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2003 DIGILAW 1579 (AP)

Pydah Rammohana Rao v. Mandarapu Mahalakshmi

2003-12-24

P.S.NARAYANA

body2003
( 1 ) HEARD Sri M. S. R. Subrahmanyam, counsel for Revision Petitioner and Sri E. V. S. S. Ravi kumar, Counsel representing respondents. ( 2 ) THE unsuccessful landlord before both the Tribunals below is the Revision petitioner. The Revision petitioner/landlord filed r. C. C. NO. 19/85 on the file of House Rent controller/principal District Munsif, kakinada against respondent M. Brahmaji rao, who died, and respondents 2 and 3 were added as legal representatives as per orders in I. A. No. 3124/92, dated 3-12-1992. ( 3 ) THE Revision petitioner/landlord filed the said eviction petition on the ground of wilful default. The Primary Tribunal / House rent Controller/principal District Munsif, kakinada, on the respective pleadings of the parties and having record the evidence of p. W. 1, R. W. 1 and R. W. 2 and marking exs. A-1 and A-2 and Exs. B-1 to B-3 had framed the Points for consideration and had recorded findings that the respondents had not committed any wilful default especially in view of the fact that the landlord was holding an amount of Rs. 2000/- belonging to the respondents and also held that the landlord was in the habit of receiving payment of rents at irregular intervals for two or three months and all of a sudden with a view to make it a ground for eviction, the plea of wilful default had been raised and having recorded such findings, ultimately the relief was negatived to the Revision petitioner/landlord. Aggrieved by thesame, the unsuccessful landlord had carried the matter by way of R. C. A. No. 33/94 on the file of Appellate Authority/principal Senior Civil judge, Kakinada who had dismissed the same and aggrieved by the same the present Civil revision Petition is preferred. Pending the civil Revision Petition, the 1st respondent also died and the 3rd respondent is brought onrecotd. ( 4 ) SRI M. S. R. Subrahmanyam, the learned counsel representing the Revision petitioner/landlord had made an attempt to convince the Court that except the interested testimony of R. W. 1 and the supporting evidence of R. W. 2, there is no other convincing evidence to prove the fact of payment of Rs. 2000/- and though it is a finding in relation to fact, the evidence on record was not properly appreciated by both the Tribunals below. 2000/- and though it is a finding in relation to fact, the evidence on record was not properly appreciated by both the Tribunals below. The Counsel also had taken this Court through the findings recorded by the House Rent Controller and also the Appellate authority and had pointed out that the fact that the payments had been made at irregular intervals in not in controversy and hence this would definitely amount to wilful default and the explanation given by the tenant that at irregular intervals rents were being collected cannot be a ground at all since it is the duty of the tenant to make payments regularly. ( 5 ) PER contra, Sri E. V. S. S. Ravi Kumar, counsel representing the respondents had contended that though in certain circumstances, there can be appreciation of evidence also by the Revisional Court under section 22 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, this is not a fit case for interference for the reason that clear findings had been recorded negativing the relief to the landlord since the landlord miserably failed to establish the ground of wilful default. The Counsel also had taken this Court through the findings recorded by both the Tribunals below in this regard. ( 6 ) HEARD both the Counsel and also perused the order made by the learned Rent controller and the Appellate authority as well. The landlord/petitioner filed R. C. C. No. 19/85 with the following allegations: it was pleaded that the petitioner/ landlord is the owner of the shop bearing door No. 33-8-18, situated in Bajaj Street, kakinada. The 1st respondent took the schedule property on lease on a monthly rent of Rs. 200/- and the monthly rent is payable by the first of the succeeding month. It was also agreed at the time of the lease that the tenant should send the rent by mail transfer to the S. B. Account No. 139 of smt. P. Hymavathi in Indian Overseas Bank, visakhapatnam. The building was constructed more than 50 years ago. The 1st respondent was always irregular in payment of rents and he could not take action against him as he had been residing in visakhapatnam. The 1st respondent paid rent payable in August 1983 in April 1984. The rent payable in May and June 1984 was paid in December 1984. The building was constructed more than 50 years ago. The 1st respondent was always irregular in payment of rents and he could not take action against him as he had been residing in visakhapatnam. The 1st respondent paid rent payable in August 1983 in April 1984. The rent payable in May and June 1984 was paid in December 1984. The rent payable in july 1984 was paid in January 1985 and the rent payable in August 1984 was paid in march 1985. Thus, the 1st respondent failed to pay the rents and committed wilful default in payment of rents. It was further pleaded that the petitioner also got issued notice on 13-4-1985 with the 1st respondent requesting him to vacate the schedule property. Though the 1st respondent received the notice, he did not issue any reply and also did not pay the arrears of eight months rent as per the demand in the notice. It was further pleaded that on 1-5-1985, the petitioner/landlord came to Kakinada and met the 1st respondent and demanded him personally to vacate the schedule property and also to pay the arrears of rent. The 1st respondent refused to vacate the shop and also informed that he sent the rent payable in September and October 1984 by mail transfer and credited into the Bank account No. 139. Indian Overseas Bank, visakhapatnam as mentioned above. ( 7 ) THE 1st respondent filed a counter denying all the allegations. It was further pleaded in the counter as hereunder: the petition schedule premises was let out by the petitioner originally to one p. Venkatarao for running a Tea Stall. The said tenant could not pay the rent and as such he intended to vacate the premises. At that time it was agreed that the respondent should take the premises on lease. The petitioner also agreed for occupying the premises by him and it was also stipulated that the advance amount of Rs. 2000/- which p. Venkatarao paid to the petitioner should be treated as advance paid by him because he paid away the amount to P. Venkatarao. Thereafter, he occupied the premises in october 1982. The agreed monthly rent was rs. 200/ -. 2000/- which p. Venkatarao paid to the petitioner should be treated as advance paid by him because he paid away the amount to P. Venkatarao. Thereafter, he occupied the premises in october 1982. The agreed monthly rent was rs. 200/ -. It was further pleaded that the respondent/tenant is a very poor man and carries on business of mediators balance (?) and as such he told the petitioner that he is not able to pay the rent every month and he would pay money as and when funds are available with him for which the petitioner agreed and he gave bank account number to deposit the amount. It was also further pleaded that from the beginning the respondent/tenant had been crediting amounts into the said bank account as and when funds are available with him. He was also paying electricity consumption charges and there is no due date as such fixed between them. The allegation that the rent is payable on first of next month is not correct. It was pleaded that from some time past the petitioner began demanding the respondent to increase the rent for which he pleaded inability. The petitioner filed the petition with a view to either coerce the respondent or to increase the rent or to lease out the property for higher rent after he vacates. It was pleaded that in view of the arrangement between them, the rents paid by the respondent are not irregular and the respondent never committed any default. After receiving the letter from the petitioner, he met the petitioner and at that time also the petitioner reiterated his stand for enhancement of rent. The petitioner filed this petition with ulterior motive. ( 8 ) DURING the pendency of the enquiry, the 1st respondent died and hence respondents 2 and 3 were added as legal representatives as already referred to supra and respondents 2 and 3 had adopted the counter already filed by the 1st respondent. The landlord had examined himself as p. W. 1 and Exs. A-1 and A-2 were marked and the 3rd respondent was examined as r. W. 1 and R. W. 2 was examined to support the case as spoke to by R. W. 1. Exs. B-1 to b-3 were also marked. The landlord had examined himself as p. W. 1 and Exs. A-1 and A-2 were marked and the 3rd respondent was examined as r. W. 1 and R. W. 2 was examined to support the case as spoke to by R. W. 1. Exs. B-1 to b-3 were also marked. On the respective pleadings of the parties, the learned Rent controller had framed the following Points for consideration: (1) Whether the respondents have committed wilful default in payment of rents? (2) To what relief ? after discussing all the aspects in detail, the learned Rent Controller came to the conclusion that the stand taken by the respondents/tenants relating to payment of rs. 2000/- is true and the same is liable to be adjusted. A finding also was recorded that the landlord was in the habit of receiving rents at certain irregular intervals of two or three months without any protest whatsoever and all of a sudden to make it a ground for eviction, the plea of wilful default was raised as a ground. The said findings had been recorded on appreciation of evidence of p. W. 1, R. W. 1 and R. W. 2 and also Ex. A-1 - office copy of the notice dated 13-4-1985 and ex. A-2 - postal acknowledgement. Ex. B-1 - communication relating to petition schedule shop and Ex. B-2 - letter written by P. Venkatarao in favour of respondent s father. The Revision petitioner/landlord, aggrieved by the same, had preferred r. C. A. No. 33/94 on the file of Appellate authority/principal Senior Civil Judge, kakinada and the learned Judge, at para 6 of the Judgment, had framed the Point for consideration as hereunder: (1) Whether the arrangement pleaded by deceased lst respondent in R. C. C. in his counter relating to payment of advance of Rs. 2000/- is true? (2) Whether the respondents herein have committed wilful default in payment of rents for the demised premises prior to the filing of R. C. C. and subsequent to filing of R. C. C. ? the learned Appellate authority also after considering the material available on record ultimately came to the conclusion that respondents/tenants were able to prove the payment of advance amount of Rs. the learned Appellate authority also after considering the material available on record ultimately came to the conclusion that respondents/tenants were able to prove the payment of advance amount of Rs. 2000/- to the Revision petitioner/landlord and also that there was no wilful default on the part of the respondents / tenants in payment of rents and had accordingly confirmed the order of the learned Rent Controller. Aggrieved by the same, as already referred to supra, the revision petitioner/landlord preferred the present Civil Revision Petition. ( 9 ) I had given my anxious consideration to the findings recorded by the Appellate authority from paras 7 to 13 of the Judgment. As can be seen, the Appellate authority had dealt with all the aspects in detail. The oral and documentary evidence had been appreciated at length and ultimately finding had been recorded relating to payment of rs. 2000/- and also yet another finding had been recorded relating to the explanation given for irregular payments at two or three months, as the case may be. A specific finding was recorded that without any protest, the revision petitioner/landlord had been receiving and accepting such rents and all of a sudden just to make it a ground for eviction, the said plea was raised. I am thoroughly satisfied that these findings are findings in relation to facts and at any rate it cannot be said that the Tribunals below had adopted any erroneous approach in the recording of such findings since such findings are based on evidence. Relating to payment of rs. 2000/-, there is the evidence of R. W. 1 well supported by the evidence of R. W. 2. In any view of the matter, I do not see any reason to disturb the said concurrent findings recorded by both the Tribunals below. It is needless to say that since the Revision petitioner/landlord had miserably failed to establish the ground of wilful default, the relief was rightly negatived by the learned rent Controller and the Appellate authority as well. Hence, the said findings are hereby confirmed. ( 10 ) ACCORDINGLY, the Civil Revision petition shall stand dismissed as being devoid of merits. No costs.