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2001 DIGILAW 829 (AP)

Veera Swamy v. D. N. Domale

2001-08-03

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) THE revision petitioner is the tenant. He assails the order of the learned Chief Judge, City Small Causes court, Hyderabad dated 21-3-2000 passed in RA No. 153 of 1998 confirming the order of the Principal Rent Controller dated 31-3-1998 in RC No. 216 of 1994 ordering eviction of the petitioner. The parties will be referred to as landlord and tenant for the sake of convenience. ( 2 ) THE landlord filed RCC No. 216 of 1994 on the file of the Principal Rent controller, Hyderabad seeking eviction of the tenant on the grounds of wilful default; causing damage to the demised premises; and user of the premises for the purpose other than that for which it was leased. The learned Rent Controller after conducting an elaborate enquiry while holding that the tenant did not commit any wilful default, ordered eviction of the tenant on the ground that the tenant caused damage to the demised premises by changing the rafter and replacing the roof of the building without the consent of the landlord and that he used the demised premises for doing business in bakery. Aggrieved by the said order of eviction, the tenant preferred an appeal in RA No. 153 of 1998 before the learned Chief Judge, City Small Causes court, Hyderabad. In the appeal, the following points for consideration were framed: 1. Whether the respondent/tenant has caused any acts of waste, which will impair the value, and utility of the demised premises? 2. Whether the respondent/tenant is in arrears of electricity and water charges for five years? 3. Whether the respondent is carrying on bakery business in the demised premises? by the impugned judgment, the learned chief Judge held all the above points against the tenant by holding that the tenant had caused damage to the premises which would impair the value and utility of the demised premises, that the tenant had not been paying electricity and water charges for over five years and that he had been doing bakery business in the demised premises in view of his own admissions as rw1 and dismissed the Appeal confirming the order of the learned Rent Controller. Aggrieved by the same, the tenant has approached this Court by filing this revision petition. Aggrieved by the same, the tenant has approached this Court by filing this revision petition. ( 3 ) SRI N. Ashok Kumar, learned counsel appearing for the tenant submits that the learned Chief Judge did not consider the evidence adduced in this case in the proper perspective, that findings recorded on the points for consideration are not correct, legal and proper and at any rate they are not well-founded and, therefore, the impugned order of the learned Chief Judge is liable to be set aside. ( 4 ) THERE is no dispute with regard to the jural relationship of landlord and tenant. Equally, there is no dispute that the demised premises is a residential premises and has been let out for residential purpose. The landlord in his eviction petition mentioned inter alia that the tenant committed wilful default, that he caused damage to the building which impaired its value and utility and that he had been using the premises for the purpose other than that for which it was leased. The ground that the tenant failed to pay the electricity and water charges has not been made before the learned Rent controller while seeking eviction of the petitioner. The learned Rent Controller had also not framed any point for determination on that aspect. The learned Rent controller ordered eviction of the petitioner on two grounds viz. , that he caused damage to the building which impaired its value and utility and that he had been using the premises for the purpose other than, that for which it was let out. Surprisingly, the learned Chief Judge framed, three points for consideration as set out above out of which Point No. 2 relates to the non-payment of electricity and water charges by the tenant. This point is not germane for consideration in view of the pleadings of the respective parties. However that point would also be adverted to a little later. Point Nos. l and 3 are germane for consideration in this revision petition in view of the respective contentions of the learned Counsel for the parties. ( 5 ) IT is the case of the landlord that the tenant caused damage to the building. According to the landlord the tenant changed the rafter and replaced the roof ofthe premises and lowered the height of the water pipe and thereby caused damage to the building. ( 5 ) IT is the case of the landlord that the tenant caused damage to the building. According to the landlord the tenant changed the rafter and replaced the roof ofthe premises and lowered the height of the water pipe and thereby caused damage to the building. The demised premises is a tin roofed building. It is the case of the tenant that he requested the landlord to change the rafter and the roof as the rafter was damaged and the roof was in a dilapidated condition and when the landlord did not pay heed to his request, he changed the rafter and replaced the tinned roof. This, in the view of both the learned Rent controller and the Chief Judge, is nothing short of causing damage to the premises by the tenant. ( 6 ) UNDER Section 10 of A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act, for brevity) the landlord can seek eviction of the tenant on all or any of the grounds enumerated therein. Sub-section (2) of Section 10 of the Act, which is relevant for the purpose of this Revision, reads as follows:"70. Eviction of tenants : (1) xxx (2) A landlord who seeks to evict the tenant shall apply to the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, or (ii) that the tenant has, in the Andhra area, after the 23rd October, 1945, and in the Telangana area after the commencement of the Hyderabad house Rent Controller Order of 1353 fasli, without the consent of the landlord (a) transferred his right under the. lease or sub let the entire building or any portion thereof if the lease does not confer on him any right to do so; (b) used the building for a purpose other than that for which it was leased; or (iii) that the tenant has committed such acts of waste as are likely to impair materially the value of utility of the building, or x X X X x X X X a perusal of the above provisions, makes it obvious, that if a tenant commits such acts of waste, which are likely to impair materially the value or the utility of the building, he is liable to be evicted. What the Courts, therefore, have to see is whether the tenant has committed any act of waste, which is likely to impair materially the value or utility of the building. " ( 7 ) THE tenant is said to have changed the rafter and replaced the tinned roof. Whether such an act on the part of the tenant would amount to an act of waste, more particularly an act, which is likely to impair materially the value or utility of the building, is the moot question. On the face of it, the answer would be certainly in the negative. By changing the rafter and replacing the roof, by no stretch of the imagination, it can be said that it would impair materially the value and utility of the building. Regardless of the fact that there are certain contradictions in the evidence of the tenant as RW1 and the plea taken by him earlier in the counter that he obtained permission for such change from the landlord or his son, changing the rafter and replacing the tinned roof, on the other hand, would enhance the value of the building and it would not certainly impair the value or the utility of the building. The burden is heavy on the landlord to prove that the tenant has committed an act of waste and that that the act impaired materially the value or the utility of the building. Except the ipsi-dixit of the landlord, there is no evidence adduced in this case to show that the act complained of is an act of waste and that on account of that act the value or the utility of the building has been materially impaired. Except the ipsi-dixit of the landlord, there is no evidence adduced in this case to show that the act complained of is an act of waste and that on account of that act the value or the utility of the building has been materially impaired. In the absence of such evidence and proof, it cannot be said that the tenant indulged in any act of waste and that the alleged act of waste impaired materially the value of the building or its utility. ( 8 ) THE other act of waste alleged is that the tenant lowered the height of the water pipe. It is in evidence that there are as many as six tenants residing in a row by the side of the demised premises and there is only one water connection. Even assuming for a moment that the height of the water pipe was lowered, the evidence on record falls short of proof that it is the petitioner and the petitioner alone who did that act. That apart lowering the height of the water pipe cannot be considered as an act of waste unless there is some other supporting evidence to show that on account of such an act, damage has been caused to the building. Perhaps, on account of the fact that there is no requisite pressure, it is quite natural to see that the height of the water pipe is reduced for the purpose of getting requisite pressure in the water to be pumped out. Therefore, it cannot be said that it is an act of waste. The intrinsic worth of the evidence adduced on the basis of the allegations levelled shorn of other details has not been considered in the power perspective by both the Courts below. ( 9 ) THE other ground of eviction is that the tenant has been using the premises for the purpose other than that for which it was leased out. According to section 10 (2) (ii) (b) of the Act, if the tenant uses the building for a purpose other than, that for which it was leased, he is liable to be evicted. Admittedly, the demised premises had been let out to the petitioner for residential purpose. It is not the case of the landlord that the tenant has not been residing in the demised premises. It is apposite here to consider the evidence of pw1. Admittedly, the demised premises had been let out to the petitioner for residential purpose. It is not the case of the landlord that the tenant has not been residing in the demised premises. It is apposite here to consider the evidence of pw1. In the Chief Examination itself, he deposed on oath to the following effect:"the respondent apart from residence has been using the demised premises for his bakery business". It is the grievance of the landlord that the tenant has been using the premises for both residential as well as business purposes. The moot question, therefore, that falls for consideration is whether such an act of the tenant would amount to using the demised premises for the purpose other than that for which it was leased out. There is no difficulty in answering this question in view of the authoritative pronouncement of the Apex Court on this aspect in A. N. Kapoor v. Smt Pushpa Talwar, AIR 1992 SC 799 . In paragraph 8 of the said judgment, the apex Court held as follows:"if the landlord is in a position to establish that the premises have been let for residential purpose and that he has never consented of the user of the premises for any other purpose, the mere fact such premises have been incidentally used for commercial or other purpose would not change or affect the residential character of the premises. "in view of the clear admission of PW1, the landlord, that the tenant has been using the premises for residential as well as business purposes, it is to be seen that what is the dominant purpose for which the premises is being put to use. The evidence adduced in this regard shows that the tenant has been doing bakery business not in the demised premises, but while residing in the premises he has been keeping the eatable items in the premises and has been selling them. Such an act on the part of the tenant would not take away the other use of the building viz. , using the building for residential purpose. Even on a plain reading of the relevant provisions, it is obvious that the tenant should use the building for a purpose other than that for which it was leased. Therefore, the user of the premises should be for an altogether different purpose. , using the building for residential purpose. Even on a plain reading of the relevant provisions, it is obvious that the tenant should use the building for a purpose other than that for which it was leased. Therefore, the user of the premises should be for an altogether different purpose. While using it for residential purpose, the petitioner is also using it for doing bakery business. Therefore, it cannot be said that he is using the premises for the purpose other than that for which it has been leased. Both the Courts below, have not addressed themselves to this controversial point in a proper perspective. ( 10 ) COMING to the other aspect of nonpayment of electricity and water charges, the evidence in this regard shows that some of the tenants have also filed suits against the landlord for recovery of the amounts paid by them towards water and electricity charges as the landlord failed to pay the same to the concerned authorities after collecting the amounts from the respective tenants. The contention of the learned counsel for the petitioner is that it is not the petitioner alone that has committed default in payment of electricity and water charges since they are common for all the six tenants of the landlord and each of the tenants has been contributing his/her share. Obviously these charges have been paid subsequently when the electricity and water facilities have been disconnected. Therefore, it cannot be said that the tenant has committed default in payment of electricity and water charges. As afore discussed that is not a contentious point to be determined in this case since there is no pleading to that effect before the rent Controller and no point for consideration on the said aspect has been framed by the Rent Controller. For the first time, the learned Chief Judge, perhaps basing on the contentions of the parties, had framed that point in the appeal and dealt with it. In any view of the matter, there is no default committed by the tenant in payment of electricity and water charges. That apart unless there is evidence to show that water and electricity charges formed part of the rent and there is default in payment of the same, it cannot be said that the tenant committed wilful default in payment of the same. That apart unless there is evidence to show that water and electricity charges formed part of the rent and there is default in payment of the same, it cannot be said that the tenant committed wilful default in payment of the same. Clause (i) of subsection (2) of Section 10 of the Act envisages only default in payment of rent as a ground for eviction. Default on the part of the tenant in paying water and electricity charges perhaps might result in disconnection of the said amenities. Per se that is not a ground to be urged by the landlord for eviction of the tenant. ( 11 ) THE learned Counsel for the respondent-landlord relies upon a judgment of a learned single Judge of this Court in S. Gopinath Pillai v. Karamsetti Venkateswarlu, 2000 (3) ALD 243 , for the proposition, that the High Court cannot, in its revisional powers, interfere with the concurrent findings of the Courts below in the absence of any infirmity in the conclusions reached by them. There can be no quarrel with regard to the said proposition. But here is a case where both the Courts below have misdirected themselves and did not consider the evidence in the proper perspective by adverting to the provisions contained in Section 10 of the Act. Therefore, this Court while exercising its revisional jurisdiction can interfere with such findings. The orders of the Courts below, therefore, cannot be sustained. ( 12 ) FOR the foregoing reasons, the crp, is allowed. The order of eviction passed by the learned Principal Rent controller, Hyderabad as confirmed by the chief Judge, City Small Causes Court, hyderabad are hereby set aside. There shall be no order as to costs.