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2001 DIGILAW 1291 (AP)

Gopisetty Shankaraiah v. RAVI CONSTRUCTION COMPANY, BANGALORE

2001-10-16

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD the learned Counsel on record and perused the material available on record. ( 2 ) THE revision petition is filed under Section 22 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 as against the reversing judgement made in RA No. 260 of 1995 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad. ( 3 ) ORIGINALLY, RC No. 50 of 1992 on the file of the Principal Rent Controller, Secunderabad was filed by one Gopishetty Shankaraiah, who died pending the RC and petitioners 2 to 5 were added as legal representatives of the said Shankaraiah in IA No. 430 of 1993. The eviction petition was filed by the revision petitioners-land lords on the grounds of wilful default and also bona fide requirement. The Court of first instance after appreciating the evidence of PW1, PW2 and RW1, RW2 and also Ex. P1 to P8 and Ex. R1 to R15 came to the conclusion that the landlords are entitled to the relief on both the grounds. Tenants, aggrieved by the same, had preferred RA No. 260 of 1995 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad which was allowed by the appellate authority by order dated 3-9-1989. Aggrieved by the same, the landlords had preferred the present civil revision petition. ( 4 ) THE pleadings of the respective parties are as follows: "the first respondent is the tenant of the first petitioner for the last 14 years in the premises bearing 1-5-43 situated at General Bazar, Secunderabad. The respondents are carrying on business in the said mulgi in the name of first respondent. The monthly rent is Rs. 400/ -. The respondents are chronic wilful defaulters in payment of rents and the last rent paid by the respondents was on 25-11-1991 for the month of October, 1991. Thereafter the respondents failed to pay the rents for the months of November, 1991 onwards. The respondents have committed default in payment of rents for the months from November and December 1991 to January and February 1992 amounting to Rs. 1,600/- The petition schedule mulgi is required for the commencement of business of silver ornaments and articles by the petitioner s grandson G. Ajay Kumar. The respondents have committed default in payment of rents for the months from November and December 1991 to January and February 1992 amounting to Rs. 1,600/- The petition schedule mulgi is required for the commencement of business of silver ornaments and articles by the petitioner s grandson G. Ajay Kumar. Hence this petition is filed for eviction of the respondent on the ground of witful default and personal requirement. ( 5 ) THE respondents 1 to 6 filed their counters denying some of the allegations in the petition. The respondent No. 7 was called absent and he was set ex parte. The contents of the counter of the respondents 1 to 6 are as follows: the respondents never committed wilful default in payment of rents. The first petitioner has been refusing to receive the rent sent from November 1991 onwards by registered post. After refusal of Money Order, the respondents issued a notice calling upon the petitioner to specify a Bank and the said notice was refused. Subsequently, money orders sent from November, 1991 to March, 1992 were accepted by the first petitioner. The first petitioner alone is responsible for the accumulation of the rents if any. Amount of Rs. 800/- by way of cheque dated 18-1-1992 was paid towards the rent for November and December, 1991 and the first petitioner refused to receive the said cheque. Again the rent for the months of November and December, 1991 was tendered by way of cheque dated 5-2-1992 and the same was refused. Again an amount of Rs. 1,200/- towards the rent for the months of November, 1991 to January 1992 was sent through his Advocate letter dated 15-3-1992 and the same letter was also refused. Later an amount of Rs. 2,000/-was sent by money order towards the rent from November 1991 to March, 1992 and the said money order was received on 3-4-1992. The first petitioner received Rs. 400/- towards the rent for the month of April, 1992 on 4-5-1992 through money order and he also received the rent for the month of May, 1992 on 5-6-1992 and the rent for the months of June, 1992 on 4-7-1992. The first petitioner refused to receive the rent for the month of July, 1992. Therefore, the accumulation of rent, if any, is only due to conduct of the first petitioner. The requirement of the first petitioner is not bona fide. The first petitioner refused to receive the rent for the month of July, 1992. Therefore, the accumulation of rent, if any, is only due to conduct of the first petitioner. The requirement of the first petitioner is not bona fide. The ground of self-occupation has been created only for enhancement of the rent. The first petitioner is in personal occupation of his own mulgi in Tobacco Bazar and number of non-residential premises of his own are in personal occupation of the petitioner No. 1 and therefore the petitioners are not entitled to maintain this petition on the ground of self occupation". ( 6 ) AS already stated supra, during the pendency of the RC I st petitioner died and his legal representatives were brought on record and they have been prosecuting the litigation. Sri Y. Rama Rao learned Counsel representing the revision petitioners-land lords had contended that whole approach of the appellate authority in reversing the well-considered order of the Rent Controller is totally unsustainable. Learned Counsel also had contended that the finding of the appellate authority that the respondents had not committed wilful default in payment of the rents from November, 1991 onwards cannot be sustained, since the respondents paid the amounts on 3-4-1992 after filing of the eviction petition and hence mere subsequent payment during the pendency of the eviction petition will not protect the respondents-tenants. Learned Counsel also had contended that the respondents had failed to prove that they have send rent by way of cheque before filing the eviction petition since they did not file the return into the Court. Learned Counsel also had contended that the respondents had not proved Ex. B4. However, it was contended that bona fide personal requirement is amply established by the evidence of PW1 and PW2 coupled with the documentary evidence, in particular Ex. P7, by virtue of which it is established that the grandson of the of the 1st petitioner PW2 had undergone training in gold and silver ornaments. However, the learned Counsel representing the respondents-tenants had drawn my attention to para 8 where the points for consideration had been framed by the appellate authority and also paras 9 and 12 and had contended that the reasons given by the appellate authority in reversing the order of the Rent Controller are well founded and such findings need not be interfered with in the revision. ( 7 ) IT is not in dispute that the 1st petitioner was the owner of the premises in question and after his death the other petitioners became absolute owners and respondents 2 to 6 have been carrying on business in the name of the 1 st respondent in the said premises on monthly rents of Rs. 400/ -. The contention of the petitioners is that the respondents committed wilful default in payment of rents from November and December 1991 to January and February, 1992 and the contention of the respondents is that they had tendered the rents to the 1st petitioner and the 1st petitioner refused to receive the rents and they had issued notice calling upon him to specify a bank to enable them to deposit the rents into his account and even after receipt of notice since the 1st petitioner had not given any reply, then they had remitted the rents by way of money order and the same was accepted by the 1 st petitioner and hence there are no arrears of rents. The rent was received by the 1st petitioner on 3-4-1992. In the counter also the respondents pleaded that they had remitted the rent for the months of November, 1991 to March, 1992 by money order dated 3-4-1992 and the same was received on 3-4-1992 and the eviction petition was filed on 27-3-1992. Hence, the rent from November, 1991 to March, 1992, according to the respondents, was paid on 3-4-1992 i. e. , subsequent to filing of the eviction petition and hence it can be said that the rent was not tendered within time and that was the finding recorded even by the Rent Controller after appreciating both the oral and documentary evidence. Apart from this, there is no evidence to show that the respondents had sent the cheque towards the rents for November and December, 1991 and hence in the light of the evidence of PW1 in this regard, the appellate authority reversing the finding relating wilful default observing that by the date of filing of the eviction petition the rents were received by the landlords cannot be sustained. ( 8 ) AS far as the bona fide personal requirement is concerned, PW1 himself had deposed in his evidence that the petition schedule premises is required for ?w2 for carrying on gold and silver business and Ex. ( 8 ) AS far as the bona fide personal requirement is concerned, PW1 himself had deposed in his evidence that the petition schedule premises is required for ?w2 for carrying on gold and silver business and Ex. P7 is the certificate showing that he got experience in gold and silver business and PW2 had deposed that he is an educated unemployee and the suit mulgi is required for him for running business. Though RW1 had deposed in his evidence that the petitioners have three other mulgies, but be had not furnished particulars or details of those mulgies. In the light of the evidence of PW1, PW2 and RW1, RW2 and Ex. PV, it is clear that the bona fide personal requirement of revision petitioners-landlords had been established. ( 9 ) IN J. R. Ramesh Kumar @ Rameshji v. N. Prabhakar Rao, 2001 (1) RCR 277, it was held that the right of the landlord to have sufficient accommodation is a matter of fundamental right. In B. Ataullah v. Nisar Ahmed, 2001 (5) ALD 517 = 2001 (5) ALT 103 , it was held that non-mention of details of requirement in notice and pleadings in the case of bona fide requirement is not a ground to reject the relief of eviction of tenant when it is supported by evidence. ( 10 ) AS already stated supra, in the light of the evidence of PW1, PW2 coupled with Ex. P7, I am satisfied that the revision petitioners-landlords had established the ground of bona fide personal requirement and the appellate authority had reversed the well considered order of the learned Rent Controller on this ground on certain unsustainable reasons. ( 11 ) FOR the reasons recorded above. Iam satisfied that the impugned order of the appellate authority made in RA No. 260 of 1995 is liable to be set aside and the order of the learned Rent Controller in RC No. 59 of 1992 is liable to be restored. Hence, the impugned order in RA No. 260 of 1995 is hereby set aside and the CRP is allowed. However, in view of the facts and circumstances of the case, the respondents-tenants are granted four months time to vacate the petition schedule premises. No order as to costs.