, the judgment debtor moved an
application before the civil Court stating that the same is to be transferred to
the Debts Recovery Tribunal.  That application was allowed by the trial Court
and ordered the transfer of the execution proceedings to the Debts Recovery
Tribunal.  The matter was taken to the High Court and the High Court reversed
the same holding that it is only the civil Court which had passed decree could
execute the same.  When the matter was taken before the Supreme Court, it was 
held that as and when the amount due to the bank under decree became more than  
Rs.10 Lakhs, and an application for execution can only be entertained by a
Tribunal but not the civil Court.  It was further held that Order 21 Rule 10 CPC
has no application.  In the present case though it is contended that filing of
suit and decree were subsequent to the commencement of the Act and that the 
decree has almost been executed, but the Supreme Court clearly held that as and
when the amount due to the Bank became more than Rs.10.00 Lakhs, it can be only  
entertained by the Tribunal but not by the civil Court.  
When Section 31-A of
the amendment Act says that any decree or order was passed by any Court before  
the commencement of the Act and has not yet been executed, then the decree  
holder may approach the Tribunal for recovery of amount, it cannot be said that
the same is not applicable to the suit filed and decree obtained after
commencement of the Act. 
 In view of the law laid down by the Supreme Court in
the above decision, the civil Court has no jurisdiction to entertain the E.P as
the E.P amount is more than Rs.10.00 Lakhs.  In view of the same, the impugned
order is liable to be set aside.
Accordingly, the Civil Revision Petition is allowed and the Auction Sale
conducted on 05.11.2012 in E.P.No.134 of 2005 in O.S.No.74 of 2002 on the file
of the Principal Senior Civil Judge, Narasaraopet, is set aside.  There shall be
no order as to costs.
Miscellaneous petitions pending, if any, in this C.R.P shall stand closed.

_________________________  
JUSTICE A. RAJASHEKER REDDY      
dated:08-10-2013

A.P. Buildings (Lease, Rent & Eviction) Act, 1960 -Non- examination of petitioner and examination of power of attorney holder -not fatal to the case - Eviction for bonafide occupation - power of attorney holder was examined instead of petitioner - trail court decreed - appellant court set aside the order of lower court - Revision - High court held that non-examination of petitioner is not fatal - examination of power of attorney holder her son with regard to bonafide need for his another brother is valid - not suffers from any defects - set aside the order of lower appellant court came to wrong conclusion = Smt. G.Venkatamma (died) per L.R,G.Narasimha Reddy.... Petitioner Dr. Vijay Chandra Mathur.... Respondent = published in judis.nic.in/judis_andhra/filename=10475

A.P. Buildings (Lease, Rent & Eviction) Act, 1960 -Non- examination of petitioner and examination of power of attorney holder -not fatal to the case -  Eviction for bonafide occupation - power of attorney holder was examined instead of petitioner - trail court decreed - appellant court set aside the order of lower court - Revision - High court held that non-examination of petitioner is not fatal - examination of power of attorney holder her son with regard to bonafide need for his another brother is valid - not suffers from any defects - set aside the order of lower appellant court  came to wrong conclusion = 
Petition for Eviction =
During trial, first son of landlady was examined as P.W.1 and got marked
Exs.A1 to A3. Tenant examined himself as R.W.1 and got marked Exs.B1 to B7.   
6.      The trial Court by order dated 06.04.2006, allowed the eviction petition
on the ground of bonafide requirement pleaded by the landlady and negatived the
plea of willful default of payment of rents by the tenant.  Against the same,
the tenant filed R.A.No.180 of 2006, which was allowed by order dated 05.02.2008
and against the same, the present Civil Revision Petition is filed.=
In Ramkubai v. Hajarimal Dhokalchand Chandak (supra), it is observed as under:
"The Appellate Court was swayed away by the fact that the landlady herself did
not come into witness-box to support her claim.  What is not appreciated by the
Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for
whose benefit the business is to be set up, did come into the witness-box to
support the case of personal requirement."

        In Devi Pershad v. Rajava Desai (supra), it is observed as under:

        "13. The facts and circumstances of the present case are identical and the
observations made by the Supreme Court would directly meet the contentions 
raised by the petitioner. It may be noted that the landlady sought eviction of
the tenants on the ground that the petition schedule premises is required for
the purpose of business intended to be commenced by her sons.  The eldest son 
who is holding the General Power of Attorney on behalf of his mother was
examined as P.W.1 and he deposed as to the averments in the petition with
particular reference to the bona fide requirement.  Therefore, the Courts below
have rightly relied upon the evidence of P.W.1 and it must be held that the
finding recorded that the petitioner has successfully established the ground of
bona fide requirement cannot be said to be erroneous or without any basis."

13.        In view of above discussion and also in view of law laid down in above
Judgments relied on by counsel for petitioners, I am of the opinion that it is
not necessary that landlady should be examined, when her elder son, who is
looking after the affairs of the family, is examined.  The trial Court believed
the evidence of P.W.1.  Just because different view is possible, appellate Court
cannot reverse the well-considered judgment of the trial Court.
14.        I have perused the order passed by the Rent Controller and the view
taken by it is reasonable one, which does not require interference.  But the
appellate Court has taken a different view, even though view taken by the trial
Court is not erroneous, as such, same is liable to be set aside
        Accordingly, the Civil Revision Petition is allowed by setting aside order
dated 05.02.2008 in R.A.No.180 of 2006 passed by the Chief Judge, City Small
Causes Court, Hyderabad  and restore the eviction order dated 06.04.2006 in
R.C.No.333 of 2004 passed by the I Additional Rent Controller, Hyderabad.
However, the tenant is granted four (4) months time for vacating the suit
premises on the condition that he shall pay all arrears of rent and shall
continue to pay the existing rent for a period of four (4) months with an
undertaking that he shall not induct third parties into suit premises and also
undertakes to handover vacant and peaceful possession of suit premises to civil
revision petitioner/landlord at the end of four months period. There shall be no
order as to costs. 
 As a sequel, miscellaneous petitions, if any, pending in
this Civil Revision Petition, shall stand closed.

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 3439 OF 2008

Date:30-10-2013

Smt. G.Venkatamma (died) per L.R,G.Narasimha Reddy....  Petitioner      

Dr. Vijay Chandra Mathur.... Respondent

Counsel for the Petitioner: Sri D.Seshashayana Reddy

Counsel for the Respondent: Sri K.S.Murthy

>HEAD NOTE:  

?Cases referred

1 ALD-2004-1-241
2 LAWS (SC)-1999-8-162  
3 LAWS(APH)-2002-6-161/ALT-2002-5-710  
4 LAWS (DLH)-1981-2-11/DRJ-1981-2-138  

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 3439 OF 2008

ORDER:
               
        This Civil Revision Petition is directed against order dated 05.02.2008 in
R.A.No.180 of 2006 passed by the Chief Judge, City Small Causes Court,
Hyderabad, wherein the Appeal filed by the respondent herein under Section 20 of
the A.P. Buildings (Lease, Rent & Eviction) Act, 1960 (for brevity 'the Act')
was allowed by setting aside order dated 06.04.2006 in R.C.No.333 of 2004 passed
by the I Additional Rent Controller, Hyderabad.
2.      For the sake of convenience, the parties hereinafter will be referred to
as landlady and tenant.
3.      Brief facts which are necessary for disposal of the Civil Revision
Petition are as follows:
        Landlady filed eviction petition on the plea that she requires it for the
proposed business of her second son G.Raji Reddy.  The suit premises is a non-
residential premises and the tenant, who is a medical practitioner, admittedly,
running a clinic in it. The case of the landlady is that her second son is
unemployed and he has already gained experience in the shop of her first son and
therefore, he requires the suit premises to commence his own business in it and
therefore, he requires the suit premises to commence his own business for
running a general stores.  It is also pleaded that the tenant was not regular in
paying the rents.
4.      The tenant filed counter stating that he is running his clinic in the suit
premises since 35 years and he was always paying rents regularly and not
troubled the landlady.  It is also pleaded that the second son of the landlady
is having his own avocation and the landlady's plea that she requires the suit
premises for his business is not correct and the landlady has invented that plea
only for the purpose of evicting him to let out the premises for higher rents.
It is also stated that the landlady demanded him to enhance the rent from
Rs.650/- to Rs.1200/- per month, when he refused to enhance the rent, landlady
along with her sons demanded to vacate the premises, as such, he filed suit for
perpetual injunction against the landlady.   It is also pleaded that the
landlady and her sons have several non-residential properties and another non
residential premises has been vacated by the proprietor of Shakthi Electronics
and the same is available.
5.      During trial, first son of landlady was examined as P.W.1 and got marked
Exs.A1 to A3. Tenant examined himself as R.W.1 and got marked Exs.B1 to B7.   
6.      The trial Court by order dated 06.04.2006, allowed the eviction petition
on the ground of bonafide requirement pleaded by the landlady and negatived the
plea of willful default of payment of rents by the tenant.  Against the same,
the tenant filed R.A.No.180 of 2006, which was allowed by order dated 05.02.2008
and against the same, the present Civil Revision Petition is filed.
7.      Learned counsel appearing for the revision petitioner contends that the
Rent Controller, after considering pleadings, oral and documentary evidence
adduced on both sides, rightly allowed the eviction petition, but the appellate
Court set aside the same only on the ground that the landlady and second son of
the landlady were not examined.  He also contends that after the death of
husband of landlady, elder son of landlady is looking after the entire affairs
of the family and he is competent to speak about the affairs of the building.
It is common that after the death of head of family, elder son will lookafter
the affairs of the family and as such, he was rightly examined.  Landlady being
old, she was not examined herself.  When P.W.1 is competent to speak about the
affairs of the building, it cannot be said that non examination of second son of
landlady in respect of whom suit premises is sought for, can affect the case of
the landlady.   He would further contend that just because there is delay in
filing eviction petition after issuing notice to the tenant, it cannot be said
that the requirement of suit premises for the second son of landlady is not
bonafide.   He also contends that there is nothing to disbelieve the evidence of
P.W.1.  But the appellate Court erroneously set aside the well considered order
of the trial Court only on the ground of non examination of landlady and her
second son and rejected the plea of bonafide requirement.  It is also contended
that P.W.1 is doing rice business and STD booth adjacent to suit mulgi and the
suit premises is required for running general stores by the second son of
landlady.   In support of his contention, he relied on the following decisions:
        Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna1, Ramkubai v. Hajarimal  
Dhokalchand Chandak2, Devi Pershad v. Rajava Desai3 and Raj Bahadur v. Sushila
Devi Nigam4
8.      On the other hand, learned counsel appearing on behalf of the respondent
would contend that except examining P.W.1, no evidence is adduced on behalf of
the landlady to show that the premises was required for running business of
second son of landlady.  It is also contended that neither the person for whom
the premises is required nor the landlady is examined, as such, appellate Court
rightly held that the evidence is not convincing and on that ground allowed the
appeal filed by the tenant.  It is further contended that the appellate Court
appreciated the evidence and arrived at the finding, which cannot be disturbed
in the revision.
9.      Now, it has to be seen whether the landlady who filed eviction petition,
requires the suit premises for personal occupation of his second son for running
business?
10.      The elder son of landlady is examined himself as P.W.1, is already
running business in the adjacent shop of the suit mulgi. The trial Court
believed the evidence of P.W.1 and came to the conclusion that the second son of
the landlady was not carrying on the business in any other shop or doing the job
in any place, basing on which, ordered eviction.  P.W.1 clearly deposed that
landlady has got two sons, himself and G.Raji Reddy.  It is also deposed that
P.W.1 and landlady got evicted adjacent shop occupied by tenant Shakti
Electronics by filing Rent Control proceedings.   It is further deposed that
P.W.1 is doing business in that premises and now his younger brother, who has
gained experience, wants to commence his own business of general stores, as
such, landlady requires the suit premises for personal occupation of her second
son.
11.     The respondent/tenant was unable to show that the landlady is having other
non-residential premises and same is vacant.  Even according to tenant, there
are three mulgies, out of which, one mulgi is occupied by tenant, one by Shakti
Electronics, which was got evicted by landlady and in the said shop, P.W.1 is
running rice business and STD booth and in another shop i.e., suit premises,
R.W.1/tenant is running clinic.
12.     The evidence of P.W.1 can be believed because when already one shop is
evicted for one son by landlady, P.W.1 being elder son is running business, the
second son also is entitled for another shop for running his own business, for
which eviction is sought.  Therefore, the evidence of P.W.1 appears to be
natural, though the tenant has taken a plea that landlady is having other non-
residential premises, but the same was not proved.  When P.W.1 deposed himself
that he already started rice business in rice and STD booth, his younger brother
wants to start general stores business, that aspect was not considered by the
appellate Court in proper prospective.  The trial Court by considering the
evidence on both sides and admissions made by R.W.1 ordered eviction of the
tenant.  The appellate Court by taking an erroneous view only on the ground that
the landlady and her second son were not examined and set aside the well
considered order of eviction passed by the Rent Controller.
        In Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna(supra), it is held
as under:
                "Therefore, the only requirement for a person to come into the
witness box to speak in regard to any facts and circumstances of the case is
that he should be competent enough to testify i.e., to speak.  The competency as
contemplated is very wider in its connotation.  There is distinctive feature
between one who is said to be competent on behalf of the person to speak and
another how far and to what extent the person can speak.  These two aspects
cannot be mixed up to reject a person from entering the witness box. As long as
one holds proper authority under a Power of Attorney or otherwise, he is fully
competent to come as witness on behalf of the said party. The competency as 
provided for further gets extended under Section 120 of Evidence Act providing
that in any civil proceedings the husband or wife of a party to a suit shall be
a competent witness.  Therefore, it cannot be said that the Power of Attorney
holder cannot be said to be incompetent as witness on behalf of the
party/executant.... It is thus held answering the reference that a Power of
Attorney holder is a competent witness on behalf of the party/executant and
further that the effect and relevancy of such evidence has to be considered from
proper perspective on the facts and circumstances of each case."

In Ramkubai v. Hajarimal Dhokalchand Chandak (supra), it is observed as under:
"The Appellate Court was swayed away by the fact that the landlady herself did
not come into witness-box to support her claim.  What is not appreciated by the
Appellate Court is that her son Bhikchand who was also her G.P.A. holder and for
whose benefit the business is to be set up, did come into the witness-box to
support the case of personal requirement."

        In Devi Pershad v. Rajava Desai (supra), it is observed as under:

        "13. The facts and circumstances of the present case are identical and the
observations made by the Supreme Court would directly meet the contentions 
raised by the petitioner. It may be noted that the landlady sought eviction of
the tenants on the ground that the petition schedule premises is required for
the purpose of business intended to be commenced by her sons.  The eldest son 
who is holding the General Power of Attorney on behalf of his mother was
examined as P.W.1 and he deposed as to the averments in the petition with
particular reference to the bona fide requirement.  Therefore, the Courts below
have rightly relied upon the evidence of P.W.1 and it must be held that the
finding recorded that the petitioner has successfully established the ground of
bona fide requirement cannot be said to be erroneous or without any basis."

13.        In view of above discussion and also in view of law laid down in above
Judgments relied on by counsel for petitioners, I am of the opinion that it is
not necessary that landlady should be examined, when her elder son, who is
looking after the affairs of the family, is examined.  The trial Court believed
the evidence of P.W.1.  Just because different view is possible, appellate Court
cannot reverse the well-considered judgment of the trial Court.
14.        I have perused the order passed by the Rent Controller and the view
taken by it is reasonable one, which does not require interference.  But the
appellate Court has taken a different view, even though view taken by the trial
Court is not erroneous, as such, same is liable to be set aside
        Accordingly, the Civil Revision Petition is allowed by setting aside order
dated 05.02.2008 in R.A.No.180 of 2006 passed by the Chief Judge, City Small
Causes Court, Hyderabad  and restore the eviction order dated 06.04.2006 in
R.C.No.333 of 2004 passed by the I Additional Rent Controller, Hyderabad.
However, the tenant is granted four (4) months time for vacating the suit
premises on the condition that he shall pay all arrears of rent and shall
continue to pay the existing rent for a period of four (4) months with an
undertaking that he shall not induct third parties into suit premises and also
undertakes to handover vacant and peaceful possession of suit premises to civil
revision petitioner/landlord at the end of four months period. There shall be no
order as to costs. 
 As a sequel, miscellaneous petitions, if any, pending in
this Civil Revision Petition, shall stand closed.


_______________________  
A.RAJASHEKER REDDY, J    
dated:30-10-2013

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 = Narsing Prasad....Petitioner/Landlord Dinesh Mohanlal Pardhanani.... Respondent/tenant = published in judis.nic.in/judis_andhra/filename=10480

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.