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2005 DIGILAW 665 (AP)

Patangy Someswara Rao v. Goluguri Tata Reddy

2005-07-22

P.S.NARAYANA

body2005
( 1 ) THE petitioners in R. C. C. No. 10 of 1995 on the file of the Principal junior Civil Judge-cum-Rent Controller, vizianagaram, filed the present civil revision petition under Section 22 of Andhra Pradesh building (Lease, Rent and Eviction) Control act (hereinafter referred to as "the Act" ). ( 2 ) RESPONDENT No. l in R. C. C. No. 10 of 1995 died and respondent Nos. 2 to 4 were brought on record as legal representatives of respondent No. l in LA. No. 665 of 1997, dated 12-2-1998. The said r. C. C. was filed for eviction of tenant on the ground of wilful default in payment of rent from the month of January, 1995, to july, 1995, and also on the ground of bona fide requirement of personal use and occupation and yet another ground of composite lease agreement. The learned rent Controller recorded the evidence of pws. 1 and 2, RWs. 1 and 2 and marked exs. A-1 to A-13 and Exs. B-1 to B-36 and ordered eviction only on the ground of wilful default. Aggrieved by the same, the legal representatives of the tenant carried the matter by way of appeal in R. C. A. No. 3 of 2001 on the file of the Senior Civil Judge- cum-Rent Control Appellate Authority, vizianagaram, and the Appellate Authority reversed the said order and allowed the appeal holding that the tenant had not committed wilful default. The petitioners- landlords, aggrieved by the same, preferred the present civil revision petition. ( 3 ) SRI P. R. Prasad, learned Counsel representing the petitioners had taken this Court through the findings recorded by the appellate authority and would contend that the other ground of bona fide personal requirement though specifically raised, the same had not been considered despite the fact that the evidence is available on record. The learned Counsel also had taken this Court through the findings recorded by the learned Rent Controller in relation to the ground of wilful default and would contend that while reversing the same, the Appellate Authority had not considered all the aspects. The non- production of ledger extract and proof in relation to the payment of rent also had been urged before this Court. The non- production of ledger extract and proof in relation to the payment of rent also had been urged before this Court. ( 4 ) PER contra, Sri Vijay, representing sri Krishna Mohan Rao, the Counsel for the respondents in the civil revision petition would contend that the ground of bona fide personal requirement had not been raised before the appellate authority and no findings had been invited in this regard and hence it can be taken that the same had been abandoned or waived and at the revisional stage, the same cannot be permitted to be raised. ( 5 ) THE learned Counsel also has taken this Court through the evidence available on record Exs. B-1 to B-36 and specifically referred to Ex. B-28 and also would contend that if any default had been committed during the pendency of the proceeding, the remedy is to invoke Section 11 of the Act and even in this view of the matter, the non-production of the ledger extract, if any, would not assume any importance. ( 6 ) HEARD the Counsel on record. ( 7 ) THE revision petitioners-landlords filed RCC No. 10 of 1995 with the following allegations : "one Devatrasaue Ratnabhai was the absolute owner of the residential building bearing D. No. 7-3-6 situated in Rangireeju street, Vizianagaram and she borrowed a sum of Rs. 13,000/- from the respondent no. 1 on a pronote dated 13-9-1982 and leased out a portion of the said building " to the respondent which is the petition schedule building and she died on 28-1-1984 and the entire building was devolved on the petitioners under the will executed by her in sound and disposing state of mind dated 28-5-1974 and after the- petitioners became the owners of the said building, the petitioners borrowed a sum of Rs. 4,500/- on the pronote dated 7-12-1984 and continued the 1st respondent as a tenant of the building on a condition of his paying the sum of Rs. 300/- as rent per month payable on the first and every succeeding month and the 1st respondent agreed to take interest only on the sum of rs. 7,500/- without claiming any interest of the balance of Rs. 10,000/- and agreed to deduct the interest payable to him on rs. 7,500/- and paid the balance of rent @ rs. l87-50 ps. and the petitioners have discharged the sum of Rs. 7,500/- without claiming any interest of the balance of Rs. 10,000/- and agreed to deduct the interest payable to him on rs. 7,500/- and paid the balance of rent @ rs. l87-50 ps. and the petitioners have discharged the sum of Rs. 7,500/- and the interest thereon and the respondent was asked to enhance the rent by a sum of rs. 100/- the respondent agreed and has been paying the rent at the rate of Rs. 400/- per month but obtained the receipt for rs. 300/- only. The petitioners have been demanding the respondent to vacate the building as they required the same for providing the additional accommodation to their sisters who have been occupying the remaining portion of the building and also for the personal use and occupation of the second petitioner as he wished to reside in the said building, but the respondent did not vacate the building even though agreed lease period has to come an end by the end of december, 1994 and that the petitioners offered to pay a sum of Rs. 10,000/- left with them without interest and demanded the respondent to vacate the building in the month of January, 1995 the respondent postponed to receive the said amount and vacated the building and ultimately he send money order in the month of june, 1995 for a sum of Rs. 1,800/- and another money order in the month of july, 1995 for a sum of Rs. 300/- and the rent remitted by the respondent is less than the rent payable by the respondent and the petitioners refused to receive the said money orders and further the respondent is not entitled to pay the rent in lump sum for a period of 6 months contrary to the terms of the agreement, where under he is liable to pay the rent on the first day of every succeeding month and that the respondent is bound to pay rent @ Rs. 400/- per month on the first day of every succeeding month and thus, he committed wilful default in payment of rent for the month of January, 1995 till July, 1995 and that the petitioners have no other residential building of their own in Vizianagaram Municipality; a portion of the building was in the accommodation of their sisters and their family expanded and the portion in their occupation is quite insufficient for their requirements and further the second petitioner is going to take his residence in the petition schedule building immediately after the completion of his education and thus, the petitioners require the petition schedule building for their personal requirements and the respondent is therefore liable for eviction. Hence, this petition. " ( 8 ) ORIGINALLY, tenant-R-1, who is no more, filed counter as follows:"he admitted the relationship between the parties and also admitted that D. Ratnabhai leased out the petition schedule premises to the father of the respondents for residential and for non-residential purposes and that the said Ratnabhai borrowed a sum of Rs. 3,000/- from the respondent s father late G, Tatareddj during his life time and further admitted that the petitioners borrowed a sum of Rs. 4,500/- from the father of the respondents and agreed to continue to lease in favour of the father of the respondents on a monthly rent of rs. 300/- per month and the respondent further contended that there are no arrears of rent payable to the petitioners and it is agreed that the amount of rs. 10,000/- paid to be adjusted when the building in questibn vacates and denying that the fatner of the respondents paying rent @ Rs. 400/- per month but taking receipts for Rs. 300/- per month and the respondent further contended that there are no arrears of rent payable to the petitioners and it is agreed that the amount of rs. 10,000/- paid to be adjusted when the building in questibn vacates and denying that the fatner of the respondents paying rent @ Rs. 400/- per month but taking receipts for Rs. 300/- only and mat the petitioners have been demanding from time to time to enhance the rent but the respondents did not agree and further denied that the petition schedule building is required for additional accommodation to the sister of the petitioner and for personal requirements for the second petitioner as both the petitioners are residing in Srikakulam only and the ground of personal requirements is invented for the purpose of this petition and the petitioners cannot ask for eviction on the ground that the lease period is over and that the first petitioner informed to the father of the respondents that he would be coming to Vrzianagaram at his convenience and collect the rents and accordingly the first petitioner was coming to Vizianagaram for every two or theee or four or more months as the same is convenience to collect the rents and in the month of September, 1994 when the respondent s father objected for such system as it might be construed that the respondent s father is committing default and as such the respondent s father asked the petitioner to give every month and accept the rent, thereupon the first petitioner passed a letter dated 20-10-1995 that he has been collecting the rent for every three months as he was living outside vizianagaram and that the first petitioner has been so receiving the rent at his convenient upto December, 1994 as per the understanding and subsequently he did not come to Vizianagaram for about 6 months for collecting rents and the respondent s father sent the rent from january to June by money order and the same was refused and that the respondent s father sent another money order for rs. 300/- being the rent for July, 1995 and the said money order which was also refused without- issuing any notice to them and that the cause of action for filing this petition is created with all incorrect allegations and they pray the petition may be dismissed with costs. " ( 9 ) PWS. 300/- being the rent for July, 1995 and the said money order which was also refused without- issuing any notice to them and that the cause of action for filing this petition is created with all incorrect allegations and they pray the petition may be dismissed with costs. " ( 9 ) PWS. 1 and 2 were examined and exs. A-1 to A-13 were marked and RWs. 1 and 2 were examined and Exs. B-1 to B-36 were marked. ( 10 ) AS already referred to supra, the rent Controller ordered eviction only on the ground of wilful default. The same was reversed by the Appellate Authority in r. C. A. No. 3 of 2001. The Appellate authority, at para 14, recorded certain reasons and relied upon the evidence of rw. 1 in relation to the amount of Rs. 10,000/- being with landlord as advance amount and also recorded the other aspects inclusive of Ex. B-28 and ultimately reversed the finding recorded even on the ground of wilful default. ( 11 ) IN the present civil revision petition, a specific ground was raised that the other ground relating to bona fide personal requirement had not been considered. The Counsel representing respondents placed a strong reliance on Beharilal v. Bhuri Devi, AIR 1997 SC 1879 = 1997 (4) ald (SCSN) 3, Lala Kalyan Das v. Maqbul Ahmad, AIR 1918 PC 53 and d. L. Satyanarayana v. Kalasantha Radha krishnaiah, 1994 (1) ALT 526 , for the proposition that such ground, which had not been urged before the Appellate Authority, should be taken to have been abandoned or waived. It is no doubt true as against the adverse finding recorded relating to the bona fide personal requirement, no separate appeal, as such, had been preferred by the landlords. It is pertinent to note that the landlords were successful before the rent Controller-original authority, though on one of the grounds, the matter was carried in appeal by the unsuccessful tenants. It is true that the Appellate authority had reversed the same recording certain reasons. In such circumstances, when the whole lis is ceased by the Appellate authority, normally the whole evidence available on record and the grounds raised before the learned Rent Controller to be considered and decided. It is true that the Appellate authority had reversed the same recording certain reasons. In such circumstances, when the whole lis is ceased by the Appellate authority, normally the whole evidence available on record and the grounds raised before the learned Rent Controller to be considered and decided. It is no doubt true that in certain matters, the parties would be leaving certain grounds or waiving certain grounds and findings relating to the same as given up, waived etc. , would also be recorded. But, here is a case, where nothing had been recorded by the appellate Authority in this regard. It is not clear from the reasons recorded by the appellate Authority whether the parties had urged this aspect and whether the same had been given up or not. ( 12 ) IN the light of the fact that specific ground had been raised before the revisional Court, this Court is of the considered opinion that in the absence of any indication in the order of the Appellate authority, it cannot be "said that the landlords had given up the aforesaid ground. Apart from this aspect of the matter, the non-production of ledger extract and the other aspects also had been recorded. Some explanation is being given by the respondents. Taking over all facts and circumstances into consideration and also on careful scrutiny of the impugned order and the way in which the matter had been disposed of by the Appellate Authority, this Court is satisfied that this is a fit matter which may have to be remanded to the Appellate Authority and accordingly the impugned order is hereby set aside and the matter is remitted to the Appellate authority to give opportunity to both the parties to urge all the grounds, and pass appropriate orders in this regard. ( 13 ) ACCORDINGLY, civil revision petition is hereby allowed to the extent indicated above. No order as to costs.