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2005 DIGILAW 700 (AP)

Atufa Travels v. Gangabai

2005-08-01

P.S.NARAYANA

body2005
ORDER The unsuccessful tenant in both the Courts below had preferred the C.R.P. under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, here-in-after, referred to as the Act for the purpose of convenience). Respondent herein (here-in-after referred as landlady) filed R.C. No.599/97 on the file of II Additional Rent Controller, Hyderabad, for eviction on the ground of wilful default and also on the ground that the tenant ceased to occupy the schedule premises. On the ground of ceasing to occupy the schedule premises or securing alternative accommodation, the learned Rent Controller negatived the same, but however, on the ground of wilful default, eviction was ordered. Aggrieved by the same, the tenant preferred RANo.278/99 on the file of the Chief Judge, City Small Causes Court, Hyderabad, which was confirmed and aggrieved by the same, the present C.R.P. is preferred. 2. Sri Vilas V. Afzulpurkar, the learned Counsel representing the tenant had taken this court through the evidence of P. WS.1 and 2 and also RW.1, and EX.P-1 and also Exs.R-1 to R-9 and the findings recorded by the learned Rent Controller and also the Appellate Authority and would contend that in the facts and circumstances of the case, the plea that the tenant committed default for the relevant period, when no default was committed on any other period, whatsoever, definitely cannot be believed. The learned Counsel also pointed out that the Appellate Authority having observed that the findings of the Rent Controller are erroneous should not have dismissed the appeal. The learned Counsel pointed out to the relevant portions of the order impugned in the present C.R.P. 3. On the contrary, Sri Raghuveera Reddy, the learned Counsel representing the landlady would contend that the period of default of 10 months is clear and categorical and the tenant committed wilful default in payment of rents for the said period and concurrent findings had been recorded by the learned Rent Controller and also the Appellate Authority and hence, the C.R.P. is liable to be dismissed despite the fact that an observation was made by the Appellate Authority that the findings of the Rent Controller are erroneous. 4. Heard the Counsel on record. 5. 4. Heard the Counsel on record. 5. The landlady had pleaded that she is the absolute owner of the mulgi bearing municipal NoA-7-1121/7, Putlibowli, Hyderabad and in the year 1956 she had let-out the schedule premises to late Atufa Bin Abdullah on a monthly rent of Rs.30/- and the rent was enhanced from time to time and in the year 1986 the said Atufa Bin Abdullah died and subsequent to his death, his son Hussain Bin Abdullah became the tenant and commenced the business under the name and style of M/s. Atufa Travels. It was further pleaded that the landlady and her family members own several mulgies and they had appointed one person to collect the rents and the landlady used to send her agent with the rental receipt book for collection of rent every month from the tenant in question and also other tenants as well. It was further pleaded that in spite of several demands, the tenant did not pay rents and committed default on several occasions and the present rent is Rs.6501- per month and the tenant committed default for the period of November, 1996 till August, 1997, for a period of 10 months amounting to Rs. 6,5001- and yet another ground of alternative accommodation also had been pleaded. 6. A counter was filed opposing the eviction petition. The jural relationship is admitted and the rent collector coming and collecting the rents is also admitted. Specific stand was taken that he never fell in arrears of rent nor committed any default. It was further pleaded that the landlady deliberately had not passed rent receipts to create a ground of default and the quantum of rent as Rs.6501- was admitted, but the period of default from November, 1996 to August, 1997 had been specifically denied. It was also pleaded that even after filing of the case, he offered the amount to the husband of the landlady which is evident even from the docket proceedings, but he was not willing to receive the same. 7. The husband of the landlady was examined as P.W.1 and the Rent Collector was examined as P. Vv .2. EX.P-1 was marked. The employee of the tenant was examined as RW.1 and Exs. R-1 to R-9 were marked. There is no serious dispute about the quantum of rent and also the payments made. 7. The husband of the landlady was examined as P.W.1 and the Rent Collector was examined as P. Vv .2. EX.P-1 was marked. The employee of the tenant was examined as RW.1 and Exs. R-1 to R-9 were marked. There is no serious dispute about the quantum of rent and also the payments made. The burden lies on the tenant to establish that he paid the rents from November, 1996 to August, 1997. EX.R-1 is the GPA; EX.R-2 is the cash book for the year 1996-97; EX.R-3 is the Ledger book for the year 1996-97; EX.R-4 is the Cash book for the year 1997-98; EX.R-5 is the Ledger for the year 1997-98; EX.R-6 is LT. Acknowledgment; EX.R-7 is LT. Returns; EX.R-8 is LT. Returns; and EX.R-9 is LT. Returns. A finding had been recorded that for the relevant period, there are no receipts. RW.1 also deposed that they had tendered the rent again for the period of default and the landlady received the same under protest. All the circumstances put together had been taken into consideration while appreciating the evidence of P.W.1, p.w.2and EX.P-1 and R.W.1 and Exs.R-1 to R-9 and concurrent findings had been recorded by both the Courts. The Appellate Authority at para 6 recorded reasons as hereunder:- "It may be a fact that till filing of the R.C., there was no exchange of legal notices between the parties and the petitioner has not demanded the rent through the legal notices for the alleged default period. But, the alleged default period is not one month or two months, but it was for 10 months continuously. It can be believed if it is said that the husband of the petitioner represented about non availability of the receipts book once or twice, but, it becomes doubtful and unbelievable, if it is pleaded that the husband repeated the same answer every time of 10 months. In fact, any prudent person is bound to smell foul in such representations, if made and would have resorted for the legal notices demanding the receipts for the payments of rent. The contention of mere reposing the confidence would not automatically drive to hold that the respondent discharged the burden in my view. It is an admitted fact that RW.1 maintained the cash books and ledgers. The contention of mere reposing the confidence would not automatically drive to hold that the respondent discharged the burden in my view. It is an admitted fact that RW.1 maintained the cash books and ledgers. The possibility of incorporating the payments of house rents in the cash books and ledgers although they are not paid only for the purpose of gaining the benefit of income tax cannot be ruled out. Hence, the fact that the cash books and ledgers reflect the payments cannot be treated as conclusive proof for payments. Therefore, the income tax statements prepared on the basis of EX.P-2 to P-5 automatically would not go to the rescue of the respondent in my humble view. This view of mine finds support from the evidence of R.W.1 who said that "it is true that we have tendered the rent again for the default period and the petitioner received the rents under protest. "There is no doubt that the above version of the R.W.1 carries binding force upon the respondent. When once according to the respondent, the rents for the alleged period have already been paid, it is not explained what necessitated the respondent to tender the rents again for the alleged default period. This very admission of R. W.1 drives me to negative the contention of the respondent. Besides, it is admitted by the respondent that in the schedule building belonging to the petitioner, there are other tenants and that P.W.1 was appointed for the collection of the rents and that he was collecting the rents from all the tenants. Then, if at all the version of the respondent that P.W.1 did not turn up for collection of the rents is to be believed, it should be the same case with the other tenants also. But it is nobodys case that any of the other tenants fell in arrears due to non-appearance of P. W.1. In fact, the petitioner has not filed any eviction petitions against any of the other tenants and this circumstance exposes the hollowness in the contention of the respondent. Therefore, irrespective of the findings of the lower court being erroneous. I have to note that the findings of the learned Rent Controller do not call for interference by me." 8. In fact, the petitioner has not filed any eviction petitions against any of the other tenants and this circumstance exposes the hollowness in the contention of the respondent. Therefore, irrespective of the findings of the lower court being erroneous. I have to note that the findings of the learned Rent Controller do not call for interference by me." 8. It is, no doubt, true that an observation was made that the findings recorded by the learned Rent Controller are erroneous, but however, the default committed during the period of 10 months was held to be wilful default even by the Appellate Court. Hence, in the considered opinion of this Court, in the light of the concurrent findings recorded, this observation may not alter the situation. Inasmuch as, both the Courts arrived at a conclusion that for the period of 10 months wilful default had been committed, this Court is of the considered opinion that the said findings need not be disturbed and accordingly, the said findings are hereby confirmed. The C.R.P. is hereby dismissed as being of devoid of merit without costs. The tenant is granted three (3) months time to vacate the premises.