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2004 DIGILAW 1329 (AP)

Chowdhary Srikrishna v. Sardar Huzur Singh

2004-11-09

P.S.NARAYANA

body2004
( 1 ) THE unsuccessful landlord aggrieved by the concurrent findings recorded by both the Courts below negativing the relief of eviction prayed for, on the ground of wilful default in R. C. No. 384/96, and on the ground of material alteration impairing the utility of the building in R. C. No. 495/98, had preferred the present C. R. Ps. , c. R. P. No. 5228/2004 and C. R. P. No. 5229/2004, as against the order made by the Chief Judge, City Small Causes Court, Hyderabad - appellate Authority in R. A. No. 109/2001 and in R. A. No. 443/2000, respectively. It is not in controversy between the parties that the landlord has been filing several rent control cases praying for eviction. ( 2 ) SRI Bajrang Singh Thakur, the learned Counsel representing the revision petitioner - landlord in both the C. R. P. s made the following submissions:- the learned Counsel had drawn the attention of this Court through the conditions specified in Ex. P. 1 - the rental deed and the admissions made by R. W. 1 relating to the binding nature of these conditions and would maintain that inasmuch as the rents had been sent to the wrong address that itself will amount to wilful default. The learned Counsel explained in detail the terms and conditions in general in Ex. P. 1 and condition Nos. 5, 9 and 13 in particular. The learned Counsel also pointed out that there cannot be any doubt or controversy that condition No. 5 had been violative though it is binding between the parties. As far as the alterations are concerned, the learned Counsel would contend that condition No. 9 specifies that the written consent is essential and in the light of the same, the ground had been proved by the landlord. The learned Counsel placed reliance on several decisions in this regard. The learned Counsel also pointed out to the relevant portions of the findings recorded by both the c. R. P. Nos. 5228 and 5229 of 2004 (Common Order) (PSN. J) learned Rent Controller and also the Appellate Authority. The learned counsel also had pointed out to Ex. R. 5 and would comment that neither Vasant Rao Kulkarni nor R. A. Krishna, the Advocates, had been examined in relation to Ex. R. 5 and hence Ex. R. 5 was not proved. 5228 and 5229 of 2004 (Common Order) (PSN. J) learned Rent Controller and also the Appellate Authority. The learned counsel also had pointed out to Ex. R. 5 and would comment that neither Vasant Rao Kulkarni nor R. A. Krishna, the Advocates, had been examined in relation to Ex. R. 5 and hence Ex. R. 5 was not proved. Certain submissions are made in relation to certain of the aspects constituting wilful default in the light of the subsequent events. The provisions of Sec. 10 of the A. P. Buildings (Lease, Rent and eviction) Control Act, 1960, in general, and Sec. 10 (2) (i) of the said act, in particular, had been referred to by the learned Counsel. The learned Counsel while concluding had pointed out that at any rate the appellate Authority had not appreciated all the aspects in proper perspective and had drawn the attention of this Court through the relevant findings recorded by the Appellate Authority and would contend that these findings may not be sufficient so as to confirm the order made by the learned Rent Controller. ( 3 ) ON the contrary, Sri Vilas Afzul Purkar, the learned Counsel representing the respondent - tenant in both the C. R. Ps. , had pointed out that this is a case where the landlord was not examined, but the father of the landlord - the G. P. A. Holder was examined. The learned counsel in all fairness would maintain that though he is not convarsing this ground with all seriousness, the fact remains that there is no convincing, acceptable evidence placed on the side of the landlord to prove the ground of wilful default in R. C. No. 384/96 and the ground of material alteration impairing utility of the building in R. C. No. 495/98. The learned Counsel also pointed out to the relevant portion of the findings recorded at para 9 while answering point No. 2 by the learned rent Controller in R. C. No. 384/96 and would contend that this reasoning is well justified. The learned Counsel also pointed out to the other findings which had been recorded by the learned Rent Controller in detail by referring to the relevant portion of the evidence also and would comment that the Appellate Authority had confirmed these findings and hence, the same need not be interfered with. The learned Counsel also pointed out to the other findings which had been recorded by the learned Rent Controller in detail by referring to the relevant portion of the evidence also and would comment that the Appellate Authority had confirmed these findings and hence, the same need not be interfered with. The learned counsel also had taken this Court through the pleadings in r. C. No. 495/98 and the evidence available on record and would contend that just carrying on some carpentry work will not amount to any alteration impairing the utility of the building and hence, it cannot be said that condition No. 9 of Ex. P. 1 had been in any way violated. ( 4 ) HEARD the Counsel on record. ( 5 ) AS can be seen from the material available on record, r. C. No. 384/96 was filed when the landlord was a minor and as per orders in I. A. No. 49/2000 dated 23-2-2000 the father was discharged from guardianship. The petition was filed for eviction of the tenant on the ground of late payment of rent for the months of May and June, 1996 on 11-7-1996 and for the non-payment of rent for July, 1996 and during the pendency of the petition, I. A. No. 645/2000 was filed to amend the petition regarding the wilful default in payment of rent for the period May, 2000 to October, 2000. The facts had been narrated in detail in the respective pleadings of the parties. . The learned Rent controller recorded the evidence of P. W. 1 - the father of the landlord and R. W. 1 - the tenant, marked Ex. P. 1 to Ex. P. 23 and Ex. R. 1 to R. 40. The learned Rent Controller also framed the following points for consideration :-1) Whether this petition is filed for the eviction of the respondent in respect of the entire property covered by ex. P. l rental agreement which consists the mulgi and the open space in front of it or only for the mulgi 2) Whether the rent is payable by 10th of every month in advance or in the succeeding month and whether the parties adopted the practice of the payment and receipt of rent in the succeeding month? 3) Whether the respondent committed default in payment of rent for the period May to July, 1996? 3) Whether the respondent committed default in payment of rent for the period May to July, 1996? If so, whether that default is wilful? 4) Whether the respondent committed default in payment of rent for the period May, 2000 to October, 2000? If so, whether that default is wilful?on appreciation of evidence, findings in detail had been recorded and ultimately the relief was negatived. While answering point No. 2 at para 9, the learned Rent Controller observed "their evidence is oath against oath. As usual P. W. I deposed in support of his contention and he denied the suggestions given to him and R. W. 1 deposed in support of his contention and denied the suggestions given to him. Either of them have not examined any other person working in their business establishments or the persons who know about the payment of rent etc. , to substantiate their respective contentions. So therefore the oral evidence adduced by the parties which is the evidence of p. W. I and R. W. 1 is not sufficient for the Court to come to a definite conclusion either accepting the contention of the petitioner or the contention of the respondent. " No doubt, several other findings had been recorded in detail. The Appellate Authority at para 8 framed the following point for consideration :-"whether the order of the Rent Controller is liable to be set aside?" appellate Authority recorded certain reasons at paras 9, 10 and 11 and ultimately dismissed the appeal confirming the order of the learned rent Controller. At para 11, the Appellate Authority observed as hereunder:- with regard to clause 13 of Ex. P. I agreement, it is for the petitioner to prove about the documents and subsequent to Ex. P. 1 no other rental deed was executed and the terms and conditions are in force. Since this Court has already accepted the findings of the Rent Controller that the parties by their conduct in the course of time deviated from clause 5 of Ex. P. I and P. W. I also never suggested to the respondent that clause 13 is not binding on them. By the time of filing of this petition, the rent for July, 1996 was not fell due and the same view was expressed by the Rent controller Rent Controller that the rent for June, 1996 was paid in time i. e. , on 11-7-1996 under Ex. By the time of filing of this petition, the rent for July, 1996 was not fell due and the same view was expressed by the Rent controller Rent Controller that the rent for June, 1996 was paid in time i. e. , on 11-7-1996 under Ex. R. 5. Therefore, there is no deviation for clause No. 13. The learned Rent controller elaborately discussed the facts and holds that there is no default committed by the respondent - tenant from May to July, 1996. This point arose for consideration when the landlord filed LA. No. 645/2000 for amendment and as per that amendment para 3 (a) was added. In para 3 (a) the petitioner stated that the respondent committed wilful default in payment of rent from May, 2000 to october, 2000 amounting to Rs. 4,500/- and the respondent filed additional counter stating that he sent the rent through mo i. e. , May, 2000 to October, 2000 by way of three money orders under Ex. P. 21 to Ex. P. 23 and the same was received by P. W. I on 21-10-2000. I. A. 645/2000 was filed on 11-10-2000. Therefore, by the date of filing i. A. No. 645/2000 the rent was already sent through Money order and the same was accepted by the landlord. P. W. I also admitted about the receipt of money orders for the rent of May, 2000 to October, 2000 on 21-10-2000. The burden is heavy on the landlord to show that the default committed by the tenant was wilful and deliberate and conscious on the part of the tenant. The Rent Controller holds that the respondent was never negligent in sending the rent and due to the above circumstances which are beyond his control the rent for May to August, 2000 was not sent. The conduct of the respondent was not deliberate and conscious and it is not a supine indifference. This finding of the Rent controller cannot be interferred with by this Court and the order of the Rent Controller is liable to be confirmed. "submissions at length were made relating to sending the rent to a wrong address and how the same would amount to wilful default. Much comment was made in relation to Ex. R. 5, on the ground that none concerned with Ex. R. 5 was examined by the tenant. "submissions at length were made relating to sending the rent to a wrong address and how the same would amount to wilful default. Much comment was made in relation to Ex. R. 5, on the ground that none concerned with Ex. R. 5 was examined by the tenant. Several of the documents were relied on by both the parties and the documentary evidence no doubt had been taken into consideration. Strong reliance was placed on the under-noted decisions:- m. K. MUKUNTHAN v. M. PASUPATHI, 2001 6 SCC 13 . TEEGALA SATYANARAYANA v. G. S. BHAGWAN, 1996 1 RCL 27. LATE SRI GOPISETTY SHANKARAIAH v. M/s. RAVI, CO. , 2002 1 Anwr 124. FATIMA BI v. MOHD AKBAR HUSSAIN, 1976 2 An. W. R. 31. R. GOVINDHAMMAL v. A. NIRMALA, 2003 1 Rent Controller 18. VIJAY AMBA DAS DIWARE AND OTHERS v. BALKRISHNA WAMAN DANDE AND ANOTHER, 2000 4 S. C. C. 126. SMT. JAHEJO DEVI AND OTHERS v. MOHARAM ALI, 1988 1 SCC 372 . and ATMA RAM v. SHAKUNTALA RANI, 2005 7 S. C. C. 211. Certain admissions relating to the terms and conditions made by r. W. 1 also had been pointed out. The relevant conditions in Ex. P. l which had been specifically pointed out are as hereunder:-"the tenant shall pay the rent on or before the 10th of each and every current month according to the Gregarian Calendar. "likewise, condition No. 9 reads as hereunder:-"the tenant shall not be entitled to make additions or alterations to the premises herein let out without the written consent of the landlady. "condition No. 13 reads as hereunder:-"if the tenant commits default in payment of any three months rent, the landlady shall be entitled to evict the tenant. " ( 6 ) IT is no doubt true that condition No. 9 concerns with the other ground of material alteration impairing the utility of the building. The evidence of P. W. 1 and R. Ws. l and 2 and Ex. P. 1 to Ex. P. 17 and hxs. X. 1 and X. 2 recorded in R. C. No. 495/98 had been pointed out in this regard. The learned Rent Controller framed the following point lor consideration :- "whether the respondent had made additions and alterations which impairs materially the value or utility of the building and respondent is liable for eviction on this ground? P. 17 and hxs. X. 1 and X. 2 recorded in R. C. No. 495/98 had been pointed out in this regard. The learned Rent Controller framed the following point lor consideration :- "whether the respondent had made additions and alterations which impairs materially the value or utility of the building and respondent is liable for eviction on this ground? on appreciation of evidence, ultimately, the same was dismissed and the Appellate Authority had confirmed the same in R. A. No. 443/2000. It was clearly observed by the Appellate Authority that absolutely there is no material that the present construction made by the tenant is materially impaired the value and utility of the demised premises. Reliance was placed on BAIJ NATH v. SHAIL KUMAR, 2003 1 R. C. J. 304 (Pandh ). GURBACHAN SINGH v. SHIVALAKAR RUBBER industries, 1996 2 S. C. C. 626. and SHANTHI TARACHAND v. C. S. NARASIMHA RAO, 2000 4 A. L. D. 578. . The evidence available on record had been pointed out by both the Counsel. Certain of the admissions made by both P. W. 1 and R. W. 1 had been pointed out in relation to this ground too. ( 7 ) AS already referred to supra, except the father of the landlord - the G. P. A. Holder examined himself, as PW. 1 no other evidence had been placed before the Court. However, submissions at length were made in relation to what is known as technical default, which would amount to wilful for violation of the conditions. It is peculiar that though this landlord and tenant are fighting several litigations for reasons best known in the R. C. , filed on the ground of wilful default, except p. W. 1, the father - G. P. A. Holder of the landlord and the tenant as r. W. I alone had been examined. It is needless to say that the very landlord had attained majority, may be ther father may be having the knowledge of all the aspects this Court is not inclined to express any opinion relating to the same. It is needless to say that the very landlord had attained majority, may be ther father may be having the knowledge of all the aspects this Court is not inclined to express any opinion relating to the same. Be that as it may, on a careful scrutiny of the findings which had been recorded by the learned Rent Controller and also the Appellate Authority, mainly the relief had been negatived for want of sufficient evidence, in the light of the concurrent findings which had been recorded by both the learned Rent Controller and the appellate Authority, normally, the Revisional Court not to interfere with such concurrent findings. But, however, on appreciation of the way in which the findings had been recorded by the Appellate authority though it may not be necessary to repeat the complete evidence available on record, inasmuch as all the aspects had not been taken into consideration, without expressing any opinion on the other merits and demerits of the matter, in both the matters, this Court is inclined to give an opportunity to both the parties in these matters to adduce further evidence if they choose to do so on all the aspects especially in the light of what had been observed by the learned Rent controller in relation to the insufficiency of the evidence. Accordingly, the impugned orders made by the Appellate Authority in r. A. No. 443/2000 and R. A. No. 109/2001 are hereby set aside and the matters are remanded to the Appellate Authority for the purpose of affording opportunity to both the landlord and the tenant to adduce further evidence of the parties choose to do in the facts and circumstances of the case. Accordingly, the matters are remanded to the Appellate Authority for the purposes indicated above. It is needless to say that the Appellate Authority to dispose of these matters as expeditiously as possible after affording opportunity to both the parties to let in further evidence in view of the observations made above. The C. R. Ps. , are hereby allowed to the extent indicated supra. No order as to costs.