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Andhra High Court · body

2006 DIGILAW 319 (AP)

DUMA VENKATA RAO v. MOOTHA RAMAKOTI

2006-03-07

P.S.NARAYANA

body2006
( 1 ) CRP No. 6850 of 2003 is filed by the petitioner-tenant in r. C. C. No. 64 of 1983 on the file of the rent Controller-cum-Principal District Munsif, kakinada as against the order made in r. C. A. No. 9 of 1995 on the file of the rent Control Appellate Authority-cum-Principal senior Civil Judge, Kakinada reversing the order made in the aforesaid r. C. C. The respondent-landlord in R. C. C. No. 64 of 1983 is the respondent in the present C. R. P. The said R. C. C. was filed under Section 8 (3) of A. P. Buildings (Lease, rent and Eviction) Control Act, 1960 (hereinafter in short referred to as the act for the purpose of convenience) praying permission of the Court to deposit rents. The learned Rent Controller allowed the said R. C. C. and the same was reversed by the appellate authority. R. C. C. No. 33 of 1984 on the file of the Rent Controller-cum-Principal district Munsiff, Kakinada filed by the respondent-landlord herein for eviction on certain grounds was dismissed by the learned Rent Controller and the same was reversed by the Appellate Authority-cum-Principal senior Civil Judge, Kakinada in R. C. A. No. 8 of 1995. Aggrieved by the same, the tenant respondent in R. C. C. No. 33 of 1984 had preferred the present C. R. P. No. 6851 of 2003 under Section 22 of the Act. For the purpose of convenience and to avoid confusion hereinafter the parties would be referred to as landlord and tenant. ( 2 ) CONTENTIONS of Sri Subba Reddy sri Subba Reddy, the learned Counsel representing the revision petitioner-tenant in these matters made the following submissions. ( 3 ) THE learned Counsel had taken this court through the evidence available on record and the findings recorded by the learned Rent Controller and also the appellate authority. The Counsel also pointed out to the pleadings of the parties and would comment that in the pleadings specific stand relating to wilful default or the particulars of the months had not been clearly spelt out. Even relating to bonafide personal requirement, the learned Counsel would maintain that in the eviction petition it was pleaded that the landlord is not having any other premises but while deposing as pw. Even relating to bonafide personal requirement, the learned Counsel would maintain that in the eviction petition it was pleaded that the landlord is not having any other premises but while deposing as pw. 1, he admitted about his ownership in relation to other premises as well and hence the landlord is coming up with a false version. On the aspect of the ground of reconstruction or acts of nuisance, the learned Counsel would maintain that absolutely no acceptable evidence is available and hence these grounds are to be negatived forthwith. The learned Counsel also had pointed out to the admission said to have been made by PW. l in relation to the refusal of receipt of rent for the month of July. The Counsel had taken this Court through the relevant portion of evidence of PW. l in this regard. While further making his submissions inasmuch as by the date of filing of the eviction petition R. C. C. No. 33 of 1984 since the tenant was not in any arrears whatsoever the ground of wilful default is not available to the landlord in the light of the view expressed by the decision of the Full Bench in Vinukonda Venkata ramana v. Mootha Venkateshwar Rao, 2001 (6) ALD 27 (FB) = AIR 2002 AP 52 , following the view in Dakaya alias dakaiah v. Anjani, AIR 1996 SC 383 = 1996 (1) ALD (SCSN) 21. The learned counsel also while further elaborating the submissions had pointed out that the receipts produced were disbelieved by the appellate authority on the ground that there are absolutely no postal endorsements and hence these cannot be said to be authenticated documents. This approach of the appellate authority definitely cannot be sustained. The Counsel also would maintain that the ground taken that the premises is required for bona fide personal requirement also cannot be sustained for the reason that virtually what had been deposed by pw. l is in fact for expansion of the business which would amount to additional accommodation. The Counsel also would maintain that the ingredients to be satisfied to establish the ground of additional accommodation would stand on a different footing. The learned Counsel also placed strong reliance in Kollipara Venkat Rao v. Moturi Lakshmi Sulochana, 2002 (1) LD 590 = 2002 (2) An. The Counsel also would maintain that the ingredients to be satisfied to establish the ground of additional accommodation would stand on a different footing. The learned Counsel also placed strong reliance in Kollipara Venkat Rao v. Moturi Lakshmi Sulochana, 2002 (1) LD 590 = 2002 (2) An. WR 6, Hari Prasad badruka v, Tellukunta Laxmi, 2000 (1)ALT 551 and Fakruddin Ali Tarwala v. Ved Prakash Mishra, 2002 (6) ALT 421 . The Counsel also made certain submissions in relation to the findings recorded by the appellate authority on the ground of wilful default and would comment that unless the procedure under Section 11 of the Act is followed, it cannot be said that the tenant had committed wilful default and hence in that view of the matter especially taking conduct of the parties into consideration that the tenant filed R. C. C. No. 64 of 1983 praying for permission to deposit the rents and also in the light of the vague stand taken by the landlord eviction cannot be ordered on any one of the grounds. On the aspect of the suosequent events, the learned counsel would comment that there is no acceptable evidence available on record and the way in which the ledger in R. C. C. No. 64 of 1983 was considered also is not in accordance with law. ( 4 ) CONTENTIONS of Sri Rammohan reddy : Sri Rammohan Reddy, the learned counsel representing respondent-landlord would maintain that in the light of the admissions made by RW. 1-the tenant, it is clear that in the hall of residential premises temporarily the landlord has been transacting the business and it is not the case of the tenant that the landlord has been carrying on this business in a non-residential premises and for the purpose of additional accommodation, the premises is being required. The learned Counsel would comment that the fact remains that the landlord bona fide requires the premises for the purpose of commencement of business and out of dire necessity temporarily he has been running the same in the hall of residential portion. Hence, this would not fall under additional accommodation but the ground of bona fide personal requirement alone would be attracted. The learned counsel also would comment in relation to exs. Hence, this would not fall under additional accommodation but the ground of bona fide personal requirement alone would be attracted. The learned counsel also would comment in relation to exs. B. 5 to B. 9 that there is no seal of the postal authorities and the appellate authority came to the correct conclusion m recording proper findings in relation thereto. While commenting about the evidence of PW. 1 the learned Counsel also would point out that the way in which findings had been recorded would go to show that the word not should have been omitted as bona fide mistake but however, in all fairness the counsel would maintain that even if it is taken as admission it will not seriously cause prejudice to the case of the landlord, since the alleged admission is in relation to the month of July. The Counsel also while elaborating the submissions had pointed out to the conduct of the parties and the subsequent events which can be taken into consideration. The Counsel would maintain that at Para 20, the appellate authority recorded the reasons in detail and the conduct had been taken into consideration and the non following the procedure contemplated by the Act and Rules had been taken note of and ultimately the appellate authority arrived at the conclusion that the ground of wilful default had been established. The learned Counsel placed strong reliance in Akkala Durga Rao v. Manikonda Durga Anjaneyulu, 2005 (5)ALT 509 = 2005 (6) ALD (NOC) 216, polisetty Venkateswarlu v. Atmakuri mallikarjuna Rao, 2005 (5) ALD 129 = 2005 (4) ALT 449 , Textila Trading syndicate v. G. Lakshminarayana, 2002 (1) ALD 566 , R. K. Agarwal v. S. Meenakshi, 2005 (6) ALD 391 and Syed abdullah v. Smt. G. Rajamani, 2005 (5)ALD 394 = 2005 (5) ALT 117 . ( 5 ) HEARD the Counsel and perused the oral and documentary evidence on record and the findings recorded by the learned rent Controller and also the appellate authority. ( 6 ) AS already referred to supra, CRP no. 6851 of 2003 is filed as against an order in R. C. A. No. 8 of 1995 on the file of the appellate Authority reversing the order in r. C. C. No. 33 of 1984 on the file of the learned Rent Controller. ( 6 ) AS already referred to supra, CRP no. 6851 of 2003 is filed as against an order in R. C. A. No. 8 of 1995 on the file of the appellate Authority reversing the order in r. C. C. No. 33 of 1984 on the file of the learned Rent Controller. It was pleaded that the schedule premises was constructed about 50 years back and the tenant is monthly tenant and the monthly rent being Rs. 150/-which is payable on 1st of every succeeding month and the tenant had taken the premises for cycle business but he also started repairing the cycles causing damage to the property and misusing the property and causing nuisance to the landlord and his family members. The tenant has not been paying rent regularly and he has committed wilful default in payment of rents from May, 1983 onwards. It was further pleaded that the petition schedule premises became old and its roof became dilapidated requiring immediate reconstruction and for the purpose also the tenant has to vacate the premises. The landlord wants to open his business under the name and style Jupiter Enterprises dealing in Cement, iron and Hardware in the schedule premises and for that purpose the tenant has to vacate the premises. The landlord has no other business premises of his own in his possession and hence he bona fidely requires the premises for his personal accommodation. The tenant filed a counter denying the allegations and taking stand that the landlord filed R. C. C. No. 25 of 1975 virtually with the same allegations and the same was dismissed and all other allegations also had been denied. The tenant filed r. C. C. No. 64 of 1983 praying for permission to deposit rents on the ground that the landlord refuses to receive rent for the month of May and July, 1983 and immediately the tenant got issued a registered notice through his Counsel on 5-7-1983 calling upon him to name the bank showing his account number and in the meanwhile the landlord received two months rent on 6-7-1983 and got issued reply notice. It was also pleaded that for the month of july, 1983 the tenant offered the rent in time but the landlord refused to receive it. Then he had sent by M. O. and the same was refused. It was also pleaded that for the month of july, 1983 the tenant offered the rent in time but the landlord refused to receive it. Then he had sent by M. O. and the same was refused. However, the landlord came and received on 12-8-1983 and issued a receipt. Again for the month of August, 1983 the landlord refused to accept the money order. Hence, the petition. The landlord denied the allegations. ( 7 ) THE learned Rent Controller recorded the evidence of the landlord as p. W. I and the tenant as R. W. 1, and marked exs. A. 1 to A. 11 and Exs. B. l to B. 9 and came to the conclusion that the tenant to be permitted to deposit rents and the landlord is not entitled for eviction on any of the grounds and ultimately allowed R. C. C. No. 64 of 1983 and dismissed R. C. C. No. 33 of 1984. The matters were carried by way of appeals as aforesaid and the appellate authority reversed the said orders. Aggrieved by the same, the present C. R. Ps are preferred. Inasmuch as both the CR. Ps referred to as against the common order and dispute is in between the landlord and tenant and the landlord prayed relief for eviction and the tenant praying relief of permission to deposit the rents, this Court is disposing of both these C. R. Ps together. ( 8 ) AS can be seen from the material available on record, the relief for eviction was prayed on the following grounds. 1. Wilful default in payment of rents from the month of May, 1983 onwards. 2. Bona fide personal requirement of the landlord to carry on his business. 3. For reconstruction of the premises. 4. The acts of nuisance committed by the tenant. ( 9 ) ON a careful scrutiny of the evidence of PW. 1 and RW. 1, this Court is well satisfied that there is no acceptable evidence and in fact no serious attempt had been made by the parties to let in any convincing evidence to satisfy the grounds 3 and 4 referred to supra i. e. reconstruction of the schedule premises and acts of nuisance. In all fairness the Counsel on record also would maintain that these grounds may not be available for the purpose of ordering eviction. Hence, these grounds need not be seriously considered. In all fairness the Counsel on record also would maintain that these grounds may not be available for the purpose of ordering eviction. Hence, these grounds need not be seriously considered. ( 10 ) IN the light of the rival submissions made by both the Counsel, the following points arise for consideration in these c. R. Ps. i. Whether the findings recorded by the appellate authority in relation to the ground of wilful default to be confirmed or to be disturbed in the facts and circumstances of the case ?ii. Whether the ground of bona fide personal requirement is available to the landlord in the facts and circumstances of the case ?iii. Whether the tenant be permitted to deposit rents in the light of the stand taken by him in R. C. C. No. 64 of 1983 ?iv. If so to what relief the parties would be entitled to ? ( 11 ) POINTS 1 to 3 : Points 1 to 3 can be dealt together for the purpose of convenience inasmuch as the selfsame evidence of PW. 1 and RW. 1 may have to be appreciated while dealing with these grounds. The landlord who was examined as PW. l deposed that the tenant is a wilful defaulter in payment of rent from the month of May 1983 and he also further deposed that the schedule premises is required for him for his own business under the name and style Jupiter Enterprises and no doubt he also deposed the need of reconstruction of the building and also the acts of nuisance said to have been committed by the tenant. The other two grounds already had been answered supra. The first ground is the wilful default in payment of rents from May 1983. It is not in controversy that the tenant filed R. C. C. No. 64 of 1983 praying for the relief to permit him to deposit rents into the Court on the ground that the landlord is refusing to accept the rents. Ex. B. l is the office copy of the notice issued by the tenant to the landlord on 5-7-1983. Ex. B. 2 is the reply issued by the landlord stating that he is ready and willing to receive rents and he never refused to accept the same. The appellate authority had considered Exs. Ex. B. l is the office copy of the notice issued by the tenant to the landlord on 5-7-1983. Ex. B. 2 is the reply issued by the landlord stating that he is ready and willing to receive rents and he never refused to accept the same. The appellate authority had considered Exs. B. 5 to B. 9 in detail and recorded reasons how these documents would not come to the aid of the tenant to explain away that he had not committed wilful default at all. Apart from this aspect of the matter, this ground of wilful default and bona fide personal requirement were not taken in the prior R. C. C. No. 25 of 1975 and the same was dismissed and the matter was carried by way of appeal and also revision and those proceedings were also resulted in dismissal. The said proceedings may not be altered the situation for the reason that the main and principal grounds now being dealt with the grounds of wilful default and bona fide personal requirement were not the grounds specifically raised in the prior R. C. C. No. 25 of 1975. It is no doubt true that the learned appellate authority at Para 20 had recorded certain reasons and had taken the pleadings in R. C. C. No. 64 of 1983 and some other material in relation to the said R. C. C. Submissions at length had been made by the learned Counsel representing the tenant that such procedure which had been adopted by the appellate authority is not in accordance with law. Be that as it may, the fact remains that several of the aspects had been discussed by the learned Judge only to explain the conduct of the tenant and ultimately arrived at conclusion that the procedure specified under the Rules had not been followed and the said procedure being mandatory, the default committed by the tenant during the said period to be held as wilful default. Incidentally the subsequent default also had been taken into consideration but it is pertinent to note that the eviction was not ordered only on the ground of subsequent default. The additional subsequent default also had been taken into consideration while appreciating the conduct of the tenant coupled with the default already committed by him. Incidentally the subsequent default also had been taken into consideration but it is pertinent to note that the eviction was not ordered only on the ground of subsequent default. The additional subsequent default also had been taken into consideration while appreciating the conduct of the tenant coupled with the default already committed by him. It is true that pleading is not clear and the evidence is also not clear relating to the specific months of default. But the fact remains there was no prompt payment and prompt procedure had been followed by the tenant and there cannot be any doubt whatsoever in the light of the elaborate findings recorded by the appellate authority at Para 20, the said findings cannot be found fault. Much comment was made on the alleged admission said to have been made by PW. 1. "it is true to say that I refused to accept the rent of July, 1983 in August and then on 9-8-1983. " The relevant portion of the deposition of PW. l may be looked into for the purpose of better appreciation. PW. l deposed "there is no written lease. It is not true to say i refused to accept rent for May, 1983 and then he sent rent through M. O. It is not true to say June, 1983 rent also refused to accept by me. It is true to say ex. B. 1 notice was issued by respondent. It is true to say I refused to accept the rent of July, 1983 in August and then on 9/8/1983 respondent sent it through m. O. It is not true to say I refused the august, 1983 rent also and the same was sent through M. O. I do not know about m. O. coupons filed by respondent in court. It is not true to say due to that reason the respondent filed RCC 64 of 83 for permitting him to deposit rents in court. It is not true to say respondent not fell in arrears of rent wilfully. " ( 12 ) A careful reading of the portion of the evidence referred to supra of PW. l, it is no doubt true that a genuine apprehension would be caused in the mind of the Court whether the omission is not bona fide omission or whether PW. l deposed in such a fashion. " ( 12 ) A careful reading of the portion of the evidence referred to supra of PW. l, it is no doubt true that a genuine apprehension would be caused in the mind of the Court whether the omission is not bona fide omission or whether PW. l deposed in such a fashion. Even if such a mistake had crept in the deposition, this court may have to appreciate the evidence as it stands and the word not cannot be read into what is not there in the deposition. Even if the said statement to be taken as an admission, it is in relation to the month of July and the same may not seriously alter the situation. It is no doubt true that the learned Counsel for tenant placed strong reliance on the decision of the Full Bench in vinukonda Venkata Ramana v. Mootha venkateshwar Rao (supra) to substantiate his contention inasmuch as there was no arrears at all on the date of filing of the eviction petition, ground of wilful default would not be available. This question need not detain this Court any longer for the reason that the wilful default as pleaded coupled with the subsequent conduct and the subsequent default also had been considered and findings had been recorded by the appellate authority in reversing the order of the learned Rent Controller. In the light of the detailed reasons given by the appellate authority, this Court is of the considered opinion that the ground of wilful default had been established. Coming to the aspect of bona fide personal requirement, the evidence of PW. 1 and RW. 1 is available on record. RW. l in fact admitted in the cross-examination"in the same building in a hall PW. 1 commenced business in 1982. It is true to say my shop is to the west of that hall. There is no business at all to pw. l only for this purpose he commenced the so-called business. Certain submissions were made that this ground to be taken as a ground of additional accommodation and not bona fide personal requirement. Here is a case where the landlord is said to have temporarily accommodated his business in the hall of residential portion and not in a non-residential portion. l only for this purpose he commenced the so-called business. Certain submissions were made that this ground to be taken as a ground of additional accommodation and not bona fide personal requirement. Here is a case where the landlord is said to have temporarily accommodated his business in the hall of residential portion and not in a non-residential portion. It is not even the case of the tenant that in the adjacent non-residential premises, he had commenced the business and he requires the premises as additional accommodation. It is peculiar case where the landlord it appears had accommodated his business in the hall of residential portion under the compelling circumstances and continuing the same for want of accommodation. It is no doubt true that in the pleading he had taken a stand that he has no other premises but the evidence appears to be contrary. It is pertinent to note that it is the choice of the landlord to choose his own premises for the purpose of accommodating his own business. In the light of the same, the contradictory stand if any taken in pleading and proof cannot come in the way of this landlord getting an order of eviction on the ground of bona fide personal requirement. Hence, the stand taken by the tenant that this would fall under the ground of additional accommodation also cannot be sustained especially in view of the fact that the landlord is temporarily running the business in the hall of his residential portion. Several of the decisions which had been cited by both the learned Counsel need not be dealt with in elaboration since on facts this court is satisfied that the findings recorded by the appellate authority in relation to both the grounds are sustainable. It is needless to say that in view of the fact that on the grounds of wilful default and bona fide personal requirement, the landlord is bound to succeed in these C. R. Ps. It will be a futile exercise to record findings in detail in relation to the tenant either being permitted or not being permitted to deposit the rents. The said question in the considered opinion of this Court is more academic in the light of the peculiar facts. It will be a futile exercise to record findings in detail in relation to the tenant either being permitted or not being permitted to deposit the rents. The said question in the considered opinion of this Court is more academic in the light of the peculiar facts. Hence, this court is of the considered opinion that in the light of the detailed reasons recorded by the appellate authority in relation to grounds of wilful default and bona fide personal requirement, the landlord is bound to succeed. On other grounds as already referred to supra, the evidence is highly insufficient and hence no findings need be recorded. Accordingly order of eviction granted is hereby confirmed on the grounds of wilful default and bona fide personal requirement. " ( 13 ) IN the light of the reasons recorded above, C. R. Ps are bound to fail and accordingly C. R. Ps. shall stand dismissed. However, the tenant is granted four months time to vacate the premises on condition of payment of rents for the said period also. No order as to costs.