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Andhra High Court · body

2001 DIGILAW 1510 (AP)

Vemana Kumar Babu v. Kodamati Jaganmohan Rao

2001-11-21

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE unsuccessful landlord in both the Courts below is the revision petitioner. The landlord filed R. C. C. No. 97/ 86 on the file of the Rent Controller-Principal district Munsif, Rajahmundry for the relief of eviction on the ground of bona fide requirement. As against the judgment in r. C. C. No. 97/86, R. C. A. No. 82/95 was filed which was dismissed and as against the same, the landlord filed C. R. P. No. 4353/98. Likewise, the landlord filed R. C. C. No. 1297 87 under Section 4 of A. P. Buildings (Lease, rent and Eviction) Control Act, 1960, against which R. C. A. No. 83/95 was filed before the appellate authority and the appellate authority had decided both the matters by a common order dated 4-8-1988 and aggrieved by the said orders, as already stated (supra), C. R. P. No. 4353/98 was filed as against the judgment in R. C. A. No. 82/95 and C. R. P. No. 4415/98 is filed against the order in R. C. A. No. 83/95. Thus, the unsuccessful landlord in both the Courts below is assailing the orders made in the aforesaid matters by both the Courts below. ( 2 ) THE pleadings of the parties in r. C. C. No. 97/86 are as follows:- the petitioner is the owner of the petition schedule premises. Respondent took the schedule premises from the petitioner on 1-11-1981 on a monthly rent of Rs. 230/ -. Petitioner s father purchased the petition schedule premises in the name of the petitioner with a view to provide livelihood. There is another shop which was given to elder brother of the petitioner in which the family trade business is purchase and sale of cloth is being carried since several years. After the petitioner completed his studies, his father advised him to gain experience in cloth business and for that the petitioner worked in cloth shop of his brother. Petitioner leased out the schedule premises to the respondent with a specific understanding that the schedule premises should be vacated and handed over to him by 1-11-1986. Inspite of the requests of the petitioner, the respondent has not vacated the schedule premises. Petitioner is in requirement of the shop to set up his business and particularly in view of the difficulty and inconvenience he experienced in continuing with his brother. Inspite of the requests of the petitioner, the respondent has not vacated the schedule premises. Petitioner is in requirement of the shop to set up his business and particularly in view of the difficulty and inconvenience he experienced in continuing with his brother. The petitioner got issued lawyer s notice dated 26-7-1986 requesting the respondent to vacate the premises by 1-11-1986 and on that the respondent came to the petitioner and offered to pay the rent at the rate of Rs. 1000/-p. m. , and a pagidi of Rs. 30,000/- provided the lease was extended for another five years. But the petitioner did not agree for the same as he was in requirement of the premises to start his business. On that the respondent declined to vacate the schedule premises and also challenged the petitioner that how he could get the eviction of the respondent. Petitioner has no other non-residential building belonging to him at Rajahmundry. Petitioner belongs to a trading family and he has no other avocation for means of livelihood except by doing the cloth business and he is in dire need of starting the cloth business of his own in the schedule premises. Respondent is having his own shop in the main road and having separate money lending business. Therefore the petitioner needs the premises for his bona fide requirement. ( 3 ) THE respondent had filed a counter to the following effect: the respondent submits that he is the tenant of non-residential premises bearing d. No. 9-20-110, Rajahmundry Municipality, rajahmundry on a monthly rent of Rs. 230/- and he is tenant of the schedule premises under a registered lease deed dated 9-10-1981 duly executed by both the petitioner and respondent and got registered the same on 7-11-1981 for a period of five years commencing from 1-11-1981 to 31-10-1986 and even before the expiry of the lease period, petitioner got issued notice to the respondent dated, 26-7-1986 for which the respondent sent a reply dated, 4-8-1986. The respondent submits that when he tendered rent for October, 1986 on 3-11-1986 and petitioner received the same on 5-11-1986 and also received the rent for October, 1986. The respondent submits that when he tendered rent for October, 1986 on 3-11-1986 and petitioner received the same on 5-11-1986 and also received the rent for October, 1986. Thereafter, the respondent tendered the rent for October, 1986 on 1-12-1986 is person and again the petitioner refused to receive the same and it was sent through money order dated 2-12-1986 and the M. O. was also returned and on that the respondent issued notice dated, 13-12-1986 calling upon the petitioner to furnish the bank account to deposit the rents and the petitioner received the said notice but he did not give any reply. On that the respondent again sent the amount through M. O. on 28-12-1986 and it was also refused. The respondent filed r. C. C. No. 9/87 on the file of Rent Controller, rajahmundry and started depositing the rents into the Court. The contention of the petitioner that his father purchased the schedule premises with a view to provide livelihood to him is false. The contention of the petitioner that there is another shop which is given to his elder brother and in which the family trade is being carried on is not correct. In the said premises they are carrying on the joint family business and it is not the separate business of the brother of the petitioner. The petitioner s family possessed and owns a shop in Mahatma gandhi Complex and it is suppressed in the petition. The contention of the petitioner that after completion of his studies, his father advised to gain experience in cloth business and under those circumstances the schedule property was leased to the respondent for a period of five years is not correct. The respondent submits that there was an understanding between the parties that after expiry of five years lease period, the lease was to be extended for another five years on fresh terms and conditions. The allegation that the petitioner requested the respondent to vacate the premises as he wanted to set up his own business is not correct. The only demand made by the petitioner was for enhancement of rent. Petitioner got issued notice dated 26-7-1986 for which the respondent gave reply dated 4-8-1986. The allegation that after receiving notice dated 26-7-1986 the respondent approached the petitioner and offered pagidi of Rs. 30,000/- and rent of rs. The only demand made by the petitioner was for enhancement of rent. Petitioner got issued notice dated 26-7-1986 for which the respondent gave reply dated 4-8-1986. The allegation that after receiving notice dated 26-7-1986 the respondent approached the petitioner and offered pagidi of Rs. 30,000/- and rent of rs. 1000/- per month provided that the lease is extended for another five years is false. On the other hand the petitioner himself approached the respondent and agreed to extend the lease for another five years if the respondent pays the rent of Rs. 1000/- and pagidi of Rs. 30,000/- and for that the respondent refused. Therefore the petition is filed on false grounds. The allegation that the petitioner has no other non-residential premises in Rajahmundry is not correct and it is also not correct that he has no other avocation or means of livelihood. The present business is the joint family business. The family of the petitioner is carrying on business in main road, Rajahmundry and also in M. G. Complex and therefore the requirement of the premises by the petitioner is a ruse. The respondent does not possess any shop in main road and he is only a partner in money lending business carried on by his family in the name and style of vijaya Finance Syndicate. ( 4 ) IN R. C. C. No. 129/86 filed under section 4 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the pleadings of the respective parties are as follows:- the petitioner who is the owner of the petition schedule premises filed petition seeking for fixing fair rent in respect of the petition schedule property. The building is situated in main road within the municipal limits of Rajahmundry. The respondents are in occupation of the petition schedule premises on monthly rent of Rs. 330/- as tenant from 1-11-1981. Petitioner s father purchased the petition schedule premises in the name of the petitioner with a view to provide livelihood to the petitioner. There is another shop, which is given to elder brother of the petitioner in which family trade which is business in purchase and sale of cloth is being carried on since several years. Petitioner leased out the petition schedule property to the respondent with a specific understanding that the schedule premises should be vacated and handed over by 1-11-1986 without any delay muchless any notice. Petitioner leased out the petition schedule property to the respondent with a specific understanding that the schedule premises should be vacated and handed over by 1-11-1986 without any delay muchless any notice. Inspite of repeated requests made by the petitioner, the respondent evaded to do so and squatting away the property paying the nominal rent. The respondent called upon the petitioner and offered to pay monthly rent of Rs. 1000/- and in addition that a pagidi of Rs. 30,000/- and requested the petitioner to extend the lease period for another five years for which the petitioner expressed his inability and he requested the respondent to vacate the same immediately with a view to set up his business, i. e. , cloth business. The petition schedule property is situate in the heart of the municipal limits and more particularly it is situate in the cloth market on the main road. At present, the prevailing rent in the locality for which the petition schedule premises is situate is over Rs. 2000/- p. m. , because the schedule premises is preeminently situate for lucrative business of cloth. This is in the heart of the cloth business locality in that main road which is important locality. Petitioner is entitled to seek for fixing of fair rent for the petition schedule premises at Rs. 2000/- per month. The respondent wants to derive unjust enrichment and squatting on the property for a paltry rental of Rs. 250/- per month. ( 5 ) THE respondent had filed a counter to the following effect: the respondent contends that he took the premises on rent from the petitioner on 1-11-1981 for a period of five years and the rent is Rs. 230/- p. m. He further contended that the allegations made in the petition that he requires the schedule premises for his bona fide personal requirement to start cloth business and except the schedule property he has no other non-residential shop in rajahmundry and the cloth business in the main road shop is pertaining to his brother and it is a family trade etc. , are all false. The allegation that the petitioner leased out the petition schedule property with a specific understanding that the respondent should vacate and handover the petition schedule premises by 1-11-1986 without any delay, much less any notice etc. , are false. , are all false. The allegation that the petitioner leased out the petition schedule property with a specific understanding that the respondent should vacate and handover the petition schedule premises by 1-11-1986 without any delay, much less any notice etc. , are false. The lease is for a period of five years commencing from 1-11-1981 to 31-10-1986 and even before the expiry of the lease period the petitioner got a notice dated 26-7-1986 issued to the respondent to which the respondent sent a reply with true facts on 4-8-1986. The allegation that he tendered the rent for October, 1986 on 3-11-1986 in person and the petitioner refused to receive the same and agreed to receive the same provided the respondent is prepared to enhance the rent by Rs. 250/- and thus reiterating the request and refused to receive the rent for October, 1986 and thereupon the respondent got issued a notice dated 4-11-1986 and the petitioner acknowledged the same on 5-11-1986 and received rent for the month of October, 1986 on 5-11-1986. Thereafter when the respondent tendered the rent for November, 1986 on 1-12-1986 in person the petitioner refused to receive the same and thereupon the respondent remitted the rent by M. O. on 2-12-1986 and the said M. O. was refused on 9-12-1986 and so the respondent got issued notice dated 13-12-1986 to the petitioner calling upon him to name the bank into which the rents may be deposited within ten days of receipt of notice. The petitioner acknowledged the same on 18-12-1986 and when there is neither reply nor specification of bank, the respondent after following the procedure prescribed under the Rent control Act filed R. C. C. No. 9/87 and the same is pending. The allegation that the petitioner s father purchased the petition schedule property in the name of the petitioner with a view to provide livelihood is false and incorrect. This respondent submits that there is another shop which is given to the eldest brother of the petitioner which is family trade is not correct and the same is joint family business and is not the separate business of the petitioner s eldest brother. This respondent submits that there is another shop which is given to the eldest brother of the petitioner which is family trade is not correct and the same is joint family business and is not the separate business of the petitioner s eldest brother. The respondent submits that the petitioner s family possesses and owns a shop in Mahatma Gandhi complex, Rajahmundry and this fact is suppressed and suppressing the true and correct facts petitioner filed R. C. C. No. 97/ 86 for eviction of the respondent on the ground of bona fide requirement and the said petition is the result of this respondent not agreeing to pay the enhanced rent and pagidi and the allegation that the respondent called upon the petitioner and offered to pay the monthly rent of Rs. 1000/- in addition that the respondent agreed to pay a pagidi of Rs. 30,000/- and requested the petitioner to extend the lease for a further period of five years are false and invented for the purpose of this petition to coerce the respondent for payment of enhanced rent. The allegation that the petitioner requested the respodent to vacate the petition schedule premises to set up his own business is incorrect. The allegation that the premises will fetch over Rs. 2000/- per month is false and invented for filing this present petition. The premises is pre-eminently suited for lucrative business of cloth and in the heart of cloth business locality in the town and in the main road which is an important locality and heart of municipal limits etc. , are all false. To the knowledge of one and all cloth business Complex, known as M. G. complex has been constructed and the cloth merchants from the alleged heart of the town have shifted their business to tadithota and consequently the request for fixation of fair rent at Rs. 2000/- per month is unsustainable in law. The ruling rent of Rs. 230/- is reasonable, fair and proper and consequently the allegation that the respondent wants to derive unjust enrichment and squatting in the property for a paltry rent of Rs. 230/- etc. , are false. Thus the petition is not a bona fide one. The rent of rs. 230/- is fair rent and it does not require any fixation of further fair rent. No basis, material or data was shown for fixation of rent at Rs. 2000/ -. 230/- etc. , are false. Thus the petition is not a bona fide one. The rent of rs. 230/- is fair rent and it does not require any fixation of further fair rent. No basis, material or data was shown for fixation of rent at Rs. 2000/ -. Even otherwise, the provision of law quoted has no application to the facts of the case. ( 6 ) ON the respective pleadings of the parties, the Court of first instance after recording the evidence of PW1 to PW3 and rw1 and RW2 and after marking Exs. A1 to A5 and Exs. Bl to B3 and Exs. Xl to X6, had dismissed R. C. C. No. 97/86 and allowed r. C. C. NO. 129/86 fixing the fair rent at 40% over and above the existing rent of Rs. 230/- from the date of petition i. e. , 7-12-1987 till 7-12-1992 and this process shall continue for every five years. Aggrieved by the same, the landlord had preferred R. C. A. Nos. 82 and 83 of 1995 and the appellate authority by an order dated 4-8-1998 had dismissed both the appeals and aggrieved by the same, the present civil revision petitions are filed. ( 7 ) SRI Ramchander Rao, the learned counsel appearing for the landlord had strenuously contended that Ex. A1 is only for a period of five years and the terms of the lease deed are very specific and when once the lease deed is reduced to writing, the recitals in the lease deed alone should be looked into and the oral evidence let in, in this regard may not be of much consequence. The learned Counsel also had drawn my attention to Sections 91 and 92 of the Indian Evidence Act in this regard. The learned Counsel also had drawn my attention to the evidence of PW1, PW2 and also PW3 and the evidence of RW1. The learned Counsel had pointed out the respective pleadings of the parties and the case of the landlord in specific. The learned counsel also had contended that the lease deed shows that the landlord is the petitioner only and the said lease deed is not in dispute and hence it cannot be said that the joint family is the owner of the property and hence the landlord. The learned counsel also had contended that the lease deed shows that the landlord is the petitioner only and the said lease deed is not in dispute and hence it cannot be said that the joint family is the owner of the property and hence the landlord. The learned Counsel also had contended that the tenant cannot dictate the landlord as far as the suitability or otherwise of the accommodation is concerned in the case of bonafide personal requirement. The learned counsel had placed reliance on Ragavendra kumar v. Firm Prem Machinery and Co. , (2000) 1 SCC 697, Raghunath G. Panhale (Dead) by LRs. . v. Chaganlal Sundarji and co. (1999) 8 SCC 1 , M. L. Prabhakar v. Rajiv Singal, (2001) 2 SCC 355 . The learned counsel also had placed reliance on N. Chenchuramaiah v. Syed Nawabjan, 1991 (1) ALT 416 . The learned Counsel had pointed out that there are certain admissions on the part of the tenant also relating to the suitability of the other shops. The learned Counsel also had pointed out that though the findings are concurrent, in certain circumstances, the revisional Court is entitled to interfere under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The learned counsel also had placed reliance on vallampati Kalavathi v. Haji Ismail, (2001) 4 SCC 26 . The learned Counsel had pointed out that as far as fixation of fair rent is concerned, the relief should have been granted as prayed for. ( 8 ) SRI V. L. N. G. K. Murthy, the learned counsel for the respondent - tenant had pointed out that as a fact, the fact that the property is joint family property, is not in dispute. The eviction petition is filed by a junior member of coparcenary, which is not maintainable. The learned Counsel also had contended that the personal need pleaded is of his own and not that of the joint family. The learned Counsel also had pointed out the findings relating to the availability or the other shops. The eviction petition is filed by a junior member of coparcenary, which is not maintainable. The learned Counsel also had contended that the personal need pleaded is of his own and not that of the joint family. The learned Counsel also had pointed out the findings relating to the availability or the other shops. The learned counsel further submitted that the very fact that the landlord had let in some evidence to establish that he is the owner of the property and are not the joint family, clearly goes to show that the parties were also conscious of this plea of joint family and exclusive ownership and hence now the landlord cannot invite the aid of Sections 91 and 92 of the Indian Evidence Act, so as to take a different stand on the ground that there is a recital in the lease deed in Ex. A-1. The learned Counsel also had made an attempt to canvass that even the findings relating to the fixation of fair rent are not sustainable and those findings are beyond the jurisdiction of the Rent Controller. But however, the learned Counsel had contended that inasmuch as the tenant had not preferred any revision as against the said order, he is not entitled to canvass in relation to those findings. ( 9 ) AFTER hearing the parties at length and also after perusing the pleadings and the documentary evidence adduced by the respective parties, the crucial document on which much stress had been laid is Ex. A1. It is no doubt true that in Ex. Al, the petitioner is styled as landlord. But however, evidence was let in relating to the partition between the family members. In this case, the landlord and tenant relationship is not in dispute. The stand of the landlord is that his father had advised him to gain experience in cloth business after completing his studies and hence he worked in the cloth shop of his brother and in such circumstances he had let out the schedule premises to the tenant with a specific understanding that he should vacate and handover the same by 1-11-1986 and since he did not vacate, a notice dated 26-7-1986 was issued and the tenant approached the landlord and had offered to pay a rent of Rs. 1000/- per month and pagidi of Rs. 1000/- per month and pagidi of Rs. 30,000/- requesting him to extend the lease for yet another five years, for which the landlord did not agree. It is also his case that he has no other non- residential premises at Rajahmundry and he belongs to a trading family and he has to eek-out his livelihood by doing cloth business. Ex. Al is the extract of the lease deed executed by the tenant in favour of the landlord. Ex. A2 is the office copy of the notice and Ex. A3 is the reply notice. The landlord was examined as PW1, who had deposed his case in detail. PW2, who is the brother of the landlord had deposed that his father and himself and PW1 were doing business in cloth in the name and style of vemana Muralikrishna Rao and Sons and after the death of his father, the brothers had continued the said business for sometime and due to family problems, PW1 had decided to have his own business and hence in the year 1988 there was separation of the joint business. PW2 also deposed that his brother and other family members had partitioned their joint family properties on 10-5-1985 and 12-5-1985 and prepared a partition list under Ex. A5. PW2 also had spoken about the details of the partition. The Courts below after detailed discussion had arrived at a conclusion that there is no satisfactory evidence placed on behalf of the landlord that the schedule property is the exclusive property of the landlord/ petitioner and that the joint family members had partitioned their properties under Ex. A5 partition list. The Courts below in fact had discussed in detail the evidence of PW1 and pw2 and also PW3 and RW1 and RW2 and exs. A1 to A5 and B1 to B3 and also Exs. Xl to X6 while recording such finding. The main ground of attack of the learned Counsel for the landlord/petitioner is that inasmuch as there is specific recital in Ex. Al relating to the fact that the landlord alone is the owner of the property, the other oral evidence let in, in this regard has to be ignored in view of Sections 91 and 92 of the Indian evidence Act. But however, the landlord had let in evidence about the aspect of partition and also that this property had fallen to his share. No doubt Ex. But however, the landlord had let in evidence about the aspect of partition and also that this property had fallen to his share. No doubt Ex. Al is binding on the parties. But as far as the nature of the property, whether in fact it is a joint family property or the separate exclusive property of the landlord, especially in the light of appreciation of the ground of bona fide requirement, is concerned, both the Courts below had recorded concurrent findings which are findings of fact negativing the contention of the landlord. In the decision in M. L. Prabhakar s case referred above, where the landlord had not mentioned anything in the eviction petition about two other shops belonging to him or to his wife, but material about them had been placed before the Rent controller as well as the High Court, it was held that the question had been adequately dealt with and no prejudice was caused to the tenant. In the decision referred in raghunath G. Panhale case (supra) it was held that the bona fide requirement does not mean dire or compelling necessity and reasonable and bona fide requirement is something in between mere desire or wish on one hand and a compelling or dire or absolute necessity on the other hand. In the decision referred in Vallampati Kalavathi s case above it was held that the power under Section 22 of the Andhra Pradesh buildings (Lease, Rent and Eviction) Control act, 3960 is wider than the power under section 115 CPC only to correct the jurisdictional error. ( 10 ) IT is no doubt true that as contended by the learned Counsel representing the landlord, even if concurrent findings had been recorded by both the Courts below, under certain circumstances when the findings are perverse or the findings are based on no evidence, or when the approach of the Courts below is totally erroneous in application of the principles of law, the revisional Court no doubt is entitled to interfere with such findings of fact also depending upon the facts and circumstances of a particular case. Here is a case where the parties had let in evidence on the ground of bona fide requirement of the landlord as such taking a specific stand that there was partition and detailed findings had been recorded negativing the stand taken by the landlord and this is a concurrent finding on appreciation of both oral and documentary evidence, which cannot be said to be either perverse or based on evidence or at any rate, totally erroneous approach in appreciation of the evidence. Hence, in view of the limitations placed on the revisional Court while appreciating the matter under section 22 of the Andhra Pradesh buildings (Lease, Rent and Eviction) Control act, 1960, I do not find any legal infirmity in the findings recorded by both the courts below. As far as the revision relating to the fixation of fair rent is concerned, the counsel for the respective parties had not advanced any elaborate arguments. ( 11 ) HENCE for the reasons recorded above, I am of the considered opinion that both the revisions are devoid of merits and the findings recorded by both the Courts below do not suffer from any legal infirmity so as to warrant interference under Section 22 of the Andhra Pradesh buildings (Lease, Rent and Eviction) Control act, 1960. The civil revision petitions are accordingly dismissed. But in the facts and circumstances of the case, no order as to costs.