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Andhra High Court · body

2005 DIGILAW 1061 (AP)

Mohd. Gulam Mustafa v. Mohd. Abdul Jabbar

2005-11-10

P.S.NARAYANA

body2005
P. S. NARAYANA, J. ( 1 ) MOHD. ABDUL Jabbar, hereinafter referred to as "landlord" is the petitioner in R. C. No. 497/94 on the file of IV Additional Rent controller, Hyderabad. Mohd. Ghulam Mustafa, hereinafter referred to as "tenant" is the respondent in R. C. No. 497/94 on the file of IV additional Rent Controller, Hyderabad. The learned Rent Controller on the strength of the evidence available on record recorded positive findings relating to wilful default for the period from September 1993 to august 1994, bona fide personal requirement of the landlord and also denial of title of the landlord by the tenant as mala fide and ordered eviction. The tenant preferred R. A. No. 94/2000 and the landlord preferred Cross Objections relating to adverse finding numbered as r. A. No. 164/2000 on the file of Additional Chief Judge, City Small causes Court, Hyderabad and the Appellate Authority confirmed the findings relating to wilful default and mala fide denial of title but however reversed the finding recorded in relation to bonafide personal requirement. On behalf of landlord Exs. A-30 to A-35, certified copy of the execution of warrant, certified copy of panchanama, certified copy of delivery of possession, receipt, certified copy of undertaking and certified copy of list of articles were marked before the Appellate authority and the Appellate Authority while confirming the order of eviction on two grounds reversed the same on one ground and aggrieved by the same, the tenant preferred C. R. P. No. 2144/2005 and the landlord preferred C. R. P. No. 3993/2005 being aggrieved by the reversal of one of the grounds and also that part of the finding relating to wilful default. These Revisions are preferred both by the tenant and the landlord respectively under Section 22 of the A. P. Buildings (Lease, Rent and eviction) Control Act 1960, hereinafter in short referred to as "act" for the purpose of convenience. Pleadings in R. C. No. 497/94 : ( 2 ) PLEADING of the landlord : The landlord pleaded in r. C. No. 497/94 as hereunder : originally the suit mulgi was jointly purchased by the petitioner and his five brothers and subsequently it was released in favour of the petitioner in December 1988 and a release deed was executed on 30th march 1989. The respondent is the tenant in the suit mulgi from 5th november 1978 and at present the rent is Rs. 660/- exclusive of electricity charges. Immediately after the release in December 1988 the petitioner as well as the brothers of the petitioner asked the respondent to pay the future rents to the petitioner and also to vacate the mulgi. The respondent is a chronic and wilful defaulter in payment of monthly rents and he deliberately and intentionally failed to pay the rents from January 1989 to August 1994 at the rate of Rs. 660/- per month. In spite of repeated demands, he became a wilful defaulter. The respondent in order to escape wilful default filed R. C. No. 220/89 on the file of I additional Rent Controller, Hyderabad seeking permission to deposit the rents against the petitioner as well as the brothers of the petitioner. The respondent had also issued a legal notice dated 25-2-1989 to the petitioner as well as the other brothers of the petitioner and the petitioner also issued a reply to it and directing to pay rents to the petitioner from the month of January 1989 and the respondent failed to comply with the notice and filed the said petition for deposit of rents. The brothers of the petitioner also filed counter in R. C. No 220/80 property had been released in favour of the petitioner and demanded the respondent to pay the rents to the petitioner. After due enquiry r. C. No. 220/89 was dismissed on 14th September 1993 and after the dismissal the respondent failed to pay the rents to the petitioner. The brothers of the petitioner also filed counter in R. C. No 220/80 property had been released in favour of the petitioner and demanded the respondent to pay the rents to the petitioner. After due enquiry r. C. No. 220/89 was dismissed on 14th September 1993 and after the dismissal the respondent failed to pay the rents to the petitioner. The petitioner carries on bangle business and he used to attend the exhibitions i. e. , Urus and Jatras business in Hyderabad city and the family of the petitioner had grown up and the petitioner is facing great difficulties in securing the livelihood from the petty business of selling the bangles and thus the petitioner intends to carry on the business of bangles and imitation jewellery in the suit mulgies and the locality of lad Bazar is well known for the business of the bangles and imitation jewellery and the petitioner demanded the respondent to vacate and handover the possession of the suit mulgi and the respondent in order to harass is bent upon to file the suit after the suit in one court or the other and failed to vacate the suit mulgi. The persona; requirement of the petitioner is bona fide, genuine and pressing and he is not having any other non-residential mulgi in the twin cities of Hyderabad and secunderabad. Hence the petition for eviction. ( 3 ) PLEADING of the tenant : The tenant resisted the eviction petition by filing a counter with the following submissions: the petitioner is one of the owners of the non-residential premises i. e. , the suit premises. The respondent denied that subsequently the suit premises was released in favour of the petitioner and neither the petitioner nor any of his five brothers had ever informed the respondent about the alleged relinquishment and the petitioner had failed to mention whether the said relinquishment was ever registered and the ownership was ever transferred. The respondent/tenant admitted the monthly rent was enhanced to Rs. 660/- from 5-3-1985. The petitioner and his five brothers again demanded to enhance the monthly rent which was refused by the respondent and from then the petitioner and his five brothers are bent upon to harass the respondent. The respondent/tenant admitted the monthly rent was enhanced to Rs. 660/- from 5-3-1985. The petitioner and his five brothers again demanded to enhance the monthly rent which was refused by the respondent and from then the petitioner and his five brothers are bent upon to harass the respondent. The petitioner and his five brothers again illegality tried to close the shutters of the respondent s rented mulgi and as such the respondent was forced to file O. S. No. 4086/86 on the file of the Assistant Judge, City Civil Court and the said suit was decreed with costs on 23-10-1991. The petitioner and his five brothers again illegally tried to close the common passage leading to the suit premises and the respondent again forced to file a suit O. S. No. 771/94 on the file of VII Assistant Judge and obtained temporary injunction orders restraining the petitioner and his brother from closing the common passage and the said suit is still pending. The petitioner nor his five brothers never informed the respondent about the alleged release nor they asked the respondent to vacate the suit premises. The respondent admitted that he has executed the rental agreement in favour of all the six owners and the rents were paid to the owners through the petitioner alone. The respondent was very prompt in payment of rents since 5th november 1978 and the petitioner and his brothers accepted the rents till december 1988 but thereafter they refused to receive the rents for the month of January 1989 and February 1989 though the money orders were sent for three times and the money orders were refused as the respondent refused to enhance the rents. The respondent is regularly depositing the rents in court since 1-4-1989 to the credit of r. C. No. 220/89 and had also deposited the rents for the month of november and December 1994 on 2-11-1994 and the respondent had no objection for the petitioner to receive the said deposited amount. The notice along with the xerox copies of the bank challans were sent to the petitioner under certificate of posting. The respondent denied that he filed R. C. No. 220/89 to escape the ground of wilful default. He sent the rents for January 1989 and February 1989 for three times and they were refused without any reason. The notice along with the xerox copies of the bank challans were sent to the petitioner under certificate of posting. The respondent denied that he filed R. C. No. 220/89 to escape the ground of wilful default. He sent the rents for January 1989 and February 1989 for three times and they were refused without any reason. The money orders were sent in the name of the petitioner alone and there was no justification to refuse the same. The said R. C. No. 220/89 was dismissed on 14-9-1993 as the respondent had not complied with Section 8 of the Rent, Control Act. The respondent came to know about the dismissal of R. C. No. 220/89 on 14-9-1993 and he applied for a certified copy of the said order on 22-9-1994 and the same was awarded on 1-10-1994 and till the receipt of the eviction petition along with the summons of the case, the respondent was not aware about the dismissal order This fact was never intimated by the Counsel of the petitioner. The rents were deposited upto date to the credit of R. C. No. 220/89. The respondent cannot be deemed to be a defaulter. The respondent had bona fide deposited the rent in the Court as per the instructions of his Advocate and subsequently orders wee passed in Section 11 petition in I. A. No. 888/94 in the present R. C. and the respondent under protest had made deposit of double payment in the Court to the credit of R. C. No. 497/94 and as such he had not committed any default. The respondent denied that the petitioner presently is carrying on the bangles business and he used to attend the exhibitions i. e. , Urus, Jatras in various districts. It is stated that the petitioner is the owner of a big market known as Bilal market situate at Lad Bazar, Hyderabad and is having four big mulgies in the said market which are vacant and are available for the business of the petitioner and his family. The petitioner is running his business in his own mulgi Mo. 21-2-266 situate at Lad Bazar, Hyderabad under the name and style of M. A. Jabbar Bangles Stores and he is also having his phone no. 524960 in the said mulgi No. 21-2-266. The petitioner is running his business in his own mulgi Mo. 21-2-266 situate at Lad Bazar, Hyderabad under the name and style of M. A. Jabbar Bangles Stores and he is also having his phone no. 524960 in the said mulgi No. 21-2-266. The petitioner is having his own shop under the name and style of Meena Bangle Bazar at Lad bazar, Hyderabad and the alleged personal requirement of the petitioner is not b relief and the respondent is an old tenant of the Bangles business and for these reasons the petition may be dismissed. ( 4 ) POINTS for consideration framed by the learned Rent controller : 1. Whether the respondent has committed wilful default from january 1989 to August 1994 ? 2. Whether the petitioner is having personal requirement for the suit mulgi ? 3. Whether the respondent has denied the title of the petitioner and whether it is a bonafide denial ? ( 5 ) EVIDENCE available on record recorded by the learned Rent Controller :