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Andhra High Court · body

2005 DIGILAW 550 (AP)

M. Viswanatham v. P. M. Prakash

2005-06-24

P.S.NARAYANA

body2005
( 1 ) THE tenant-respondent in R. C. No. 691 of 1990 as against the order in R. C. No. 691 of 90 on the file of the 1st Additional Rent controller as confirmed in R. A. No. 559 of 1995on the file of the Additional Chief Judge, city Small Causes Court Hyderabad had preferred CRP No. 3596 of 2000. ( 2 ) THE tenant also filed another C. R. P. No. 3920 of 2000 as against the order made in R. A. No. 206 of 1996 on the file of the additional Chief Judge, City Small Causes court, Hyderabad which was preferred by the landlord, inasmuch as two grounds have been negatived, though eviction was ordered on other two grounds. Hence,both thec. R. Ps. are being disposed of by this common order. ( 3 ) FOR the purpose of convenience the parties hereinafter be referred to as landlord and tenant. ( 4 ) THE landlord filed R. C. No. 691 of 1990 on the file of the 1 st Additional Rent Controller hyderabad on the following grounds:- (1) Wilful default, (2) Bona fide requirement-Additional accommodation (3) Mala fide denial of title (4) Causing damage to the petition schedule premises impairing the utility of the building. ( 5 ) THE learned Rent Controller recorded the evidence of landlord as P. W. 1 and the tenant as R. W. 1 and marked Exs. A-1 toa-17 and Ex. B-1 to B-15 and ordered eviction only on the grounds of willful default and bona fide requirement-additional accommodation. But, however, negatived the other two grounds mala fide denial of title and causing damage to the building impairing the utility of the building. As already referred to supra, both the landlord and the tenant preferred R. A. No. 206 of 1996 and R. A. No. 559 of 1995 respectively on the file of the Additional Chief judge, City Small Causes Court, Hyderabad and the learned appellate authority had dismissed R. A. No. 559 of 1995 conforming the order of the learned Rent Controller and partly allowed R. A. No. 206 of 1996, so far it relates to ground of denial of title. But, however, cofirmed the finding relating to causing damage to the building materially impairing the utility of the building. As against both these orders made by virtue of a common judgment the present C. R. Ps. are preferred. But, however, cofirmed the finding relating to causing damage to the building materially impairing the utility of the building. As against both these orders made by virtue of a common judgment the present C. R. Ps. are preferred. ( 6 ) HERE itself it may be stated that the landlord had not preferred any C. R. P. questioning the portion of the order of the appellate authority confirming the findings on the ground of the damage caused to the building impairing the utility of the building and thus the concurrent finding relating to the said ground had attained finality. Now this court is concerned with the other three grounds. ( 7 ) SUBMISSIONS at length were made by sri Sarathy, the learned senior counsel representing the revision petitioner-tenant and Sri K. K. Waghray the learned counsel representing the respondent-landlord. ( 8 ) SRI Sarathy, the learned counsel representing tenant would maintain that as can be seen from para 10 of the counter and also the evidence of the tenant, there is no mala fide denial of the title and in view of the close relationship between tne parties, he had explained the circumstances and nothing beyond and hence, the same cannot be termed as mala fide denial of title and hence the order of refusal made by the appellate authority in this regard cannot be sustained. ( 9 ) THE learned senior counsel also would further contend thatthemotherof the landlord in fact knows all the affairs. But, for reasons best known, she was not examined and adverse inference may have to be drawn for non-examination of the mother. On the aspect of the bona fide personal requirement, the learned counsel made an attempt to show that it is doubtful whether this is a case of requiring the building as additional accommodation or bona fide personal requirement. But, however, since the building is separated by a lane, the same may fall under the ground of bona fide personal requirement only. The learned counsel had taken this Court, through the evidence available on record and would maintain, the fact that the sufficient accommodation is available inasmuch as it is a double storied building had not been seriously considered. The learned counsel also would submit that the portion which is being occupied by the tenant is a very small portion and the landlord without any just cause intends to throw the tenant out. The learned counsel also would submit that the portion which is being occupied by the tenant is a very small portion and the landlord without any just cause intends to throw the tenant out. On the aspect of wilful default the learned senior counsel pointed out to the evidence of P. W. 1 and would maintain that there is no practice of giving the receipts as accepted by P. W. 1. But the relevant period from April, 1990 to September, 1990 the nonpayment if any cannot be said to be wilful default, in view of the fact that the same may have to be adjusted through property tax which was paid. The learned counsel had taken this Court through respective pleadings of the parties, the evidence available on record and the findings recorded by the learned Rent Controller and the Appellate authority and also would comment that the fact that the aspect of double storied building and the evidence relating thereto had not been appreciated in proper perspective, the finding is perverse finding and the same can be interfered with even in revision. The learned senior counsel also pointed out that there is another building standing in the name of the mother of the landlord at baghlingampally and this aspect was not seriously considered by the Courts below. The learned counsel placed reliance in achutananda Baidya v. Prafullya Kumar gayen, AIR 1997 SC 2077 . ( 10 ) PER contra Sri K. K. Waghray learned counsel representing the landlord had taken this Court through the relevant portion of deposition of R. W. 1 wherein he had specifically denied the title. The learned counsel also pointed out to the findings recorded by the appellate authority in this regard and the decision on the point. Hence the counsel would contend that the reversing finding recorded by the appellate authority is just and in accordance with law. The learned counsel while further making his submissions would contend on the other grounds that concurrent findings had been recorded by both the Courts below and there is no perversity in the recording of those findings. The fact that the accommodation available is double storied building also had been taken note and the relevant portions of the findings had been pointed out by the learned counsel. Hence, the counsel would submit that absolutely, there is no perversity. The fact that the accommodation available is double storied building also had been taken note and the relevant portions of the findings had been pointed out by the learned counsel. Hence, the counsel would submit that absolutely, there is no perversity. Apart from this aspect of the matter, the learned counsel pointed out that the question of adjustment of property tax or payment of property tax for the relevant period will not arise at all and concurrent findings had been recorded in this regard. There is clear finding that the default was committed from April, 1990 to september, 1990 and this is a finding of fact recorded by both the Courts and hence there is no need to disturb the same. ( 11 ) HEARD both counsel. ( 12 ) THE facts in short had already been referred to supra. ( 13 ) THE landlord sought eviction on four grounds which had been specified above and the Rent Controller ordered eviction on two grounds whereas the appellate authority ordered eviction on three grounds as far as one ground is concerned both the Courts had negatived the relief. The landlord pleaded in the eviction petition in R. C. No. 691 of 1990 on the file of 1st Additional Rent Controller hyderabad. "that the petitioner is the owner and landlord of the premises bearing no. 4-4-707 and 708 situated at kandeswamy Lane, Sultan Bazar hyderabad. The respondent is the tenant of the said premises on a rent of rs. 50/- per month exclusive of water, electricity and municipal charges. That the tenancy is oral and month to month. The rent is payable in the succeeding month. According to the landlord, the respondent is irregular in payment of rent and committed willful default in payment of rent from 1 -4-1990 to end of september 1990 for a period of six months at the rate of Rs. 50/- amount to rs. 300/- and therefore, the tenant is liable for eviction. " ( 14 ) THE same was resisted by the tenant by filing counter wherein it was pleaded:"the respondent resisted the petition contending inter alia that he is tenant of the petition schedule premises on a monthly rent of Rs. 50/-, but claimed that he never committed default or willful default in payment of rent as claimed by the landlord for a period of six months. 50/-, but claimed that he never committed default or willful default in payment of rent as claimed by the landlord for a period of six months. It is pleaded by the respondent/tenant that the petitioner is the sister s son of the respondent. The parents of the petitioner were having cordial relations from the beginning with the respondent and, therefore, he was allowed to occupy the premises free of rent from the year 1950 onwards. That the father of the petitioner died in the year 1954 and at the same time the respondent secured a job in the Railways. As there was no one to look after the petitioner s family and as there was no major male members to supervise the Regal Studio business, the respondent was forced to quit the job in Railways at the instance of the eldes and family members of the petitioner and began managing the entire affairs of the family and the said business. In consideration of the services of the respondent, the respondent with his family members was allowed to continue to stay in the said premises without any rent upto 1968. Thereafter, rent at Rs. 50/- per month was paid by the respondent at the instance of his sister smt. Mutyalamma for both the premises bearing H. No. 4-4-707 and 708. There is no practice of passing rent receipts he is close relatives. That the premises bearing No. 4-4-708 was purchased in the year 1963-64 and bath-room was constructed. The said premises was also given to the respondent. There was a long standing practice and understanding since beginning that he used to pay the property tax of the petition schedule premises which has to be adjusted towards rent and after paying the property tax, he used to hand over the receipts to the mother of the petitioner. Thus the respondent paid the same up to end of December, 1989 and there was no demand for property tax from the year 1986 onwards, hence he did not pay the same. While so, in January, 1990 he received a demand notice from MCH and forced to pay a sum of Rs. 997-20 ps. under receipt No. 6145/82 dated 11-1-1990. The said receipt was also handed over to the petitioner after payment in january, 1990 itself. While so, in January, 1990 he received a demand notice from MCH and forced to pay a sum of Rs. 997-20 ps. under receipt No. 6145/82 dated 11-1-1990. The said receipt was also handed over to the petitioner after payment in january, 1990 itself. In view of the understanding the rents for about 20 months from January, 1990 onwards stands adjusted for about 20 months. The respondent has to pay rent for the month of August, 1991 a sum of rs. 2-80 ps. There is no default or willful default in payment of rent. That the petitioner is having ample accommodation in possession in possession and the petitioner family consists of the petitioner, his wife his mother and his children only and that his nephew and the wife of his nephew are not residing along with the petitioner. They are residing with their parents in a house situated in front of the petition schedule premises. The petitioner got sufficient accommodation and the married sisters of the petitioner are staying separately along with their husbands and they do not visit and stay at the house of the petitioner as claimed by the petitioner. There is no hardship or in convenience to the petitioner. The petitioner got other residential and non- residential buildings in twin cities and this ground is created and concocted for the purpose of eviction. A suitable reply notice was given to the petitioner. The nephew and his wife are not dependent upon the petitioner. The parents of the Nephew of the petitioner are having their own house. Therefore, there is no need and wanted to dismiss the eviction petition. "this respondent never raised any unauthorized structure and that he is not using as dark room for his photographic business. The petitioner has made false and vague allegations. The respondent has not made any kind of unauthorized construction work nor any additions or alterations to the premises. That the premises let out continue to be in the same condition. That the respondent has been carrying out repairs attending usual wear and tear at his own expenses. Carrying out minor repairs for usual wear and tear does not amount to unauthorized construction and the very ground is devoid of merits and wanted to dismiss the same. ( 15 ) BEFORE the learned Rent Controller the landlord was examined as P. W. 1 and tenant was examined as R. W. 1. Carrying out minor repairs for usual wear and tear does not amount to unauthorized construction and the very ground is devoid of merits and wanted to dismiss the same. ( 15 ) BEFORE the learned Rent Controller the landlord was examined as P. W. 1 and tenant was examined as R. W. 1. Exs. A-1 to a-17andex. B-1 to B-15 were marked. P. W. 1 deposed about the facts pleaded in the petition in detail and the documents relied upon by him. He specifically deposed that the stand taken by the tenant whenever the Municipal tax is paid by him, the same is liable for adjustment out of the rents is false. This witness also specifically deposed about the wilful default committed for the relevant months. The evidence had been dealt in regard to Exs. A-1 to A-17. The tenant was examined as R. W. 1. No doubt, the tenant deposed about Exs. B-1 to B-15 in detail. Specific stand was taken by the tenant that during that period inasmuch as Municipal tax had been paid and the same to be adjusted and hence, it would not amount to wilful default. The evidence of both P. W. 1 and r. W. 1 had been appreciated in detail and the learned Rent Controlferarrivedataconclusion that during that period the tenant committed wilful default. It is needless to say that it is a finding of fact. The said finding of fact had been confirmed even by the appellate authority. The explanation given by the tenant had been specifically disbelieved by both the courts below and on that ground the findings are attacked as perverse findings. When on appreciation of the evidence the findings had been recorded such findings cannot be said to be perverse findings. On the aspect of bona fide personal requirement the main ground of attack is that the accommodation of double storied is available had been lost sight of and yet another ground of attack is that yet another building available at baghlingampaily, though standing in mother s name also had been lost sight of. On a careful scrutiny of findings recorded by both the Courts, these aspects also had been taken into consideration and findings had been recorded. Hence, the same cannot be said to be perverse findings. On a careful scrutiny of findings recorded by both the Courts, these aspects also had been taken into consideration and findings had been recorded. Hence, the same cannot be said to be perverse findings. Hence, the decision cited by the learned counsel for the petitioner in Achutananda Baidya v. Prafullya kumar Gayen may not be applicable to the facts of the present case. ( 16 ) ON the aspect of mala fide denial of title, it is no doubt true that it is a reversing finding. Apart from the stand taken in the counter, R. W. 1 deposed in his evidence that since the grandmother of the petitioner gave him the petition schedule premises without any document in his name, he demanded the title deeds of the petitioner in respect of the petition schedule premises. He further deposed that the grandmother of the petitioner gave the property to him. But, he has no document of title and when he asked to execute title deed in his favour for petition schedule premises from the petitioner the eviction petition was filed. No doubt he denied the suggestion that he denied the title of the petitioner in a mala tideway. In the light of the stand taken by him in the counter and the evidence let in, it is clear that the tenant claimed ownership to the property though there was no title deed standing in his name. This amounts to denying the title of the landlord. ( 17 ) IN Hyderabad Polmers Private Ltd. v. Smt. B. Hajari, it was observed: "the only inference that can be drawn from the above averments is that the petitioners denied the title of the landlord. Further in the cross-examination of the landlord, during the course of evidence, it was suggested that he was not the owner of the premises and that he had no locus standito file the eviction petition. From the above, it is clear that the petitioner had denied the title of the landlord to the petition schedule premises. Further in the cross-examination of the landlord, during the course of evidence, it was suggested that he was not the owner of the premises and that he had no locus standito file the eviction petition. From the above, it is clear that the petitioner had denied the title of the landlord to the petition schedule premises. In this context, I may refer to a judgment of the Supreme Court in m. Subbarao v. P. V. K. Krishna Rao ( (1989) 4 SCC 732 ) wherein it was held that:"a denial of title in the course of eviction petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition: it was further held that: to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of for feiture entitled by the tenant s denial of his character as a tenant in the written statement". From the above, it is clear that the landlord is entitled to take advantage of denial of title in the written statement/ counter-affidavit. I have already extracted the specific denial of title of the landlord in the written statement and also the suggestions made in the cross-examination during the course of evidence of the landlord. In view of the above and following the judgment of the supreme Court. I am of the view that the landlord is entitled to seek eviction of the petitioners as the denial of title is not bona fide. If the denial of title is bona fide, no suggestion would have been made in the cross-examination of the landlord. Further, the petitioner would have explained under what circumstances, he made the averment denying the title of the landlord in the written statement. If the denial of title is bona fide, no suggestion would have been made in the cross-examination of the landlord. Further, the petitioner would have explained under what circumstances, he made the averment denying the title of the landlord in the written statement. The very conduct of the petitioners in filing R. C. C. No. 300 of 1986 on the ground that there was a dispute between the landlord and his wife and that they refused to receive the rent and the further conduct of the petitioners in not depositing the rents till an application under Section 11 of the act was filed by the landlord and the suggestions made in the cross- examination in the evidence of the landlord coupled with the specific averments in the written statement/ counter indicates that the denial of title of the landlord to the petition schedule premises is not bona fide. ( 18 ) IN Majali Subbarao v. P. V. K. Krishna rao, the Apex Court held:"a denial of title in the course of eviction petition constitutes aground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition. " ( 19 ) HENCE, viewed from any angle, the finding recorded by the appellate authority while reversing the finding recorded by the learned Rent Controller in this regard also cannot be found fault. ( 20 ) IN view of the same, and on over all appreciation of the findings recorded by both the learned Rent Controller and also appellate authority this Court is satisfied that the order impugned in both the C. R. Ps. and common order made by the appellate authority cannot be found fault in any way. ( 21 ) ACCORDINGLY, the C. R. Ps. being devoid of merit they shall stand dismissed. ( 22 ) IN view of the close relationship between the parties this Court makes no order as to costs. However, the tenant is given three months time to vacate the premises.