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2001 DIGILAW 1673 (AP)

Suresh Kumar Kunurama v. T. Susheela Bai

2001-12-20

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE unsuccessful tenant is the revision petitioner and the first respondent is the original landlady and the second respondent was brought on record as second appellant by an order dated 19. 10. 2000 in IA No. 23 8/2000 in RA No. 292/96 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad. The first respondent in the present CRP, the original landlady, filed RC No. 30/93 on the file of the IV Additional Rent Controller, Hyderabad on several grounds and the learned Rent Controller, after recording the evidence of PW1 to PW4 and RW1 and also marking Exs. Al to A3 and Exs. Bl to B99 and Exs. Xl to X3, had arrived at a conclusion that the landlady is not entitled to the relief of eviction. Aggrieved by the same, the landlady had preferred RA No. 292/96 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad and during the pendency of the appeal, PW4 was brought on record as second appellant, as already stated supra, and the appellate authority had negatived all the grounds confirming the order of the Court of first instance, but, had allowed the appeal on the ground of bona fide personal occupation only. In the appeal, Exs. A4 to A16 were marked and aggrieved by the order of the appellate authority made in R. A. No. 292/96 on the file of the Additional Chief Judge, City Small Causes Court at Hyderabad, dated 1. 3. 2001, the tenant had preferred the present revision. ( 2 ) SRI Vilas V. Ajzulpurkar, the learned Counsel representing the revision petitioner-tenant, had drawn my attention to paragraph No. 7 of RA No. 292/96, which is to the following effect: "according to the petitioner, except the suit house, she is not having any other house of her own in Hyderabad City. The one room portion of the suit house under occupation of the petitioner is not sufficient for her personal requirement and occupation and the petitioner and her husband often and regular visits and stay at Hyderabad and the petitioner bona fidely requires the suit premises for her personal occupation and additional accommodation for residential purpose and the respondent is liable to be evicted from the suit premises. " ( 3 ) THE learned Counsel also had drawn my attention to the fact that the second respondent in the CRP was impleaded as the second appellant on the strength of a gift deed, dated 4. 5. 1998, executed by the landlady in favour of the second respondent in the CRP. The main contention of the learned Counsel for the revision petitioner is that the requirement of the donor stands on a different footing from that of the donee and merely because he was examined as PW4, it doesn t improve the case of the landlady in any manner. The learned Counsel also had pointed out that the landlady was not examined at all, but the husband of the landlady was examined as PW1. The learned Counsel also had contended that in the light of the pleading and also in the light of the evidence, which had been let in, the requirement of the landlady no longer subsists and what has to be decided now is that in the light of the subsequent changes, whether the ground of bona fide personal requirement survives or not. The learned Counsel also had pointed out that the appellate authority, in fact, was doubtful whether it was a ground of additional accommodation and in any event, the non-consideration of relative hardship also definitely vitiates the order. The learned Counsel had drawn my attention to both the oral and documentary evidence and also had placed reliance on Sheikh Jehangir v. smt. S. Kaushilyabai and others, 1987 Supp. SCC 630, Om Prakash v. Basanthilal, (1999) 9 SCC 618 and Gaya Prasad v. Pradeep Shrivastava, AIR 2001 SC 803 . The learned Counsel on the aspect of change of user had contended that both the Courts below had recorded the concurrent findings relating to this ground on appreciation of evidence and it does not warrant any interference. ( 4 ) SRI Sarathy, the learned senior Counsel appearing for the respondents, had vehemently contended that in the case of this nature of bona fide personal requirement of a family, the family s requirement will be the requirement of the landlady and the pleadings and the evidence in this regard have to be liberally construed. ( 4 ) SRI Sarathy, the learned senior Counsel appearing for the respondents, had vehemently contended that in the case of this nature of bona fide personal requirement of a family, the family s requirement will be the requirement of the landlady and the pleadings and the evidence in this regard have to be liberally construed. The learned Counsel also had drawn my attention that as far as the registered gift deed is concerned, it is not in dispute that even in the counter filed by the tenant in IA No. 10/2001 in the appeal, the gift deed, in fact, was admitted. The learned Counsel also had drawn my attention to the orders passed in both IA No. 10/20001 and also IA No. 9/2001 and had contended that in the light of the said orders, there is no necessity of amending the pleading relating to the subsequent event of the registered gift deed being executed by the landlady and also the learned Counsel had brought to my notice that the documents, in fact, had been marked with the consent of the parties and hence, no prejudice is caused to the tenant in this regard. The learned Counsel also had contended that PW1 being the husband of the landlady, who has been managing the affairs of the family, in fact, had given evidence and hence, the non-examination of the landlady is of no consequence. The learned Counsel also had contended that the mere fact that a gift deed was executed by a mother, it cannot be said that the requirement of the mother or the family, as such, had ceased to exist. Even, otherwise, the presumption is in favour of the bonafide persona! requirement and it is the tenant, who may have to, otherwise, establish that such requirement is not there. The learned Counsel ha I placed strong reliance on Raghunath (Panhale v. M/s. Chaganlal Sundarji and to AIR 1999 SC 3864 , Rena Drego v. Lalchand Soni, AIR 1998 SC 1990 and also Shankar Bhairoba Vadangekar v. Ganapati Appa Gatare, 2001 AIHC 3483. The learned Counsel, however, sub pitted that bonafide personal requirement cannot be said to disappear by virtue of the gift deed executed by the landlady. Even in the case of the death of a party, the ground does not cease to exist and hence, the contention of the tenant on this ground is totally unsustainable. The learned Counsel, however, sub pitted that bonafide personal requirement cannot be said to disappear by virtue of the gift deed executed by the landlady. Even in the case of the death of a party, the ground does not cease to exist and hence, the contention of the tenant on this ground is totally unsustainable. The learned Counsel also placed reliance on Shantilal Thakordas and others v. Chimanlal Maganlal Telwal, AIR 1976 SC 2358 . The learned Counsel also had pointed out that, no doubt, in the present matter, the ground of bona fide personal requirement and the ground of additional occupation, in fact, appeared to be overlapping, but the fact remains that it is only a ground of bonafide personal requirement. At any rate, in the light of the facts and circumstances of the case, there is no necessity of considering the relative hardship and even if it is considered, the respondents will be put to serious hardship in the facts and the circumstances of the case. The learned Counsel also had further contended that the specific case of the landlady is that the building was let out only for residential purpose and definitely, there is change of user and both the Courts below had totally erred in not properly appreciating the evidence available on record. Even if the concurrent findings had been recorded and if such findings are perverse or based on no evidence, the revisional Court can definitely interfere. The learned Counsel had placed strong reliance on Achutananda baidya v. Prqfullya Kumar Gayen and others, AIR 1997 SC 2077 , in the regard. the learned Counsel had pointed out in the evidence of RW1, certain admissions made by RW1 to the effect that he was inducted into possession only because of PW3 and the evidence of PW3 in this regard relating to the purpose for which the property was let out. All these aspects and also Ex. B2 had been totallv ignored or had not been properly appreciated by both the Courts below while appreciating the ground of change of user and hence, the revisional Court can definitely order eviction on the ground of change of user also. The learned Counsel had placed reliance on Vijay Kumar Patangay v. Kedarnath, 1999 (4) ALD 182 , in this regard. ( 5 ) HEARD both the Counsel and perused the material available on record. The learned Counsel had placed reliance on Vijay Kumar Patangay v. Kedarnath, 1999 (4) ALD 182 , in this regard. ( 5 ) HEARD both the Counsel and perused the material available on record. It is not in controversy that at the appeal stage, the second respondent, on the strength of a gift deed, was impleaded as a party. It is also not in dispute that in addition to Exs. Al to A3, which had been marked in the Court of first instance, Exs. A4 to A16 were marked at the appellate stage. It is, no doubt, contended that these documents were marked with the consent of both the parties. Be that as it may, the appellate authority at paragraph No. 16 of the judgment had framed as many as 7 points for consideration and had negatived all the contentions except the ground of bonafide personal requirement. AS can be seen from the impugned order and as discussed by the appellate authority at paragraph No. 26, it appears that the subsequent events also had been taken into consideration for better appreciation of the facts of the case. It is also pertinent to note that at paragraph No. 27, it was observed by the appellate authority that the landlady also sought eviction on the ground of additional accommodation contending inter alia that her grandson is residing in one room and the other portion is required for additional accommodation. It was also observed that due to subsequent events as she had executed gift deed for the demised premises, it was found that her son was transferred to Hyderabad and has been staying at Hyderabad and as such, the requirement of additional accommodation for her family members is merged with the self-occupation of PW4. It is needless to point out that PW4 is none other than the second respondent in the present CRP. Relating to the bona fide personal requirement, the relevant discussion is at paragraph Nos. 23, 24 and 25 of the impugned order. It is needless to point out that PW4 is none other than the second respondent in the present CRP. Relating to the bona fide personal requirement, the relevant discussion is at paragraph Nos. 23, 24 and 25 of the impugned order. While commencing the discussion itself, the appellate authority itself had observed that, then there remains about the ground of bona fide requirement of the demised premises for residential purpose of his own and his family and it is also required for additional accommodation and explaining about the same i. e. , the need, the husband of the landlady, no doubt, was examined and the evidence of PW1 had been discussed in detail and the evidence of PW3, who is the grandson of PW1 also had supported the case of the landlady. PW4 was also examined in this regard. Ex. X1 to Ex. X3 also had been marked. It is the evidence of PW4 that his mother is in possession of one room and Raghu Prasad is residing in the said room, who is his brother s son, and that he is working in Directorate of Oil Seeds Research at Rajendranagar and he is residing at Old Kattelamandi, Abids in a rented house and filed rental receipts, Exs. X2 and X3. In fact, this requirement of PW4 is definitely a subsequent event. Apart from it, the appellate authority even at paragraph No. 25 had placed reliance on the additional documents, which were marked in the appeal. Apart from this aspect of the matter, it is needless to point out that the landlady has executed a gift deed, by virtue of it PW4 also came on record to further prosecute the litigation. It is one thing to figure as a witness in the proceeding and it is another thing to come on record as a party to prosecute the litigation. In my considered opinion, these are two different aspects altogether. Apart from this aspect of the matter, it also appears that PW2, the sister of the landlady, who was examined was not produced for cross-examination for certain reasons and her evidence may have to be eschewed from the record since it needs no consideration. Now, we are left with the evidence of PW1, PW3 and PW4. Apart from this aspect of the matter, it also appears that PW2, the sister of the landlady, who was examined was not produced for cross-examination for certain reasons and her evidence may have to be eschewed from the record since it needs no consideration. Now, we are left with the evidence of PW1, PW3 and PW4. It is very interesting to note that PW1 is the husband of the landlady, PW4 is the son and PW3 is none other than the sister s son of the landlady. Thus, the witnesses examined are closely related. As against this evidence, no doubt, except the evidence of RW1, there is no other evidence available on record. In Sheik Jagangir s case (supra) it was held that in the case of sale of the demised premises, the bona fide requirement of the landlord does not survive and the purchaser of the premises may have to file a fresh suit. In Gaya Prasad s case (supra) a case decided under U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1973, it was held that the crucial date for deciding as to the bona fides of the need of the landlord is the date of the application and the subsequent developments occurred pendente lite can be taken into account only when the need of landlord is completely eclipsed by such subsequent events. In Om Prakash s case (supra) it was held that the ground of bona fide requirement and the ground of additional accommodation operate in different fields even though one of the ingredients may overlap. In Shanker Bairoma Vadangekar s case (supra) at paragraph No. 23 it was held that it is open to the Court to presume that requirement of landlord is bona fide and put onus on tenant to establish that requirement of landlord was not bona fide. ( 6 ) AS already stated supra, the second respondent was brought on record by virtue of a gift deed and as can be seen from the pleading, the very foundation of the pleading of the landlady is that she requires the premises for her personal occupation since she will be visiting Hyderabad often along with her husband and unfortunately, the general bona fide requirement of all the family members had not been specifically pleaded, through some material is available on record relating to the same. This is the arena where the Counsel for the tenant had raised a serious objection relating to the observations made by the appellate authority while discussing the ground of bona fide personal requirement. Apart from it, as already stated supra, the findings recorded by the appellate authority are also based on the additional evidence, which had been marked by consent. In A. Ranga Rao and others v. Asst. Commissioner, Endowments Dept, E. G. Dt. , and another, 2001 (3) LS 363 , while dealing with the word "shall" under Order 41, Rule 29 CPC, the Division Bench of this Court, no doubt, held that the same does not signify mandatory in the sense that if a Court has failed to specify points to which evidence is to be confined same would, by itself not lead to discarding evidence without further probing into matter as to whether such non-specification of points prejudice parties or not. But, it is a case, where the party was brought on record by virtue of a gift deed and also additional evidence had been let in and in the light of the facts and circumstances, in my considered opinion, the appellate authority should have been careful and cautious and should have given liberty to both the parties to let in oral evidence, if necessary, though the documents were marked by consent. In this view of the matter, I am of the opinion that the appellate authority had failed in properly exercising its jurisdiction in not enabling the parties to let in the relevant evidence relating to all the subsequent events. It may be true that the gift deed was not disputed in the counter, but that by itself cannot be the end of the matter and it is always necessary that sufficient proof is required relating to even subsequent events. Coming to the second aspect of the change of user, it is, no doubt, contended by the senior Counsel Sri Sarathy that though the concurrent findings had been recorded, since the evidence was not appreciated in proper perspective and several important aspects had been lost sight of, the revisionai Court can definitely interfere with such findings and strong reliance was placed on Achutananda Baidya s case (supra) and also Vallampati Kalavati v. Haji Ismail, 2001 AIR SCW 1267. The proposition advanced by the learned senior Counsel is not in dispute. The proposition advanced by the learned senior Counsel is not in dispute. But, the question is whether, in the facts and circumstances of the case, on the ground of change of user, an order of eviction can be passed at the revisionai stage. It was, no doubt, pointed out that a specific plea was taken to the effect mat the purpose for which the building was let out was only residential purpose and the change of the user is into one of non-residential purpose. In fact, RW1 in his deposition, in cross-examination, had stated that "it is true that I am the tenant of petitioner in the suit premises for monthly rent of Rs. 500/- including electricity and water charges. There is one room in possession of petitioner. It is incorrect to suggest that grandson of p titioner Raghuprasad is residing in one room portion. The witness says it is locked. It is the open space, both and WC are common in use. I took the tenancy in the month of September or October, 1989. It is not true to say that I took the premises for residential purpose. It is true that I obtained the premises through Narender. PW3 is the said Narender. The tenancy is oral". In the evidence of RW1, no doubt, RW1 had stated "it is true that when I entered the premises, I came along with family, again the witness says not came with family. " The evidence of PW3, no doubt, is available on this aspect, who is none other than the sister s son of the landlady. PW3, no doubt, had stated that it was let out only for residential purpose and the tenant had been using it for different purpose altogether. On the strength of this material, the learned Counsel had strenuously contended that definitely it can be said that the ground of change of user had been well established. But, however, even in this context, it is relevant that by virtue of the gift deed executed by the landlady, now another party PW4 already had been impleaded as a party to the proceeding. Hence, apart from this aspect of the matter, the tenancy is only an oral one and hence, the decision relied on Vijay Kumar Patangay s case (supra), in my opinion, is distinguishable on facts. Hence, apart from this aspect of the matter, the tenancy is only an oral one and hence, the decision relied on Vijay Kumar Patangay s case (supra), in my opinion, is distinguishable on facts. Even, otherwise, in the light of the several disputed factual aspects, which had been urged by the respective parties at the appellate stage, in my considered opinion, the appellate authority should have given opportunity to both the parties to let in further evidence to substantiate their respective contentions and in that view of the matter, the course adopted by the appellate authority is not sustainable in law. ( 7 ) IN view of the findings recorded above and in the light of the subsequent events, it is a fit matter which may have to be remitted back to the appellate authority to enable the appellate authority to give opportunity to both the parties to let in further evidence to substantiate their respective contentions relating to the grounds, which had been elaborately argued before this revisional Court. Accordingly, for the reasons recorded above, the CRP is allowed to the extent indicated above. In the facts and circumstances of the case, no order as to costs. However, in view of the peculiar facts and circumstances of the case, the appellate authority is hereby directed to dispose of the matter, within a period of four months from the date of the communication of the order.