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Andhra High Court · body

2005 DIGILAW 938 (AP)

Sajan Kumar v. D. N. Dhumale

2005-10-06

P.S.NARAYANA

body2005
( 1 ) THE 1st revision petitioner, here-in-after referred to as tenant and the other revision petitioners - R-2 to R-4 in R. C. No. 176/95 on the file of III Additional Rent Controller, hyderabad, styled as sub-tenants. Aggrieved by the order of eviction made in the aforesaid r. C. as confirmed in R. A. No. 125/99 on the file of Addl. Chief Judge, City Small Causes court, Hyderabad, had preferred the present c. R. P. undersection 22 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (in short here-in-after referred to as Act for the purpose of convenience ). ( 2 ) RESPONDENT in the C. R. P. Dr. D. N. Dhumale (here-in-after referred to as landlord) filed R. C. No. 176/95 aforesaid on the grounds of wilful default, sub-letting and acts of waste. The learned Rent Controller recorded the evidence of Dr. D. N. Dhumale as P. W. 1 and Sajjan Kumar as R. W. 1, marked ex. P-1 to Ex. P-5 and Ex. R-1 to Ex. R-10 and ordered eviction specifically answering and recording findings relating to the ground of sub-letting, specifically negativing the ground of acts of waste and not clearly recording any finding relating to wilful default except observing non-payment of electricity and water bills. The matter was carried by way of appeal R. A. No. 125/99 aforesaid wherein the appellate Authority framed the points for consideration and recorded specific finding relating to the ground of wilful default and also the ground of sub-letting but however negativing the relief on the ground of acts of waste confirming the finding recorded by the learned Rent Controller in this regard. Aggrieved by the same the present C. R. P. is preferred. ( 3 ) SUBMISSIONS of Sri Ashok Kumar:- sri Ashok Kumar, the learned Counsel representing the revision petitioners would contend that the alleged default is for a period of 3 months and no finding had been recorded in this regard by the learned Rent controller and hence it cannot be said that concurrent findings had been recorded in this regard by both the Courts below as far as the ground of wilful default is concerned. The learned Counsel also would submit that the conduct of the landlord also may have to be taken into consideration while deciding the ground of wilful default and the conduct would clearly reflect that just to make it a ground for eviction, the landlord intentionally evaded the receipt of rent. Hence, the same cannot be styled as wilful. The learned Counsel also would contend that the ingredients necessary to establish the ground of subletting had not been satisfied. The burden is on the landlord to establish sub-letting. Except the evidence of P. W. 1, there is no other evidence available on record. The learned Counsel also would submit that revision petitioners 2 and 3 are the close relatives of the 1st petitioner and the revision petitioner No. 4 is a worker and in the light of the specific stand taken by the tenant, it cannot be said that the ground of sub-letting had been established by the landlord. The learned Counsel placed reliance on certain decisions in this regard. ( 4 ) SUBMISSIONS of Sri Bhasker Reddy:-Sri Bhasker Reddy, the learned Counsel representing the respondent-landlord in all fairness would submit that the learned Rent controller had not recorded specific finding relating to the ground of wilful default except referring the non-payment of electricity and water charges. The learned Counsel would contend that even otherwise the Appellate authority recorded clear findings in relation to the ground of wilful default and hence the same need not be disturbed by this Revisional court. The learned Counsel also pointed out that the evidence available on record is contra to the pleading in relation to the relationship between the tenant and the sub-tenants. The learned Counsel also would submit that in view of the stand taken by the tenant inasmuch as the ground of sub-letting had been prima facie established the burden would lie on the tenant to explain how the possession of the other revision petitioners - petitioners 2 to 4 would not amount to sub-letting. The learned counsel made elaborate submissions on the aspect of the purpose for which the building was let-out and the test of dominant purpose would be adopted, the meaning of rent and also the nature of evidence which had been let-in and the adverse inference to be drawn in the facts and circumstances of the case. The learned Counsel placed reliance on several decisions. The learned Counsel placed reliance on several decisions. ( 5 ) HEARD both the Counsel on record. Perused the oral and documentary evidence and the findings recorded by the learned rent Controller and also the Appellate authority. ( 6 ) THE landlord as petitioner in the R. C. aforesaid in nutshell pleaded as hereunder:-"the petitioner is the landlord of the entire property bearing Municipal no. 3-2-1/5 to 13 situated at Rehmatbag, hyderabad. The petitoner has let-out the above said building to various tenants for residential purpose. The first respondent is a tenant in a suit premises bearing Municipal No. 3-2-1/7 and 3-2-1/8 consisting of two rooms situated at Rahmatbagh, Kachiguda, hyderabad. The above said suit property bearing No. 3-2-1/5 to 1/11. The monthly rent for the above said portion is rs. 400/- which is exclusive of electricity and water charges. The tenancy is oral and month to month according to English calender month and every month the respondent has to pay advance rent in respect of the suit property to the petitioner-landlord. The respondent is a tenant in the suit premises since last 10 years in the above said suit property 3-2-1/7 and 3-2-1/8. Further the petitioner states that from the incept of the date-of the tenancy, the respondent who is highly irregular in payment of rents and not paid the rents to the petitioner. But as per the oral agreement every month, the respondent has to pay the rent in advance on or before 10th of every English Calendar month and the respondent has to pay the separate electricity and water charges to the petitioner. The respondent has agreed to pay electricity charges Rs. 80/- per month for two rooms i. e. , suit property and Rs. 40/- per month as water charges. The respondent has paid the rents up to december, 1994 for the suit premises and he is due rents from January, 1995 to March, 1995 i. e. , 3 months rent as per the oral agreement, every month he has to pay the rent in respect of the suit premises in advance. Thus, he is due rs. 1,2007- i. e. , 3 months due in respect of the suit premises (rent for January, 1995, February, 1995 and March, 1995 ). Thus, he is due rs. 1,2007- i. e. , 3 months due in respect of the suit premises (rent for January, 1995, February, 1995 and March, 1995 ). Apart from this, the respondent No. 1 has to pay the Electricity charges and water charges in respect of the suit premises from January, 1993 to March, 1995. The respondent fell due in all rs. 4,400/-and thereby committed wilful default. Further, the petitioner states that the first respondent has subletted the suit premises to respondents 2 to 4 on a monthly rent of Rs. 1,000/- and illegally collecting the rents from them so the petitioner on coming to know of said fact asked the first respondent to handover the vacant possession. It is also the case of the petitioner that first respondent after subletting the premises started living in plot No. 10, Block No. 7, hig, Baghlingampally, Hyderabad and in the meanwhile the first respondent removed the kitchen platform shabad stones and window pans and caused damage to the said property. Hence, the petition. ( 7 ) THE tenant as R-1 filed counter which was adopted by R-2 to R-4. lt was pleaded by the tenant that though there is jurat relationship of landlord and tenant between the parties, it was specifically denied that the suit premises was occupied for residential purpose only. It was also pleaded that it is true that the 1st respondent is the tenant in the petition schedule premises bearing Municipal door No. 3-2-1/7 and 3-2-1/8 consisting of two rooms situated at Rahmatbagh, kachiguda, Hyderabad, on a monthly rent of rs. 75/- since 1976 vide Rent receipt No. 79, dt. 1-8-76 on a monthly rent of Rs. 75/- per month exclusive of electricity and water charges. The rent is being enhanced from time to time and ultimately it is enhanced to rs. 400/- per month in the month of January, 1994. It is true that the tenancy is oral and month to month according to English Calendar month. It is not true that every month the respondent No. 1 has to pay rent in advance in respect of the petition premises to the petitioner - landlord. It is denied that every month the respondent has to pay rent in advance and that respondent is due rent from January, 1995 to March, 1995, amounting to Rs. It is not true that every month the respondent No. 1 has to pay rent in advance in respect of the petition premises to the petitioner - landlord. It is denied that every month the respondent has to pay rent in advance and that respondent is due rent from January, 1995 to March, 1995, amounting to Rs. 7,2007- and that when the rent for the month of January, 1995 offered to the petitioner the later informed that he would receive it after he had a talk with first respondent but thereafter in February, 1995 petitioner refused to accept the two months rent for January and February, 1995 demanding enhancement of rent from rs. 100/- to Rs. 5, 00/- to which first respondent agreed to enhance Rs. 25/- per month as the rents was enhanced from Rs. 356/- to rs. 400/-in January, 1994. It is stated that the when petitioner demanded the first respondent to vacate the premises, first respondent sent a sum of Rs. 800/- towards rent for January and February 1995 on 2-2-1995 which was refused by the petitioner, that therefore, the alleged default of rent from january, 1995 to March, 1995 for there months is false. It is stated that the first respondent did not committed any default wilful and that he has paid Rs. 7350/- towards electricity charges and Rs. 540/- towards water charges as such petitioner is not justified in claiming the arrears of electricity and water charges. It is stated that the first respondent and his family members including respondents 2 to 4 left their native place at ikas in Haryana State in the month of April, 1995 and on his return a sum of Rs. 7660/- being the rent forjanuary 1995to April, 1995 was sent by money order on 22-4-95 and also rendered sum of Rs. 1,600/- to r. Srinivas, Counsel at the rate of Rs. 400/- from January, 1995toapril, 1995 as abundant caution. It is stated that petitioner has received the said money order amount and got issued latter dt. 7-6-1995 through his Counsel stating referred to the money order sent by our client mr. Sajjan Kumar amounting to Rs. 1,600/- representing the rent for the months of january to April, 1995. As such there is double payment of rent from January to April, 1995 which was already collected by their advocate on 28th April, 1995. 7-6-1995 through his Counsel stating referred to the money order sent by our client mr. Sajjan Kumar amounting to Rs. 1,600/- representing the rent for the months of january to April, 1995. As such there is double payment of rent from January to April, 1995 which was already collected by their advocate on 28th April, 1995. As such there is double payment of rent from January to april, 1995 which he requested the petitioner to adjust towards rent from May to August, 1995 at the rate of Rs. 400/- per month. Further the respondent states that the petitioner despite collecting the electricity and water charges did not make the payment to the said departments as a result, the electricity supply was disconnected by the apseb to all the tenants including the respondent. Then Dr. P. M. Narayana one of the tenants including the respondent. Then dr. P. M. Narayana one of the tenants paid rs. 1, 922-90 plaint schedule. , on 25-3-90 and got restored the electricity supply. It is stated that the first respondent is ready and willing to pay the water charged towards his share of the water bill issued to the transaction if the landlord passes a receipt and pays the same to the water works department. It is stated that the 2nd respondent is the cousin and a partner of the first respondent while respondents 3 and 4 are the workers of the first respondent so the question of subletting the premises to respondent s 2 to 4 does not arise. It is denied that the petitioner asked the first respondent to handover vacant possession of the suit premises as he had sublet the premises. It is stated for want of suitable accommodation for his three children, younger brother and his wife, first respondent is living separately at Flat No. 1, Block-7hig, baghlingampally. It is denied that the respondent damaged the suit premises by removing the kitchen platform and window panes on the other hand when the petitioner failed to undertake repairs as required first respondent replaced the shabad stones with new stones and got cement plastered by spending Rs. 3,000/- to which petitioner did not pay single pie. Hence, the respondent prayed this Court to dismiss the eviction petitiorf . ( 8 ) THE landlord examined himself as P. W. 1 and the tenant examined himself as R. W. 1. Ex. 3,000/- to which petitioner did not pay single pie. Hence, the respondent prayed this Court to dismiss the eviction petitiorf . ( 8 ) THE landlord examined himself as P. W. 1 and the tenant examined himself as R. W. 1. Ex. P-1-the rental receipt book; Ex. P-2-rough sketch plan; Ex. P-3 and Ex. P-4 - M. O. coupons and Ex. P-5 to Ex. P-26 - Counter folio rent receipts and Ex. R-1 - rent receipt; ex. R-2 and Ex. R-3 - M. O. coupons; Ex. R-4 - M. O. Acknowledgment; Ex. R-5 to R-7 - m. O. receipts; Ex. R-8 - Receipt, dt. 28-4-95; and Ex. R-9 and R-10 - Rent Receipts were marked. ( 9 ) THE Appellate Authority while recording finding in relation to Point No-1 wilful default came to the conclusion that the tenant failed to establish that he had paid rents from january, 1995 to March, 1995 and hence the tenant is irregular in payment of rents. As already referred to supra, the learned Rent controller had not recorded any finding, what- so-ever, except referring to the non-payment of electricity and water bills. In Karani properties Ltd. v. Miss Augustine while dealing with the provisions of the West Bengal premises Rent Control (Temporary provisions) Act (17 of 1950) the Apex Court held at para 5 as hereunder:-"it is admitted at the Bar that the tenancies in question are regulated by the terms and conditions appearing in exhibit Objection, the most important of which is cl. (1) in the following terms:-"that the tenant shall occupy the said flat paying therefore unto the bank a monthly rent of Rs. 100/- including hire of 2 A. C. fans and extra Government duty on electric current without any reduction or abatement to be paid at the Bank on or before the 7th of succeeding month for which the rent is due and that the said rent is inclusive of charges for current for fans, lights, radio and electric stove not exceeding 600 watts for heating meals and making tea only, use of lift, hot and cold water, the owner and occupier s shares of Municipal Taxes". It is clear from the terms of the clause quote above that the landlord was to place at the disposal of the tenants not only electric installation including fans but also electric cu rrent to be consumed in the use of those installations, etc. , besides radio and electric stove. It was urged that the tenancy comprised not only buildings and structures and permanent fixtures but also the supply of electric power without any fresh charge for the same. It was also pointed out that S. 9 dealing with fixation of standard rent did not in terms contemplate the enhancement or reduction of rent according as the rates for electric current and Government duty thereon were enhanced or reduced. It is true that none of the els. (a) to (relief) of s. 9 has any reference to these consideration. Clause (b) makes a specific reference only to increase in municipal taxes, rates or cesses. But then there is the residuary Cl. (g) and the question whether that clause applies to the present cases will have to be discussed separately when the second point in controversy will be taken up for consideration. It is enough to point out at this stage that the legislature was conscious that contingencies may arise which would not be covered by any of the specific cls. (a) to (relief) of S. 9 which is the operative Section in the Act relating to fixation of standard rent, Under this head the question reduced itself to this: whether if by a stipulation between the landlord and the tenant the landlord agrees to provide for additional amenities like electric power for consumption and such other facilities, the case is taken out of the operation of the Act. The Act is intended "to make better provision for the control of rents of premises". It has defined "premises in very wide terms, as pointed out above. Hence, it is difficult, if not impossible, to accept the contention that the legislature intended the provisions of the Act to have a limited application depending upon the terms which an astute landlord may be able to impose upon his tenants. In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute. In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute. Having those considerations in view, we do not think that the supply of the amenities aforesaid would make any difference to the application of the Act to the premises in question. In this connection reference maybe made to the decision of the Court of Appeal in the case of Property Holding Co. Ltd. v. Clark 1948-1 KB 630 (B) and that of alliance Property Co. Ltd. v. Shaffer 1948-2 KB 464 (C) which followed the earlier decision to the effect that it relief stipulations between landlord and tenant include payment of rent for not only what may properly be characterized as premises within the ordinary acceptation of the term but also payment in respect of lighting, cooking equipment, the furnishing and cleaning of hall and staircase and certain other similar amenities, the sum total of the payments in respect of the building or part of the building or part of the building and other services and amenities constitute rent. In the earlier case of Property Holding co. Ltd. v. Clark (B) (supra) the facts, shortly stated, were that the agreement between the landlord and the tenant in writing provided for the payment of $110 a year as rent and an additional payment of $30 a year in respect of the additional amenities and conveniences like lighting and cooking equipments, furnishing and cleaning of hall and staircase, etc. in an action for rent by the landlord at the rate of $140 a year the tenant contended that the rent proper written statement only $110 and not the total sum of $140 a year payable on all counts, as aforesaid. The Court of Appeal allowed the landlord s appeal and held that the standard rent was $140 and not only $110. In the course of his judgment asquith L. J. adopted the language of younger L. J. in the case of Wilkes v. Goodwin 1923-2 KB 86 at p. 105 (Defendant) to the following effect:-"the effect of these (considerations) is that the word rent in this exception surely means not rent in the strict sense but the total payment under the instrument of letting. The exception assumes that rent so called may include, for example, board , payment of which is not rent. The exception assumes that rent so called may include, for example, board , payment of which is not rent. I am here paraphrasing the statement of Shearman J. in Nye v. Davis 1922-2 KB 56 (E) with which I agree". Their Lordships of the Court of Appeal repelled the contention that the additional payment was not part of rent that the payment in respect of the additional amenities aforesaid was also part of rent within the meaning of the english Act which corresponds to the bengal Act. Those English decisions are authorities for the proposition that rent included not only what is ordinarily described as rent in an agreement between a landlord and a tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and his tenant. The term rent has not been defined in the Act. Hence, it must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term rent is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term "rent" is within the purview of the Act and the rent Controller and other authorities had the power to control the same. In view of these considerations we overrule the first contention raised on behalf of the appellant. The relevant portions of the evidence of p. W. 1 in this regard had been specifically pointed out and submissions at length were made that in view of the conduct of the landlord it may have to be inferred that to make this a ground for eviction, intentionally the receipt of rent had been evaded and the tenant in fact acted promptly. Be that as it may, suffice to state that merely because a vague observation was made by the learned rent Controller relating to the non-payment of electricity bills and water bills, it cannot be said thatthejearned Rent controller recorded any finding in relation to wilful default. It is needless to say that every default cannot be styled as wilful default. Be that as it may, suffice to state that merely because a vague observation was made by the learned rent Controller relating to the non-payment of electricity bills and water bills, it cannot be said thatthejearned Rent controller recorded any finding in relation to wilful default. It is needless to say that every default cannot be styled as wilful default. Hence, this finding relating to the wilful default recorded by the appellate Authority cannot be said to be a concurrent finding. On the aspect of sub- letting, the variation between the pleading and proof had been pointed out and lengthy arguments were advanced by both the counsel. In Dr. Syed Hbeebuddin (Landlord) v. Mohammed Fareed Khan and another, it was held as hereunder:-"now coming to the next question i. e. , whether the ground of sub-letting of the premises by tenant to the 2nd respondent is established, the evidence available on record is vague and it is not clear. Further, it is a case of the tenant leaving the country requesting his brother to look after his business during his absence. In Resham Singh v. Raghbir singh and another (1999 (6) ALT 13 (S. C.), it was held by the Apex Court that it is settled position of law that to establish sub-letting the onus is on the landlord to prove through evidence that the other tenant was in exclusive possession of the property in question and that between the sub-tenant and the tenant was relationship of lessee and lessor and that the possession of the premises in question was parted with exclusively by the tenant in favour of the sub-tenant. In fact, the Apex court after appreciating the facts in the said case had observed that the presence of the tenant s brother in the premises during his absence in the circumstances of the case i. e. , the tenant absconding as he was involved in a criminal case, will not amount to sub- letting of the premises to him. The expression "sub-lease" would mean an assignment of right of tenancy by the tenant or lessee in favour of a person other than the landlord. It is no doubt true that this expression "sub-lease" is not defined even in the Transfer of property Act, 1882. The expression "sub-lease" would mean an assignment of right of tenancy by the tenant or lessee in favour of a person other than the landlord. It is no doubt true that this expression "sub-lease" is not defined even in the Transfer of property Act, 1882. In Mineral development Limited v. Union of India ( AIR 1960 SC 1373 ) the Apex Court while dealing with the aspect of sub- lease in the context of a mining lease observed: the terms sub-lease , under-lease and derivative lease are used conveniently to indicate not only that the transfer is a lease but also the transfer is a owner of the property but is a lessee; but the transfer is between a lessee and a sub-lessee is nonetheless a lease provided it satisfies the definition of Section 105. We may add that Chapter V of the transfer of Property Act, which deals with leases of immovable property has nowhere made any distinction between a lease and a sub-lease and all the provisions of that Chapter which apply to a ease also apply to a sub-lease. "hence, a sub-lease or a transfer of a lease forthe purpose of Sec. 10 (2) (ii) (a) of the Act also must satisfy the conditions of the lease within the meaning of section 105 of the Transfer of Property/ act and at any stretch of imagination in the present case, on fact, it cannot be said to be sub-letting. Here is a case where the tenant while leaving the country had requested his brother to look after the business and taking advantage of the circumstances, the landlord intended to create problems. In fact, the Appellate Authority had discussed all the aspects in all angles clearly and hence the findings recorded by the appellate authority on these factual aspects do not deserve any interference while exercising revisional jurisdiction under Section 22 of the Act. Strong reliance was placed on the under- noted decisions:-Kaligotla Suryanarayana Murthy and others v. P. V. Ramanaiatf; Dr. Mrs. Chacko v. Yeditha Seshamma; Smt. Provabati Das and others v. R. R. Joneja; Joginder Singh sodhi v. Amarkaui; Ram Saran v. Pyare Lai and another; Hiralal Kapur v. Prabhu choudhury; Bhairab Chandra Nandan v. Ranadhir Chandra Duffa; Mohd. Yunus v. Gurubux Singh; and M/s. Precision Steel and engg. Works and another v. Premdevaniranjan deva Taya. Mrs. Chacko v. Yeditha Seshamma; Smt. Provabati Das and others v. R. R. Joneja; Joginder Singh sodhi v. Amarkaui; Ram Saran v. Pyare Lai and another; Hiralal Kapur v. Prabhu choudhury; Bhairab Chandra Nandan v. Ranadhir Chandra Duffa; Mohd. Yunus v. Gurubux Singh; and M/s. Precision Steel and engg. Works and another v. Premdevaniranjan deva Taya. ( 10 ) THE learned Counsel for revision petitioners also placed strong reliance on the decision in Veera Swamy v. Dr. D. N. Domale. However, it was brought to the notice of this Court that the same is pending at present before the Apex Court. It is no doubt true that in view of the relationship between the tenant and certain of the alleged sub-tenants, the tenant could have chosen to examine them to explain his stand. However for reasons best known evidently being under the impression that the burden is on the landlord to establish the ground, no such attempt was made on the part of the 1st revision petitioner-tenant. The evidence of p. W. 1 also is not so clear and this Court is of the considered opinion that the said evidence of P. W. 1 alone would be insufficient to establish the ground of sub-letting. Though, concurrent finding had been recorded in relation to the ground of sub-letting, in view of the peculiar facts and circumstances, this court is of the considered opinion that inasmuch as concurrent finding had been recorded only in relation to this ground and the evidence available on record, is not sufficient to satisfy the ingredients of the ground of sub-letting and also taking into consideration that no finding had been recorded by the learned Rent Controller in relation to the ground of wilful default, this court is of the considered opinion that the impugned Order is to be set aside and the matter to be remanded to the original Authority -the learned Rent Controller, so as to afford opportunity to both the parties to let-in further evidence and decide the matter afresh. Accordingly, the matter is remitted to the original Authority - the learned Rent controller, to afford opportunity to both the parties to let in further evidence and dispose of the matter in accordance with law within three months from the date of receipt of this order. C. R. P. is accordingly allowed to the extent indicated above. No order as to costs.