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Andhra High Court · body

2001 DIGILAW 1280 (AP)

Bondada Nookaratnam v. Penugonda Manikya Guptas

2001-10-13

P.S.NARAYANA

body2001
M. S. R. SUBRAHMANYAM, J. ( 1 ) THE learned Counsel representing the Revision Petitioners-landlords and Sri V. LN. G. K. Murthy, the learned Counsel representing the respondent-tenant. ( 2 ) THE present civil revision petition is filed under Section 22 of A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960, in short hereinafter referred to as "act ", as against an order RCA No. 31 of 1999, dated 19-4-2000 on the file of the appellate authority-Principal Senior Civil Judge, Kakinada, reversing the order in RCCNo. l of 1997 on the file of the [earned Rent Controller-District Munsif, Tuni. The eviction petition was filed on the following grounds: (I) wilful default in payment of rents, (2) bona fide requirement and (3) nuisance. The learned Rent Controller aller appreciating the evidence of PW 1 and RW1 and also Bx. A25 and Exs. B1 and B9 and the report of the Commissioner had arrived at a conclusion that the respondent-tenant committed wilful default and the petitioners-landlords arc entitled to the relief of eviction on the ground of bona fide requirement, But however, since there was no acceptable evidence relating to acts of nuisance in from of the shop by the respondent-tenant. Point No. 3 alone was answered in favour of the respondent-tenant and aggrieved by the same, the respondent-tenant filed RCA No. 31 of 1999 on the file of appellate authority- Principal Senior Civil Judge, Kakinada and the said appeal was allowed by an order dated 19-4-2000 and the petitioners-landlords aggrieved by the same had preferred the Civil Revision Petition. ( 3 ) THE facts in brief of the case arc as follows:- the petitioners are the absolute owners of the petition schedule shop and the respondent is a tenant in the said shop under the guise of rent letter dated 1-12-1991. As per the terms and conditions of the rent letter, the respondent agreed to vacate the schedule shop by 31-10-1992 and the respondent further agreed to pay the rent at the rate of Rs. 725/- per month payable by the first of succeeding month for the preceding month. The above two are the main conditions. The respondent knowing fully well that the lease period will be terminated by 31-10-1992 filed a suit OS No. 93 of 1992 on the file of DMC, Tuni and obtained ex pane injunction orders against the petitioners. 725/- per month payable by the first of succeeding month for the preceding month. The above two are the main conditions. The respondent knowing fully well that the lease period will be terminated by 31-10-1992 filed a suit OS No. 93 of 1992 on the file of DMC, Tuni and obtained ex pane injunction orders against the petitioners. The respondent was a chronic wilful defaulter in payment of monthly rents. During the lease period in between 1-12-1991 to 31-10-1992 the petitioners used to issue the receipt when the respondent paid the rents. After the period the respondent never offered the monthly rent and sending the same by money order. The petitioners used to collect those amounts subject to their rights and contentions. In page (3) of the petition averments, the petitioners showed the dates of payment of rents for the respective months asserting the respondent committed wilful default in payment of rents intentionally and on that ground alone, the respondent is liable to be evicted from the schedule shop. The respondent filed RCC 3 of 1996 for deposit of rents into the Court in October 1996 till today, but no amount was deposited into the Court. ( 4 ) THE petitioner further contend the petitioners 2 and 3 brothers depending on business. The petition schedule shop is situated in main road. Tuni facing to North side. On the Eastern side of the petition schedule shop the petitioners are running sports business. STD public telephone and another shop also belong to them. Actually that shop is very small and very narrow and it is not sufficient to run the sports business as there is no sufficient place to store sports material. In the similar manner on the Southern side of the petition schedule shop the petitioners are running a stationery and fancy shop in the same and style "sri Srinivasa Fancy Store;". The said shop is also very small and not enough to run the business smoothly as there is no place to arrange books, files and other stationery goods and fancy articles in a proper way. The petition schedule shop is required to the petitioners for proper accommodation of their shops and increase the business. The children of the petitioners 2 and 3 are growing up and they are also participating in the business. The petition schedule shop is required to the petitioners for proper accommodation of their shops and increase the business. The children of the petitioners 2 and 3 are growing up and they are also participating in the business. The shops in which the petitioners are doing their business is not sufficient accommodation and day by day it is becoming difficult to run the business in a narrow place. Thus the petition schedule shop is personally required to the petitioners. The respondent and his family is residing in Tuni and he is having own house in Tuni. Except this premises, the petitioners are not having any other building in Tuni. The respondent is running shoes and chappals business in the petition schedule shop and throwing unnecessary material and waste material before the petitioners shop and in the municipal drawn causing hardship and nuisance to the petitioners to run their business. Hence the petition for eviction. ( 5 ) THE counter averments of the respondent in brief are as follows: the petition averments are denied. The fact that the petitioners are the absolute owners of the petition schedule shop is admitted. The fact that the respondent is a tenant in the petition schedule shop is also admitted. The respondent contends, since very long time that is for about 20 or 25 years, the respondent is in occupation of the petition schedule shop as tenant. The rent letter dated 1-12-1991 is one of renewal to those of old ones. The petitioners are not entitled for the relief in the petition. The rent letter dated 1-12-1991 was executed only to suit the petitioners demands and to avoid stamp duty and registration. The respondent filed suit OS No. 193 of 1992 and it was decreed after full trial to protect his lawful rights. This Court has no jurisdiction to entertain this petition. ( 6 ) THE respondent contends that he used to pay the rents regularly. The petitioners intentionally dragged to receive certain rents to show that the respondent was irregular, but the fact is otherwise. As this respondent disagreed for heavy hike in the rent, the petitioners bore grudge against the respondent and trying to create false causes of action. The respondent never fell in arrears of rent at any time and never committed default much less wilful default in payment of rents. As this respondent disagreed for heavy hike in the rent, the petitioners bore grudge against the respondent and trying to create false causes of action. The respondent never fell in arrears of rent at any time and never committed default much less wilful default in payment of rents. The petitioners never received the rents under protest and they waived their right to get eviction on the plea of default, much less wilful default. The respondent used to send the rents by money order whereas the petitioner refused to receive the same and to issue receipt for the same. The respondent filed RCCNo. 3 of 1996 for deposit of rents under Section 8 (5) of the Act but did not deposit the same into Court as the Court ordered notice of the same to the respondent but not issued orders or challan directing this respondent to deposit the rents into Court. This respondent is depositing the amount into bank account and is ready to deposit the same into Court at any time as per the orders of the Court and it will not become wilful default on the part of the respondent. Actually one shop which was lent for medical shop was vacated by the owners and afterwards they leased out that shop for electricals. This clearly shows that they do not require any premises but only created for the purpose of this petition. The respondent never threw any waste material and never committed any nuisance. There is no cause of action for the petition. Hence, the petition is liable to be dismissed. ( 7 ) SRI M. S. R. Subrahamanyam, the learned Counsel representing the revision petitioners with all emphasis had contended that the order of the learned Rent Controller is well considered order and the appellate authority had totally erred in reversing the same. The learned Counsel also had pointed out that even though the respondent-tenant filed application under Section 8 (5) of the Act, the rents were not deposited and it was also contended that after the disposal of the RCC only the deposit was made. The learned Counsel had pointed out that the findings of the Rent Controller relating to wilful default and also bona fide requirement are clear findings based on the material available on record coupled with the report of the Commissioner. The learned Counsel had pointed out that the findings of the Rent Controller relating to wilful default and also bona fide requirement are clear findings based on the material available on record coupled with the report of the Commissioner. The learned Counsel also had drawn my attention to oral and documentary evidence adduced on behalf of the petitioners and also had emphasised on Exs. A23, A14, A4 and also the report of the Commissioner. The learned Counsel had taken me through the impugned order, the order of the appellate authority and had pointed out that the total approach of the appellate authority in paragraphs 15 to 24 is erroneous. The learned Counsel for the petitioners also had contended that even if deposit was not made RCC No. 1of 1997 which was filed on 27-2-1997, the continuous non-payment or non-deposit of rents for sueh a long period will definitely amount to wilful default. The learned Counsel also had contended that failure to follow the procedure under Section 8 (5) of the Act will automatically constitute wilful default. The learned Counsel also had placed reliance on Ramjidad and another v. Rambabu and others, (2000) 9 SCC 329 , M/s. Shaw Wallace and Company Limited v. Govindas Purushotham Das, 2001 (3) ALD 9 (SC) = AIR 2001 SC 1387 , B. Ataullah v. K. Nisar Ahmed, 2001 (5) ALD 517 , Jagat Prasad v. District Judge, Kanpur and others, (1995)1 SCC Supp. 318, Hari Prasad Badruka v. Tellukunta Laxmi andothers, 2000 (1) ALT 551 and Kamalabai v. E. Rajeswari, 1997 (1) ALT 797 . ( 8 ) SRI V. LN. G. K. Murthy, the learned Counsel representing the respondent-tenant had taken me through the findings of the appellate authority, both on Point Nos. 1 and 2 and had submitted that the reasoning of the appellate authority is clear and categorical while arriving at the conclusion that the respondent had not committed wilful default and also the revision petitioners do not in fact require the schedule premises bona fide and the learned Counsel also had pointed out the conduct of the parties and also the scries of events which clearly go to show that the appellate authority is justified in reversing the order of eviction made by the learned Rent Controller. The learned Counsel for the respondent-tenant also had drawn may attention to the different dates and also to the pleadings of the respective parties and had contended that the pleas raised by the revision petitioners and also the evidence let in this regard are very vague and an order of eviction cannot be made on the strength of such material. The learned Counsel also had pointed out that PW1, who is the 3rd petitioner had spoken to a different business being run by the brothers whereas the pleading is as though it is for family business. The learned Counsel also had contended that as far as bona fide requirement is concerned, the pleadings and the evidence available on record clearly go to show that it is not a case falling under Section 10 (3) (a) of the Act, but at the best it may be a case falling under Section 10 (3) (c) of the Act. The learned Counsel also had submitted that in the case of additional accommodation, the plea should be specific and for which business the expansion or additional accommodation is necessary also should be clear. The learned Counsel also had contended that it is in evidence that on either side of the premises, the landlords have been running different types of businesses and in the light of such pleadings and evidence, an order of eviction cannot be made. The learned Counsel also had drawn my attention to the decision of Apex Court in Jermons v. Aliammal, AIR 1999 SC 3041 , and especially had referred to paras 32 and 35 of the said judgment. The learned Counsel also had contended that as on the date of eviction petition, since he was not in arrears the cause of action vanishes and the ground of wilful be no longer available. The learned Counsel also had stressed on the periods of default and had contended that the respondent was unable to deposit the rents till orders had been made in the RCC filed by him seeking permission to deposit rents. The learned Counsel also had placed reliance on Dakia v. Anjani, AIR 1996 SC 383 . ( 9 ) THE appellate authority had observed that Exs. A2, A13 and A15 only show that they relate to particular months and had discussed about Exs. The learned Counsel also had placed reliance on Dakia v. Anjani, AIR 1996 SC 383 . ( 9 ) THE appellate authority had observed that Exs. A2, A13 and A15 only show that they relate to particular months and had discussed about Exs. A14, A3, A4, A9, A10, A13 also, but had arrived at a conclusion that after the final orders are passed in RCC No. 3 of 1996, in the application filed by the respondent-tenant under Section 8 (5) of the Act to deposit rents, the arrears had been deposited. It was also observed by the appellate authority that there is no evidence to show that the respondent-tenant at any point of item prior to the expiry of the lease period covered under Ex. A23 i. e. , 31-10-1992 made delayed payment of rents for the schedule premises. The learned appellate authority also had made certain observations relating to OS No. 193 of 1992, a suit filed by the respondent-tenant and on the aspect of bona fide requirement it was observed that the evidence on record adduced by the revision petitioners-landlords is not helpful to come to any conclusion as to whether they have intended to expand the business using the schedule shop room. It was also observed that 3rd petitioner alone was examined and 2nd petitioner had not chosen to enter witness box to state about his personal requirement. However, a perusal of the pleadings by the revision petitioners clearly go to show how there is delay in payment of rents even commencing from December, 1992 upto 1996. All those details have been narrated in paragraphs 6 (a) to (1 ). May be that the respondent-tenant was in possession of the property even prior to the rent letter. But however when the rent letter was marked and Ex. A23, the parties are bound by the conditions and the important provisions therein are that the respondent agreed to vacate the shop by 31-10-1992 and the respondent agreed to pay the rent at the rate of Rs. 725/- per month, payable on the first of succeeding month for the preceding month. It is not in dispute that the agreed rent to the petition schedule property is Rs. 125/ -. When the execution of Ex. A23 is admitted, it is needless to say that the parties are bound by the terms and conditions specified therein. 725/- per month, payable on the first of succeeding month for the preceding month. It is not in dispute that the agreed rent to the petition schedule property is Rs. 125/ -. When the execution of Ex. A23 is admitted, it is needless to say that the parties are bound by the terms and conditions specified therein. It is pertinent to note that the respondent-tenant had filed OS No. 193 of 1992 against the petitioners on the file of Junior Civil Judge, Tuni for permanent injunction wherein the petitioners specifically pleaded in the written statement about the existence of Ex. A23 and also the conditions therein and the wilful default committed by the respondent-tenant after the expiry of the lease. PW1 in fact had spoken to all these details in his evidence. RW1 also has admitted that for certain months he had not paid the rents within the time as stipulated in Ex. A23. The receipt of rents under Exs. A2 to A15, money order coupons of respective months, is not in dispute. But however the rents were not paid under Exs. A2 to A 15 within the time. Exs. A2, A3, A5 and A 11 do not contain any dates. But however, as seen from Ex. A4, the rent for the month of September, 1994 was sent on 28-10-1994 and as seen from Ex. A14, the rent for the month of May, 1994 was sent on 20-6-1994. Hence it is clear that the payment of rents had not been made within time as agreed between the parties. The respondent-tenant tiled RCC No. 3 of 1996 under Section 8 (5) of the Act to deposit rents and the same was allowed only August, 1998 and till then the respondent-tenant had not deposited any rents. The case of the respondent-tenant is that he had opened Bank account in his name and had been regularly depositing rents into the Bank account and Ex. B6 is the Passbook. It is also pertinent to note that even such deposits made in Ex. B6 for certain months appear to be bevond time and hence all these circumstances clearly got to show that the respondent-tenant has been highly irregular in payment of rents. But however now the question is whether this default is wilful default or not within the meaning of the Act. B6 for certain months appear to be bevond time and hence all these circumstances clearly got to show that the respondent-tenant has been highly irregular in payment of rents. But however now the question is whether this default is wilful default or not within the meaning of the Act. In the decision referred (supra), where the tenant immediately on receipt of demand notice had sent entire amount under default before filing the eviction petition it was held by the Apex Court that there is no wilful default. In S. Simdaram v. R. Pattabhiram, AIR 1985 SC 582 = 1985 (2) SCR 643 , the Apex Court had made an attempt to define what is the meaning of wilful default. By Ex. A23 dated 1-12-1991 the respondent-tenant agreed to pay monthly rent of Rs. 750/- by first of the succeeding month and the lease period expired by 31-10-1992. It is pertinent to note that the respondent-tenant filed OS No. 193 of 1992 on the file of District Munsif, Tuni for permanent injunction restraining the landlords from interfering with his possession and a specific stand had been taken by the landlords that the respondent-tenant has been committing wilful default in payment of rents and even after the expiry of the time fixed under Ex. A23, the respondent-tenant failed to deposit the rents due by him within 15 days after the expiry of the said time and the rents under Exs. A14, A4 and B1 were paid beyond time and the respondent-ten ant had not paid the rents from the month of September, 1996 till he had deposited the arrears at one time after disposal of RCC No. 1 of 1997. The respondent-tenant had filed RCC No. 3 of 1996 under Section 8 (5) of the Act by issuing a registered notice Ex. A16 dated 27-9-1996. In fact. RW1 had admitted in his cross-examination as follows: "it is true I have not sent the rent along with Ex. A16. I have not filed any petition to deposit rent pending disposal of RCC No. 3 of 1996. I have not offered to pay the rents from the date of filing RCC No. 3 of 1996. I have not informed the petitioners about the deposit of rents into Court. A16. I have not filed any petition to deposit rent pending disposal of RCC No. 3 of 1996. I have not offered to pay the rents from the date of filing RCC No. 3 of 1996. I have not informed the petitioners about the deposit of rents into Court. " this conduct of the respondent-tenant clearly goes to show that he had failed to pay or deposit rents in time as required bylaw and even subsequent to the filing of the eviction petition it is not in dispute that the tenant has been continuing the same attitude by not paying the rents. But the explanation given by him is that unless permission is given by the learned Rent Controller to deposit rents such deposit cannot be made. However, the subsequent default during the pendency of the proceedings had not been brought on record in accordance with the method known to law though the said fact may not be in dispute. Apart from this aspect of the matter. Section 10 (3) (a) of the Act dealing with bona fide personal requirement and Section 10 (3) (c) of the Act dealing with additional accommodation are two different grounds. Though the eviction petition was filed under Section 10 (3) (a) of the Act on the basis of the pleadings and also the evidence let in by the parties, the ground appears to be one of additional accommodation falling under Section 10 (3xc) and not under Section 10 (3xa) of the Act. In the decision referred (supra), the Apex Court while dealing with Sections 10 (3) (a) and 10 (3) (c) of Tamil Nadu Buildings (Lease and Rent) Control Act 1960 was pleased to observe: now, we may profitably refer to Section io (3) (c) and the provisos thereto to notice as to what is required to be proved by a landlord thereunder. Section I0 (3) (c) is as follows: "10 (3) (c ). A landlord who is occupying only a part of a building whether residential or non-residential may, notwithstanding anything contained in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be. Provided that in the case of an application under clause (c), the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord: Provided further that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may be extend such time so as not to exceed three months in the aggregate. " on an analysis of these provisions the following points emerge: (1) The provisions of clause (c) have overriding effect over clause (a); (2) clause (c) applies, to a case where, (i) the landlord is occupying only a part of building:, (ii) the tenant is occupying the whole or any portion of the remaining part of the building; (iii) the landlord requires additional accommodation for residential or for non-residential purposes of a business which he is carrying on: (iv) the landlord is seeking an order from the Rent Controller directing the landlord be put in possession of that portion or part of the building which is in possession of the tenant; (3) if the landlord makes out a case under clause (c) the Controller has to evaluate the hardship that will be caused to the tenant if he is evicted from the portion in his occupation and the advantage that will be gained by the landlord: if he is satisfied that the hardship to the tenant will outweigh the advantage to the landlord, the Controller has to reject the application for eviction of tenant; and (4) in the event of the Controller ordering eviction he is empowered to give the tenant a reasonable time for putting the landlord in possession of that portion or part of the building of which eviction is ordered and to extend the same from time to time but not exceeding three months. Thus it is clear that the requirements under Section 10 (3) (a) of the Act are different when compared to Section 10 (3) (c) of the Act. Thus it is clear that the requirements under Section 10 (3) (a) of the Act are different when compared to Section 10 (3) (c) of the Act. It is no doubt true that in IA No. 661 of 1998 in RCC No. 1 of 1998, an Advocate-Commissioner was appointed to note down the physical features of the disputed shops and the learned Commissioner had observed as follows:- there are six shops existing on the ground floor among which the 1st and 3rd shops are in occupation of the respondent. In the 1st shop there is STD Public Telephone both and SS sports are carrying on by the petitioners and the measurements of the said 1 st shop are 5 feet width at entrance and the measurement of the said 1st shop are 5 feet width at entrance and a length of 19 feet 10 inches and at cash counter is it only 3 feet excluding the cash counter and two wooden shelf s are fixed on either sides of the wall and the width in between those two shelf s is 4 feet and the said two shelf s are fully packed with books, sports materials etc. , upto the roof, and on the floor also the sports articles like carom boards etc. , were kept and the vacant place for moving in the said shop is only one feet width and one has to move in to the shop for ingress and egress only through that on feet width place and it is very congested and causing much inconvenience. Some of the sports articles like bats etc. , wee hanged to the ceiling with ropes. There is no separate room or convenience to the public to talk in phone and no provision for privacy and noise of vehicles, public etc. , on the road will cause much inconvenience to the customers of the said STD booth and the customers has to sit only outside of the shop and there is way from shop No. 1 to shop No. 3. Some of the books in shelf s of shop No. 1 were party damaged due to white ants. There is one Tube light and Fan are in existence. The second shop is in occupation of the respondent and he is carrying on business under the name and style. Some of the books in shelf s of shop No. 1 were party damaged due to white ants. There is one Tube light and Fan are in existence. The second shop is in occupation of the respondent and he is carrying on business under the name and style. "mamatha Shoe Stores" and there is no way except towards main Road and measurements of the respondent s shop is width at entrance is 9 feet 6 inches and length of the shop is 19 feet 9 inches and there is one glass showcase and shelfs on three sides. There are 8 chairs in the shop for customers and 6 tube lights and 2 fans. There is 6 feet width vacant place in the respondent s shop excluding the showcases and chairs. The ceiling at shutters was partly damaged. The 3rd shop is in occupation of petitioners under the name and style "sri Srinivasa Fancy Stores" and length of the said shop is 16 feet 7 inches and width is 6 feet 9 inches at entrance (towards road) two wooden shelfs were fixed to either side of the walls up to the roof and fully packed with books and fancy goods. On ground also books and other stationery were kept and the width for ingress and egress to the shop is only one feet and it is causing much inconvenience to move the shop the width in-between the shelfs is 4 feet 7 inches. The shop is very congested. There is no possibility to customers to sit inside shop No. 1 and 3 due to lack of place. There is one tube light and one fan in the shop. In shop No. 4 there is "people Shoe Marts" is situated and there is no other way except entrance and the width of the shop is 9 feet and the length is 17 feet 10 inches. In shop No. 5 there is "jain Electricals" is situated and there is no other way except entrance and the width of the shop is 8 feet 11 inches and length is 17 feet 10 inches. In shop No. 6 there is "sri Venkateswara Gunturu Chenetha Vastralaya" is situated and there is no other way except entrance and the width of the shop is 8 feet and length is 17 feet 5 inches". In shop No. 6 there is "sri Venkateswara Gunturu Chenetha Vastralaya" is situated and there is no other way except entrance and the width of the shop is 8 feet and length is 17 feet 5 inches". As already observed supra, the ground of wilful default based on subsequent events during the pendency of the litigation was not in fact brought on record in accordance with the modes recognised by law. Further more, PW1, the 3rd petitioner alone was examined as a witness and though it is the case of the revision petitioners that the schedule mentioned premises is needed for the requirement of the 2nd petitioner also, the 2nd petitioner was not examined. It is no doubt true that the pleading are to be liberally construed and hence the need of the family has to be understood as the need of both the brothers. But it is in evidence that they are running separate business and separate type of business in separate shops. It is also pertinent to note that as already observed the ground of bona fide requirement stands on a different footing when compared to the ground of additional accommodation and what had been in fact pleaded and also established by adducing some evidence is only additional accommodation and not bona fide requirement. As already observed apart from the evidence of PW1, the report of the Commissioner is available and the other revision petitioners were not examined. In the light of the above discussion, I am of the considered opinion that the matter has to be remitted back to the appellate authority to give opportunity to both the parties to let in further evidence relating to the grounds of eviction and also the subsequent events during the pendency of the proceedings and dispose of the same in accordance with law. ( 10 ) THE civil revision petition is accordingly allowed and the matter is remanded back to the appellate authority for the purposes indicated above. However, in the facts an circumstances of the case, no order as to costs.