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2006 DIGILAW 748 (AP)

P. K. Agarwal (died) per Lrs. v. S. Raj Mohan Rao

2006-06-30

V.ESWARAIAH

body2006
ORDER This civil revision petition is directed against the order dated 27-4-2002 passed in RANo.133 of 1998 by the Chief Judge, City Small Causes Court, Hyderabad confirming the order dated 5-3-1998 passed in R.C.No.695 of 1995 by the IV Additional Rent Controller, Hyderabad. 2. Petitioners are the tenants and the respondent is the landlord in respect of the non-residential ground floor mulgi bearing No.5-3-486, situated at Old Topekhana, Opp. to Osmangunj, Hyderabad. The respondent filed R.C.No.695 of 1995 on the file of the IV Additional Rent Controller, Hyderabad, for eviction of the first petitioner herein - Pawan Kumar Agarwal, under Sections 10 (2) (v), 10 (2) (i) and 10 (2) (ii) (a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short the Act) on the grounds that the tenant has secured alternative accommodation and ceased to occupy the building in question; that the tenant has committed wilful default in payment of rents and that the tenant has sub-let the premises in question. The learned Rent Controller by order dated 5-3-1998 ordered eviction of the tenant on the ground of sub-letting against which the landlord filed RANo.132 of 1998 and the tenant preferred RANo.133 of 1998 on the file of the Chief Judge, City Small Causes Court, Hyderabad. The landlord filed the appeal insofar as rejecting his claim that the tenant has secured alternative accommodation and ceased to occupy the premises in question and committed wilfull default in payment of rents seeking eviction under Sections 10 (2) (v) and 10 (2) (i) of the Act. The tenant filed the appeal aggrieved by the finding that there was sub-letting. 3. During the pendency of the appeal R.A.No.133 of 1998, the tenant died and his legal representatives i.e. his two sons and wife, were brought on record as Appellants 2 to 4 and one Ashok Kumar, the power of attorney holder of the tenant also came on record as Appellant No.5 in RANo.133 of 1998. However, the legal representatives of the tenant were not brought on record in RANo.132 of 1998 filed by the landlord. Both the appeals were heard together and by common judgment dated 27-4-2002 the appeal of the landlord was allowed and the appeal of the tenant was dismissed. However, the legal representatives of the tenant were not brought on record in RANo.132 of 1998 filed by the landlord. Both the appeals were heard together and by common judgment dated 27-4-2002 the appeal of the landlord was allowed and the appeal of the tenant was dismissed. Aggrieved by the said common judgment insofar as dismissing the appeal R.A.No.133 of 1998 alone, the tenants preferred this civil revision petition and they have not preferred any revision against the RANo.132 of 1998. 4. Learned counsel for the tenants submits that it was the duty of the landlord to bring the legal representatives of the first tenant on record and therefore, the order passed in RANo.132 of 1998 against the dead person is nullity. Therefore, the judgment in R.A.No.132 of 1998 is not binding on the legal representatives of the tenant. 5. I am unable to accept the said contention in view of the judgment of the Apex Court in N. Jayaram Reddi v. Revenue Divisional Officer wherein at para 40 certain conclusions have been recorded which reads as follows: "40. The following conclusions emerge from these decisions: (1) If all legal representatives are not impleaded after diligent search and some are brought on record and if the Court is satisfied that the estate is adequately represented meaning thereby that the interests of the deceased party are properly represented before the Court, an action would not abate. (2) If the legal representative is on record in a different capacity, the failure to described him also in his other capacity as legal representative of the deceased party would not abate the proceeding. (3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate court and the respondent dies, substitution of his legal representatives in the cross objections being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa. (4) A substitution of legal representatives of the deceased party in an appeal or revision even against an interlocutory order would enure for the subsequent stages of the suit on the footing that appeal is a continuation of a suit and introduction of a party at one stage of a suit would enure for all subsequent of the suit. (5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the death of a party if his legal representatives are impleaded in one appeal it will riot enure for the benefit of cross-appeal and the same would abate." 6. In the same judgment at Para 43 the Apex Court clearly held that if out of a common judgment both the appeals are heard together and not one after the other and the legal representatives of the deceased were before the Court in one capacity viz. as legal representatives of the deceased appellant, but not so described as legal representatives of the deceased respondent that cannot make any difference and therefore, the appeal has not (be) abated. 7. I am of the opinion that the said principle will apply to the instant case as the legal representatives of the tenant were brought on record in the appeal filed by the tenant and the advocates of the said legal representatives were heard and after hearing both the parties simultaneously but not one after another the appellate Court delivered common judgment. A perusal of the judgment goes to show that the appeals were heard in the presence of Sri Narayan Rao, Advocate for the landlord in both the appeals and in the presence 9f Sri S.K. Mahesh, Advocate for the tenant in both the appeals. Therefore, it cannot be said that the tenants have not represented their case before the appellate Court. The judgment also goes to show that the tenants have advanced common arguments. Therefore, I am of the opinion that the judgment in R.A.No.132 of 1998 insofar as passing the eviction order on the ground of wilful default in payment of rents and that the tenant ceased to occupy the premises securing alternative accommodation, modifying the order of learned Rent Controller has become final. Therefore, I am of the opinion that the judgment in R.A.No.132 of 1998 insofar as passing the eviction order on the ground of wilful default in payment of rents and that the tenant ceased to occupy the premises securing alternative accommodation, modifying the order of learned Rent Controller has become final. Therefore, the tenants are liable to be evicted and it is open for the landlord to execute the order in RANo.132 of 1998 before the Rent Controller as the appellate Court deemed to have passed the eviction order on the ground of wilful default and on the ground that the tenant ceased to occupy the premises securing alternative accommodation. 8. Learned counsel for the tenants submits that the learned Rent Controller ordered eviction only on the ground of sub-letting under Section 10 (2) (ii) (a) of the Act against which the tenants filed RA 133 of 1998 wherein only the question of sub-letting was involved and therefore, they are entitled to file CRP under Section 22 of the Act. 9. Though the learned counsel for the landlord submits that the judgment in RANo.132 of 1998 has become final and the same operates as res judicata insofar as the contentions in R.A.No.133 of 1998 are concerned, I am of the opinion that the findings recorded in R.A.No.132 of 1998 are with regard to wilful default and securing alternative accommodation only but not with regard to sub-letting. Therefore, this CRP is maintainable, as the issue involved in this petition was not decided in R.A.No.132 of 1998. The only question that has to be considered is with regard to the concurrent findings recorded by the both the Courts below with regard to sub-letting on the pleadings and material evidence and whether the said findings are perverse and without any basis. 10. Insofar as the ground of sub-letting the only pleading that has been pleaded in Para 6 of R.C.C.No.695 of 1995 is extracted as follows: "The respondent has no authority to sublet the mulgi to third party and he has sublet the suit mulgi to one Ashok Kumar and having inducted third party, he is delivering (sic. deriving) premium and benefits from the suit mulgi. The acts of the respondent are illegal and without any authority, and therefore, he is liable to be evicted." 11. deriving) premium and benefits from the suit mulgi. The acts of the respondent are illegal and without any authority, and therefore, he is liable to be evicted." 11. In reply to the said Para 6, a counter has been filed by the tenant, which reads as follows: "The respondent denied the allegation that the premises is sublet to one third party by name Ashok Kumar and deriving premium and benefits from the suit mulgi is false. It is submitted that the business located in the suit mulgi is of the respondent and the profit and loss thereof is of the respondent and Ashok Kumar is his younger brother who is helping him in conducting the business at Hyderabad. The business located in the suit mulgi is carried by the respondent and his younger brother Ashok Kumar in the name and style of Ashoka Glass House, which is running since the inception of the tenancy. He denied that he has inducted Ashok Kumar in the suit mulgi and sub-let the mulgi. The respondent has neither transferred his right of tenancy nor sublet the suit mulgi or any portion thereof nor violated the provisions of law or agreement of tenancy, which was oral." 12. It is the contention of the learned counsel for the tenant that the tenant has not sublet any portion of the premises and the business located in the said mulgi belongs to the tenant and Ashok Kumar is not third party, but he is the younger brother of the tenant and is helping the tenant in conducting the business at Hyderabcid. The business located in the suit mulgi is still in occupation of the tenant; neither the tenant sub-let the mulgi nor inducted any third party in the said mulgi. He further submits that the tenant has not transferred any right of tenancy or sublet any portion of the mulgi and not violated any provision of law or any terms of tenancy. He further submits that though the burden to prove subletting is on the landlord the burden shifts depending upon the pleadings. 13. As the tenant has stated that Ashok Kumar was only his younger brother but not third party the burden shifted on the tenants to prove that the said mulgi was not sublet to Ashok Kumar and third party was not inducted in the said mulgi. 13. As the tenant has stated that Ashok Kumar was only his younger brother but not third party the burden shifted on the tenants to prove that the said mulgi was not sublet to Ashok Kumar and third party was not inducted in the said mulgi. In view of the specific averment made in the Para 6 of the counter I am also of the opinion that there was no specific pleading in the petition with regard to sublet and the pleadings were vague and without any material particulars. However, in view of the pleadings made in Para 6 of the counter the burden shifted on the tenants to prove that Ashok Kumar is not a third party but he is acting on behalf of his brother only and, the tenant has not ceased to occupy the premises. 14. The only question that arises for consideration is as to whether the tenant is able to prove that he has not sublet the premises and he continued in possession of the said premises. 15. In support of the contention of the tenant that Ashok Kumar is the brother of the tenant" and power of attorney holder of the tenant, Ashok Kumar was examined as R.W.1 and Exs.B-1 to B-22 were marked. There is no dispute with regard to the relationship of the tenant and the landlord. The petitioner in RC.No.695 of 1995 was the landlord and Pawan Kumar Agarwal was only the tenant in his individual capacity. To prove the contention of the tenant that the business belongs to him and that he never ceased to continue and carry on the business and that on his behalf his younger brother was looking after the business, Ex. B-3, the Assessment Order of the Commercial Tax Officer, in respect of the suit mulgi for the assessment year 1994-95 was filed showing the name of the business as M/s. Ashoka Glass House and nature of the business as glass bangles. EX.B-4 is the acknowledgement of filing the income tax returns showing the name of the assessee as Pawan Kumar Agarwal- tenant, proprietor of M/s. Ashoka Glass House in respect of the said premises and above the signature of the assessee, the tenant - Pawan Kumar Agarwal signed in English and the said return was for the assessment year 1993 - 94. The power of attorney executed by the tenant on 28-3-1994 was filed as EX.B-21. EX.B-22 - the municipal licence was taken on payment of Rs.1 001- in the name of Pawan Kumar Agarwal and on the said document it is contended by the learned counsel for the tenant that the possession was not given in favour of Ashok Kumar and the business carried in the name and style of M/s. Ashoka Glass House belongs to Pawan Kumar Agarwal and Ashok Kumar Agarwal is only helping his brother. 16. The perusal of Ex. B-3 - Assessment order of the Commercial Tax Officer for the year 1994 - 95 goes to show the name of the Assessee as M/s. Ashoka Glass House but nowhere it is mentioned as to who is the proprietor of M/s. Ashoka Glass House and nowhere the name of Pawan Kumar Agarwal appears in the said order. Insofar as EX.B-4 acknowledgement of the income tax returns for the year 1993 -94 is concerned the entire acknowledgement was written with a ball pen except the name of Pawan Kumar Agarwal, his fathers name and the signature of the tenant, which were written with ink pen and the tenant also signed in English. Thus, there appears some discrepancy in the acknowledgement. Therefore, I am of the opinion that both the Courts below rightly commented on the conduct of the tenant that in the power of attorney he has signed in Hindi whereas in the acknowledgement he has signed in English and thus the evidence adduced by the tenant was disbelieved. 17. I am of the opinion that had the tenant been in continuous possession of the said mulgi there would have been no need and necessity for him to execute a power of attorney in favour of his younger brother and he could as well have entered into the witness box and supported his case. Therefore, in view of the concurrent findings of fact recorded by both the Courts below that the tenant sublet the mulgi, I do not see any material irregularity or infirmity in the impugned order, warranting interference of this Court. 18. The civil revision petition is accordingly dismissed.