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2001 DIGILAW 1275 (AP)

A. Sudhakar v. A. Sarveswar Rao

2001-10-13

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD Sri R. Narasimha reddy and Smt. Vijaya Lakshmi, the Counsel representing the respective parties. ( 2 ) THE unsuccessful tenant-5th respondent in R. C. No. 244/94 on the file of additional Rent Controller, Secunderabad, is the revision petitioner. The other tenants- respondents 1 to 4 in R. C. No. 244/94 are shown as respondents 2 to 5 in the civil revision petition and the landlord is the 1st respondent. The landlord filed RC no. 244/94 on the ground of obtaining alternative accommodation and also the tenants ceasing to occupy the premises. ( 3 ) THE parties are referred to as landlord and tenants for the purpose of convenience. ( 4 ) THE learned Rent Controller after examining PW1 and marking Exs. P1 to P6 and also RW1 to RW3 and Exs. R1 to R2 and after framing the points for consideration and appreciating both oral and documentary evidence had allowed the R. C. and aggrieved by the same one A. Sudhakar, impleaded as 5th respondent in R. C. No. 244/94, had preferred R. A. No. 302/96, which was dismissed and aggrieved by the same the said tenant had preferred the present civil revision petition and other tenants as specified supra are shown as respondents 2 to 5 in the present civil revision petition. The pleadings of the respective parties in the R. C. referring the parties as arrayed in the R. C. itself are follows: ( 5 ) THE petitioner is said to be the owner of the double sloreyed building nos. 3-4-315 and 336, situated at Tobacco bazar, Secunderabad. The premises originally belonged to father of the petitioner late Sri N. Viswanadham who died on 22-8-1986. During the life time of the father of the petitioner the premises was let out to the 1st respondent firm, the respondents 2 to 5 are the partners on a monthly rent of Rs. 175/- exclusive of electricity charges. The tenancy is month to month, commencing from 1st day of the month to last day of the same month. The 1 st respondent firm is said to have purchased the building bearing Nos. 3-4-375 and 376 situated at Tobacco Bazar, Secunderabad comprising of ground floor, first floor and 2 floors. 175/- exclusive of electricity charges. The tenancy is month to month, commencing from 1st day of the month to last day of the same month. The 1 st respondent firm is said to have purchased the building bearing Nos. 3-4-375 and 376 situated at Tobacco Bazar, Secunderabad comprising of ground floor, first floor and 2 floors. The 1st floor is in occupation of another tenant carrying on business under the name and style of devanand distributors The ground floor of the said building is in occupation of a tenant carrying on business under the name and style of pavan Textiles . The 2nd floor is said to be vacant which was occupied by another tenant. Thus respondents have secured alternative accommodation very near to the suit schedule premises. The respondents were said to have ceased to occupy the premises and kept the premises under lock and key. The petitioner got issued a notice dated 10-9-1994 calling upon the respondents to hand over the suit premises, the office copy of the letter addressed to the 5th respondent has been returned with the postal endorsement "continuously door locked. Hence returned to sender. " Thus the respondents ceased to occupy the suit premises. Eviction is sought on this ground. Respondents 1 to 4 filed their counter. They admitted that they have purchased the commercial building nearer to the suit premises bearing Nos. 3-4-375 and 376 situated at Tobacco Bazar, Secunderabad comprising of ground floor, first floor and second floor. They stated that the ground floor is occupied by the tenant by name govind Prasad and the first floor and second floors are occupied by other two tenants. They denied that the second floor was vacant and they have let out the same to another tenant recently. They stated that they did not obtain any alternative accommodation. The respondents denied that the premises is kept under lock and key since 1994. They stated that no notice was sent to them dated 10-9-1994 and that the registered letters addressed to the 1st respondent were returned with an endorsement "continuously door locked- notice returned to sender". The respondents 1 to 4 further stated that the business was going and the 5th respondent absented with effect from 24-9-1993. Then the 5th respondent started coming to the shop from 25-3-1994. The respondents 1 to 4 further stated that the business was going and the 5th respondent absented with effect from 24-9-1993. Then the 5th respondent started coming to the shop from 25-3-1994. On 29-4-1994 two constables came to the suit premises and enquired the 3rd respondent about the 5th respondent and his son Ravi Shankar stating that they were selling stolen goods. Thereupon the 3rd respondent informed the police that the 5th respondent might be selling the stolen goods. On account of 5th respondent, respondents 2 to 4 are dragged to the police station. Hence they have closed the shop for the time being. He stated that the respondents were summoned to Mahankali police station on 20-5-1994 as the 5th respondent has given complaint to the police stating that the respondents 3 and 4 have kept the shop under lock and key and respondents 1 to 4 stated that the 5th respondent has withdrawn huge amounts from the account and he has to pay to the firm a sum of Rs. 7. 51 lakhs and the matter was referred to arbitration of sri Y. Prabhakar, Arbitrator. The arbitration proceedings are pending as such the premises was kept closed and therefore the respondents are not liable to be evicted from the premises. These respondents are paying the rent regularly. The 5th respondent filed his counter. He also admitted the jural relationship. He stated that RC no. 368/77 was filed before Rent Controller, secunderabad and the same was allowed on 28-9-1983 and they preferred an appeal on the file of Chief Judge, City Small Causes court, Hyderabad in R. A. No. 205/83 and the appeal was allowed. However, the father of the petitioner preferred C. R. No. 3451/89 which is pending on the file of the Hon ble high Court of A. P. He admitted that respondents purchased premises bearing nos. 3-4-375 and 376, Tobacco Bazar, secunderabad which is very near to the suit schedule premises. He stated that the ground floor is occupied by one tenant by name Govind Prasad, He stated that they filed eviction petition against Govind Prasad and the petition was dismissed. He stated that they have not let out the second floor of the said building to another tenant. He stated that the first floor was occupied by Doulatram Baldevdas and he died and his sons are continuing the business. He stated that they have not let out the second floor of the said building to another tenant. He stated that the first floor was occupied by Doulatram Baldevdas and he died and his sons are continuing the business. The second floor is said to be occupied by M/s. Vishnu Distributors. The 5th respondent denied that they have ceased to occupy the premises. He stated that the respondents did not obtain any alternative accommodation. ( 6 ) ON the strength of these pleadings, the evidence was recorded by the learned rent Controller and had allowed the R. C. as specified supra and aggrieved by the same only one Sudhakar had R. A. No. 302/96 which was dismissed and aggrieved by the same the said party had preferred the present civil revision petition under Section 22 of a. P. Buildings (Lease, Rent and Eviction) control Act, 1950, in short hereinafter referred to as "act". ( 7 ) SRI R. Narasimha Reddy, the learned Counsel representing the revision petitioner had contended that the eviction of tenant on the ground of securing alternative accommodation without considering as to whether the other building is capable of meeting the requirement of the tenant on his vacating the disputed premises is not sustainable. The learned Counsel also had contended that in the present case as there were disputes between the parties, the matter was referred to a sole arbitrator and during the said period they could not transact any business and however since 1997 the revision petitioner is carrying on business to the exclusion of other partners and the revision petitioner had not parted with the possession of the building and he never ceased to occupy the building and hence the ingredients of the ground are not satisfied at all. The learned Counsel also had drawn my attention to the respective pleadings of the parties and also Exs. P1 to P6 and Exs. R1 and R2 and the evidence of PWI and RW1 to RW3. The learned counsel also had drawn my attention to the evidence of RW2, in particular. The learned counsel had further contended that both the courts below had totally erred in ordering eviction on such a ground. ( 8 ) SMT. P1 to P6 and Exs. R1 and R2 and the evidence of PWI and RW1 to RW3. The learned counsel also had drawn my attention to the evidence of RW2, in particular. The learned counsel had further contended that both the courts below had totally erred in ordering eviction on such a ground. ( 8 ) SMT. Vijaya Lakshmi, the learned counsel representing the 1st respondent- landlord had contended that the facts are not in dispute at all and the ground on which the eviction had been ordered is a sustainable one and the revision petitioner at the best is only a partner and the firm is not a tenant and the other tenants had not filed the revision and further the learned counsel had drawn my attention to the detailed discussion of both the Rent controller and also the appellate authority relating to this ground. The learned Counsel also had placed reliance on Sathaiah v. Smt. Savithri Bai, 1995 (2) ALT 693 , also duluchand Surana v. Pilli Laxmi Narayana, 1990 (1) ALT 189 . ( 9 ) THE jural relationship of landlord and tenant and the quantum of rent are not in dispute. The landlord had examined himself as PW1 and his case is that the tenants have purchased premises bearing nos. 3-4-375 and 376 Tobacco Bazar, secunderabad and this aspect is not disputed. It is no doubt the case of the tenants that the premises purchased by them is in occupation of their tenants. The Courts below had recorded a finding that the tenants had let out the purchased premises to their tenants only after their purchase. It may be relevant to note here Section 10 (2) (v) of the Act, which reads:"that the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause". It is also pertinent to note that the case of the landlord is that the tenants have ceased to occupy the premises in May, 1994 and this aspect also was spoken by PW1 in his evidence, which is not disputed by the tenants. In fact, it was specifically stated in the counter that they thought it advisable to close the shop for the time being. It may also be noted that since 20-5-1994 for sufficiently a long time, the premises has been kept under Jock and key. In fact, it was specifically stated in the counter that they thought it advisable to close the shop for the time being. It may also be noted that since 20-5-1994 for sufficiently a long time, the premises has been kept under Jock and key. But however, now one of the partners, the revision petitioner, contends that subsequent thereto he has been continuing the business. RW2 is said to be the arbitrator who had spoken to the fact of pendency of arbitration proceedings. RW2 was examined only to show that the tenants intend to start the business again afresh after settlement of arbitration proceedings. The explanation offered by the tenants is that the articles are still in the premises and just they kept the premises under lock and key since 20-5-1994 and hence it will not amount to "ceased to occupy" of the premises. The word "occupation" means occupation in the sense of actual user. In R. v, S. T. Pancras, 1877 (2) QBD 581 at 588, it was observed "occupation includes possession as its primary element but it also includes something more. Legal possession does not itself constitute an occupation. The owner of vacant house is in possession and may maintain trespass against any one who invades it, but as long as he leaves it vacant he is not in occupation nor is he an occupier. " in Amar Singh v. Ram Raksha, AIR 1972 pandh 383, while dealing with the words "ceased to occupy" under the East Punjab urban Rent Restriction Act, 1949 it was held that actual user of building is essential to constitute occupation and the tenant not opening the shop for 17 months had ceased to occupy it even if he had locked it with some articles inside. In fact, RW2 had clearly admitted that respondents 1, 3 and 4 in the R. C. C. have been working elsewhere and they are working under him and thus in view of the clear admissions made and also in the light of the evidence of PW1, RW1 to rw3, Exs. Pl to P6 and also Exs. R1 and r2, both the Courts below had recorded concurrent findings to the effect that the ground had been established. Pl to P6 and also Exs. R1 and r2, both the Courts below had recorded concurrent findings to the effect that the ground had been established. Hence while exercising the powers under Section 22 of the Act, I am not inclined to disturb the concurrent findings recorded by both the courts below on appreciation of both oral and documentary evidence. ( 10 ) ACCORDINGLY the civil revision petition fails and the same is dismissed. However, in the facts and circumstances of the case, the revision petitioner is granted four months time to vacate the premises. No order as to costs.