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Andhra High Court · body

2006 DIGILAW 415 (AP)

Tanguturi Seetharamaiah v. Pulipati Padmavathi

2006-03-22

P.S.NARAYANA

body2006
O R D E R Heard Sri M. V. Suresh Kumar representing Sri A. Satyanarayana, the learned Counsel for revision petitioner and Sri V.S.R. Anjaneyulu, the learned Counsel for respondent. 2. Respondent herein is the petitioner in R.C.C. No.159/97 on the file of Rent Controller, Vijayawada (hereinafter she will be referred to as ‘landlady’ for the purpose of convenience). The revision petitioner herein - tenant is the respondent in R.C.C. No.159/97. The learned Rent Controller negatived the relief both on the grounds of wilful default and additional accommodation on appreciation of the evidence available on record i.e., the evidence of P.W.1-the husband of the landlady and R.W.1-the tenant and Exs.A.1 to Ex.A.7 and Exs.B.1 to Ex.B.3. The landlady aggrieved by the same had carried the matter by way of appeal R.C.C.M.A. No.57/99 on the file of Rent Control Appellate Authority-cumPrincipal Senior Civil Judge, Vijayawada and the - Appellate Authority recorded certain findings and arrived at a conclusion that the findings recorded by the learned Rent Controller relating to wilful default cannot be sustained and accordingly set aside the said findings but however confirmed the findings relating to the ground of additional accommodation especially in the light of the relative or undue hardship. Aggrieved by that portion of the order, reversing the ground of wilful default and ordering eviction, the tenant had carried this matter by way of this present revision under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter in short referred to as ‘Act’ for the purpose of convenience). 3. Sri M VS. Suresh Kumar, the learned Counsel representing the tenant had taken this Court through the factual aspects, the date of purchase and the subsequent events and how the tenant was depositing rents either in the suit O.S. No.338/97 or in the R.C.C. filed by the tenant praying for permission to deposit the rents. The learned Counsel had taken this Court through the findings recorded by the learned Rent Controller in relation to the ground of wilful default and would comment that the Appellate Authority, after the matter was reserved for orders, had called for the ledger extract, verified the same and recorded certain findings and this would amount to not affording opportunity to the tenant to explain his stand relating to the same. The learned Counsel would maintain that this procedure adopted by the Appellate Authority cannot be sustained. The learned Counsel would maintain that this procedure adopted by the Appellate Authority cannot be sustained. Further the learned Counsel would maintain that even otherwise though there appears to be some delay relating to one month, in the light of the explanation given by the tenant, the same cannot be said to be wilful default. The Counsel also explained the conduct of the parties and would contend that in the light of the fact that in the month of April the tenant had in fact invoked the jurisdiction of the Rent Controller under Section 8(5) of the Act, this would clearly go to show the anxiousness of the tenant to make deposit of rents. The Counsel while commencing about the additional accommodation would contend that inasmuch as the concurrent findings had been recorded on the ground of the relative hardship to be established in relation to additional accommodation, the said findings need not be disturbed by this revisional Court. 4. Per contra, Sri V.S.R. Anjaneyulu, the learned Counsel representing the landlady had taken this Court through the evidence of P.W.1-the husband of the landlady who had specifically deposed about the default even subsequent to the filing of the R.C.C. and would comment that this is sufficient. The learned Counsel also while commenting about the application which was moved before this Court C.R.P.M.P.No.8652/2005 would maintain that the first document is certified copy of the decree and judgment in O.S.No.338/97, the other documents - the challans dated 27-3-1997, 7-5-1992 in O.S. No.338/97, even if to be taken into consideration that itself shows that there is clear default at least for the month of January, 1997 since the challan itself is dated 27-3-1997. The learned Counsel also would comment that even otherwise the alleged deposit said to have been made in the original suit would not enure to the benefit of the tenant since the procedure under the provisions and the operation thereof under the Act cannot be escaped by the tenant. The learned Counsel placed reliance on several decisions in this regard. The learned Counsel also would comment that even otherwise the alleged deposit said to have been made in the original suit would not enure to the benefit of the tenant since the procedure under the provisions and the operation thereof under the Act cannot be escaped by the tenant. The learned Counsel placed reliance on several decisions in this regard. The learned Counsel also would comment that inasmuch as now it is a settled position that even on the ground of wilful default, the subsequent events can be taken into consideration, the Appellate Authority though it fit to call for the record and verified whether at least during the pendency of the proceeding the deposits were being made regularly and having satisfied that even subsequent default had been there, the learned Judge recorded proper findings and the said findings need not be disturbed. While further commenting the learned Counsel would maintain that even on the ground of Section 10(3)(c) of the Act, there is no specific plea in the counter relating to the hardship of the tenant and in the absence of the same, several other details which had been mentioned would not cure the defect. The learned Counsel placed strong reliance on the decision of the Division Bench in Srikakulam Subrahmarryam (died) per LRs. v. Pandeshtivara ,Ianardhan Rao, 1994 (3) ALT 204 (DB), in relation thereto. The Counsel also placed reliance on K.C. Kanniyappan v. Y. Venkataramana Rao, 1988 (1) ALT 414 and P. Srinivasulu v. M/s. Shanthi Trader, AIR 1982 Mad. 126 . While further elaborating his submissions, the learned Counsel would maintain that in the light of the view expressed by the Division Bench referred to supra, in the absence of a specific plea in relation thereto by the tenant and also in the light of the evidence of P.W.1, both the Courts below definitely had erred in not ordering eviction on yet another ground, the ground of additional accommodation. 5. Heard the Counsel and perused the record available and also the findings recorded by both the learned Rent Controller and also the Appellate Authority. 6. The landlady filed R.C.C. No.159/ 97 on the file of Rent Controller, Vijayawada as against the tenant praying for eviction on two grounds (1) wilful default (2) additional accommodation. 5. Heard the Counsel and perused the record available and also the findings recorded by both the learned Rent Controller and also the Appellate Authority. 6. The landlady filed R.C.C. No.159/ 97 on the file of Rent Controller, Vijayawada as against the tenant praying for eviction on two grounds (1) wilful default (2) additional accommodation. It is the case of the landlady that she is the owner of the property having purchased the same from Palakurthy Venkata Subrahmanyeswar Rao under a registered sale deed dated 31-10-1996 and several other facts relating to the tenancy of the tenant and the monthly rent payable and the other aspects had been narrated. It was pleaded that she has been running business under the name and style of Sri Kanaka Durga Book Depot and inasmuch as her business improved and has been growing day-by-day, she had requested the tenant to vacate the premises and he requested time till December, 1996 and later he again sought for extension of time till the end of February, 1997 but however failed to vacate the same. It was also pleaded that the tenant was informed about the purchase of property and he promised to pay rents from November, 1996 at the time of vacating the premises but failed to pay the rents. Therefore she got issued a notice to the tenant to pay rents and then the tenant failed to pay rents inspite of the demand. Thus wilful default had been committed by the tenant from 1-11-1996 onwards. The tenant filed a counter denying the allegations. Specific stand was taken by the tenant that he did not know about the purchase of the property till the owner of the property addressed a letter dated 12-1-1997 about the attornment of the tenancy and he paid the rents to the erstwhile owner till December 1996 and in the month of January 1997 he received a letter from erstwhile owner and approached the landlady to receive the rent and the landlady did not receive the rent on the pretext of nonavailability of her husband and promised to come to the property and receive the rents and therefore he waited for sometime and later he again approached the landlady and then the landlady refused to receive the rents and therefore, he sent the rent by way of Money Order and ultimately filed RCC No.36/97 under Section 8(5) of the Act. It was also stated that he filed the suit O.S.No.338/97 for permanent injunction on the file of Principal Junior Civil Judge, Vijayawada on 21-3-1997. No doubt, certain other additional facts also had been pleaded to the effect that the family of the landlady is owning some other premises and the other details. 7. On the strength of the pleadings, the following points had fallen for consideration before the learned Rent Controller : (1) Whether the petitioner is entitled to seek eviction of the tenant on the ground of wilful default in paying rents ? (2) Whether the petitioner is entitled to seek eviction of the tenant on the ground of personal occupation for the purpose of additional accommodation? 8. During the course of enquiry, husband of the landlady was examined as P.W.1 and Exs.A.1 to Ex.A.7 were marked. The tenant was examined as R. W.1 and Exs.B.1 to Ex.B.3 were marked. It is true that the learned Rent Controller negatived both the grounds on appreciation of evidence available on record but however the appellate Authority had revered the ground of wilful default but had confirmed the ground of additional accommodation. Certain documents are placed before this Court by way of additional evidence. This being a rent control proceeding, that too a revisional Court dealing with the matter under Section 22 of the Act, it is needless to say that this application filed under Order XLI Rule 27 C.P.C as such cannot be entertained since this is a civil revision petition and not a regular appeal. Be that as it may, in the considered opinion of this Court in the light of the several facts which had been narrated in the affidavit filed in support of the application this can be treated as application bringing to the notice of the Court the subsequent events. This Court is not inclined to express any farther opinion relating to the said application for the reasons which would be specified infra. The evidence of P.W.1, no doubt, is clear and categorical on the aspect of both the default committed by the tenant and also on the aspect of additional accommodation. Several of the details had been narrated by P.W.1. P.W.1 no doubt deposed that even after filing this R.C.C., the tenant is not depositing rents within due date and hence, the tenant committed wilful default in payment of rents. Several of the details had been narrated by P.W.1. P.W.1 no doubt deposed that even after filing this R.C.C., the tenant is not depositing rents within due date and hence, the tenant committed wilful default in payment of rents. This appears to be the stand taken by the landlady. But on a careful analysis of the date of purchase by the landlady and also what had been explained by the tenant, the default appears to be for one month and the same is a clear default. However, as far as the calling of the ledger extract and verification thereof and recording findings, this is a matter where the tenant was not put on notice and opportunity was not given to the tenant to explain his stand. It is no doubt true that when the procedure is notfollowed as contemplated by the Act or the Rules, any other mode of deposit may not enure to the benefit of tenant and the same may amount to wilful default. Certain submissions were made that the deposits, if any, made in the original suit may not enure to the benefit of the tenant. This Court is not inclined to express any opinion on the said aspect inasmuch as this may be subjectmatter of C.R.P.M.P. No.8652/2005. On the aspect of wilful default when the subsequent events had been taken into consideration by the learned Appellate Authority, the learned Appellate Authority could have put the tenant on notice, could have given an opportunity to both the parties to let in further evidence and could have recorded appropriate findings. Instead after reserving orders the Appellate Authority calling for the ledger extracts and on verification coming to a particular in the facts and circumstances may not be justifiable. Apart from this aspect of the matter, it is no doubt true that on a careful reading of the counter filed by the tenant, there is no specific plea of hardship though several other facts had been elaborately pleaded. Strong reliance was placed on decision of the Division Bench in Srikakulam Subrahmanyam’s case (supra), Reliance also was placed on K C. Kanniyappan’s case (supra) and P. Srinivasulu ‘s case (supra). Strong reliance was placed on decision of the Division Bench in Srikakulam Subrahmanyam’s case (supra), Reliance also was placed on K C. Kanniyappan’s case (supra) and P. Srinivasulu ‘s case (supra). The Appellate Authority in fact relied upon the decision in Kandasani Reddy v. O. Gomathi Ammal, AIR 1998 SC 3235 , and on the ground of the hardship which may be caused to the tenant outweighing that of the landlady, recorded certain reasons and came to the conclusion that the findings recorded by the learned Rent Controller to be confirmed. But however in the light of the decisions which had been relied upon by the learned Counsel representing the landlady, this approach adopted by the Appellate Authority in relation to appreciation of the ground additional accommodation cannot be sustained. This Court is thoroughly satisfied that this is a matter which requires reconsideration at the hands of the Appellate Authority. Hence, the said findings recorded by the Appellate Authority in relation to additional accommodation is also set aside. 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 let in further evidence on both the grounds, if the parties require to do so and record proper findings relating to both the grounds of wilful default and additional accommodation. As far as C.R.P.M.P. No.8652/2005 is concerned, no further orders are required to be passed and accordingly the said C.R.P.M.P. is hereby closed. The tenant is at liberty to receive the documents from this Court and he is also at liberty to file these documents, if he is so advised before the Appellate Authority. 9. Accordingly, the C.R.P. is allowed to the extent indicated above. It is made clear that inasmuch as at this stage Sri V.S.R. Anjaneyulu pleaded urgency, the Appellate Authority to dispose of the matter, after affording opportunity to both the parties to let in further evidence, if any, within three months from the date of receipt of a copy of this order. No costs. --X—