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Andhra High Court · body

2008 DIGILAW 892 (AP)

Podugu Appa Rao v. Grandhi Sathiraju

2008-10-18

VILAS V.AFZULPURKAR

body2008
ORDER: 1. This revision is preferred by the legal representatives of the tenant against the orders in RCA No. 4 of 2001 on the file of the Appellate Authority (Senior Civil Judge), Vizianagaram, dated 16.4.2005. The parties are being referred to as 'the landlord' and 'the tenant'. 2. The landlord filed RCC 10 of 1996 seeking eviction of the tenant on the ground of wilful default, bona fide personal requirement, committing acts of waste affecting the value and utility of the building and sub-letting the premises. The learned Rent Controller negatived the grounds of bona fide personal requirement, wilful default and sub-letting the premises pleaded by the landlord, but upheld the ground of acts of waste affecting the value and utility of the building and ordered eviction of the tenant. In appeal by the tenant before the lower appellate court challenging the finding of the learned Rent Controller to the extent of acts of waste affecting the value and utility of the building, the landlord also filed cross-objections to the extent of findings recorded against him. Under the impugned order the lower appellate Court has upheld the ground of acts of waste affecting the value and utility of the building, by agreeing with the findings of the learned Rent Controller and has also upheld the wilful default pleaded by the landlord against the tenant. However, the ground of sub-letting was concurrently rejected by the appellate court also, so also the ground of personal requirement. 3. In this revision the learned counsel for the petitioner-tenant contends that the findings of both the courts below that the tenant having committed the acts of waste of building is clearly unsustainable in view of the fact that the building admittedly is more than 70 years old and the landlord has not carried out any repairs. He also contends that Ex.A5-letter permits the tenant to undertake repairs and the cost of repairs will be reimbursed to the tenant only if he obtains prior permission of the landlord. He, therefore, pleads that it is not as if that the repairs were totally not permissible. He also contends that the alleged repairs of door ways etc. alleged against the tenant, even if it amounts to alteration, it does not amount to affecting the utility of the building and as such the order of eviction is not warranted on the facts and circumstances of the case. 4. He also contends that the alleged repairs of door ways etc. alleged against the tenant, even if it amounts to alteration, it does not amount to affecting the utility of the building and as such the order of eviction is not warranted on the facts and circumstances of the case. 4. Per contra, the learned counsel for the respondent-landlord contends that the concurrent findings of both the courts below do not deserve to be interfered with as they are based upon evidence on record. The learned counsel contends that the acts of waste which formed basis of ground for eviction was even justified by the advocate-commissioner who had inspected the building and filed a detailed report which is marked as Ex.C1. He also contends that R.W.5 who is examined on behalf of the tenant (son of original tenant) admitted to the alterations and acts of waste as alleged by the landlord and as such no interference is warranted by this Court. So far as other grounds which were held against the landlord are concerned, there is no serious contest and as such the only question that falls for consideration in this revision is whether the orders of both the courts below ordering eviction of the tenant on the ground of committing acts of waste affecting the value and utility of the building is justified? 5. Section 10 (2) (iii) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short "the Act") provides that the landlord is entitled to seek eviction of the tenant on the ground that the tenant has committed acts of waste which is likely to impair materially the value and utility of the building. A similar case came up for consideration before the Hon'ble Supreme Court in Gurbachan Singh and another Vs. Shivalak Rubber Industries and others 1 wherein the Supreme Court observed as follows, "12. Section 13(2) (iii) of the East Punjab Urban Rent Restriction Act which provides a ground for eviction of tenant reads as under :- "13 (2) (iii).- that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land." A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing......" "14...........The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act......." 6. Similar provision was considered in G. Reghunathan Vs. K.V. Varghese 2 wherein the Supreme Court referred to its earlier judgment and held as follows, "........In Om Prakash v. Amar Singh (1987) 1 SCC 458 = AIR 1987 SC 617 ) interpreting the same provision, it was held that the question whether a construction materially altered the accommodation was a mixed question of fact and law. The dictionary meanings of the expressions "materially" and "alter" were considered. It was held to mean "a substantial change in the character, form and the structure of the building without destroying its identity". It had to be seen whether the constructions were substantial in nature and they altered the form, front and structure of the accommodation. No exhaustive list of constructions that constitute material alteration could be given. The determination of that question depended on the facts of each case...." 7. It had to be seen whether the constructions were substantial in nature and they altered the form, front and structure of the accommodation. No exhaustive list of constructions that constitute material alteration could be given. The determination of that question depended on the facts of each case...." 7. Further in British Motor Car Co. Vs. Madan Lal Saggi (dead) and another 3 the above two decisions were also considered by the Supreme Court and it was held that, "....When the construction is alleged to have materially impaired the value and utility of the premises; the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building......" 8. In order to appreciate the above, it is necessary to notice the following pleadings and evidence on record. 9. Even prior to the filing of the eviction petition, the landlord had given notice-Ex.A3 dated 20.8.1992 in which the following averment is made, ".....You have taken the said premises for the purpose of carrying on business of selling fruits. You have been misusing the building by committing acts of waste which impaired materially the value and utility of the building by making structural alterations such as construction of additional room, conversion of stair case into a kottu (small room) by displacing the municipal water tap and closing the front side door with bricks and mortar. You are also causing nuisance in the premises by permitting the plantain vendors to keep their wares on rental basis. You have not obtained any permission from my client for the above said structural alterations nor informed my client. You have been deliberately committing the acts of waste in order to diminish the value of the building and not maintaining the same as is required for proper occupation (by my client)............." 10. In reply thereto under Ex.A4, dated 24.8.1992, while the tenant denied the said allegations of alteration, it is contended as follows, "4. My client did not commit any acts of waste which impairs the utility and value of the building. My client is not misusing the said building by constructing additional room by displacing the municipal water tap. The water tap is as it was. My client neither displaced the water tap nor closed the front side door with bricks and mortar. My client did not commit any acts of waste which impairs the utility and value of the building. My client is not misusing the said building by constructing additional room by displacing the municipal water tap. The water tap is as it was. My client neither displaced the water tap nor closed the front side door with bricks and mortar. The retail fruit vendors come to the shop of my client and keep their wares until they are supplied with their requirements. My client does not allow any vendor to keep his ware on rental basis. My client has no necessity to allow the vendors to keep their ware on rental basis. 5. My client about two years back with the permission of your client, got the "Terrace of the building" repaired by spending Rs.6,000/- with condition that your client should pay the same to my client free from interest and my client also likewise got the drain from the place of the tap to the municipal drain by installing cement pipes all through by spending Rs.1,500/- about six months back. Your client is liable to pay the said sums of amounts i.e., Rs.6,000/- and 1,500/- to my client." 11. While the landlord reiterated the same allegations in Para-III (a) of the eviction petition, in the counter filed by the tenant it is stated in paras 9 and 10 as follows, "9. The respondents did not cause any alteration muchless structural alterations to the building. The respondents did not violate the terms and conditions for which he took the petition schedule building. The respondents have not misused the building by committing acts of waste which impairs materially the value and utility of the said building by making structural alterations, such as construction of additional room, conversion of stair case into Kottu (small room) by displacing municipal water tap and closing the front side door with bricks and mortar. The respondents did not convert the stair case into small room. The respondents did not displace the municipal water tap. The respondents did not close the front side door with bricks and mortar. The building is as it was at time of leasing the room (to) the respondent. 10. Unless the raw fruits are processed, the respondents cannot carry on the business in fruits." 12. The respondents did not displace the municipal water tap. The respondents did not close the front side door with bricks and mortar. The building is as it was at time of leasing the room (to) the respondent. 10. Unless the raw fruits are processed, the respondents cannot carry on the business in fruits." 12. It is evident from the above averments of the tenant that while there is a blanket denial of the landlord's allegations, it is asserted that raw fruits are being processed and without that he could not carry on business. Processing of raw fruit and its effect on the building was noticed by the advocate- commissioner who had carried out the inspection of physical features of the building. He noticed that out of the total premises, third room has two windows on the western side of the wall which are covered with mud. There is no ventilation to the room and on the eastern side there is a doorway with two wooden doors and these doors have long patches. The room walls are covered with soot (masi). On the southern side of the third room, there is a 4th room which was closed and the door was locked with wooden stick. The inspection of that room was objected to by the learned counsel for the respondents (tenants) as it was said that process of 2000 bunches of banana was going on. Similarly on the eastern side of the 6th room, there is a 7th room which has two windows covered with soil and the roof has fallen down and iron rods came out. In the northern and southern sides there are two holes and in both the holes, there are pieces of wooden poles. The room walls also are covered with soot (masi). On the eastern side of footpath, there is an 8th room, which consists of two doorways. Each doorway has two wooden doors. There is no window and it is a tiled roof. The floor is cement floor with holes and it is in a damaged condition. The commissioner similarly inspected the rest of the building and on a later point of time he also inspected the 4th room and his report with respect to this room is as follows, "....The room situated on the southern side of the 3rd room. The floor is cement floor with holes and it is in a damaged condition. The commissioner similarly inspected the rest of the building and on a later point of time he also inspected the 4th room and his report with respect to this room is as follows, "....The room situated on the southern side of the 3rd room. The room has one door way on eastern side with two modern doors and these doors are with long patches. The room wall is covered with soot (masi). On the southern side wall there is a small damage. The room was covered with smoke........" 13. Further R.W.1 who is the son of the original tenant admitted in his cross- examination as follows, "It is not true to suggest there are two door ways on North Eastern side and North-Western side of the petition schedule building. It is true we are using the door way situated on Northwestern side of the petition schedule building. The door way is made up of with wooden frame and iron rods. It is true Northwest door way is opening into the verandah. Abutting to the verandah, there is an office room. ....... It is not true to suggest we constructed cement wall in place of Northeast door way by closing the doorway. There is a municipal tap connection to the petition schedule building. So also electricity connection. We are not paying the water tax..... It is not true to suggest processing of fruits does not come under the definition of business.........I did not go through the report filed by the Advocate-commissioner....It is not true to suggest the walls of the rooms i.e., room Nos. 4, 6 and 7 are covered with smoke dust. It is not true to suggest the roof portion in the 7th room became damaged due to the processing of bananas. It is not true to suggest we closed the windows and doors to the room Nos. 2, 4, 6 and 7 and they became dark and using processing for which the said rooms became useless and damaged. ......." 14. The advocate-commissioner who gave his report-Ex. C1 was examined as P.W.2 and marked his report as Ex.C1. There is hardly any cross-examination on his report and his notings as to the physical features of the building. 15. 2, 4, 6 and 7 and they became dark and using processing for which the said rooms became useless and damaged. ......." 14. The advocate-commissioner who gave his report-Ex. C1 was examined as P.W.2 and marked his report as Ex.C1. There is hardly any cross-examination on his report and his notings as to the physical features of the building. 15. P.W.1 who is the landlord, deposed in his evidence that originally the deceased tenant was carrying on fruit business and subsequently he started using the premises for processing of banana fruits due to which damage was caused to the petition schedule building. For processing of banana the tenant used to collect charges from third parties. The roofs of the rooms in which processing was made had collapsed and now the schedule property is in a collapsed condition. In cross-examination a specific suggestion was given to the landlord as follows, "It is not true to suggest that the respondents are carrying on whole sale banana business by purchasing plantain garden and processing the raw banana in the petition schedule building. The respondents closed the windows and ventilators of the room situated near the stair case." 16. The above evidence clearly establishes that the tenant is using the schedule premises for processing of bananas. For processing of raw bananas, it necessarily requires the raw bananas to be subjected to heat treatment and it looks consistent that the tenant closed the rooms by closing the doors and windows and by artificially applying heat treatment to the raw bananas he processed the bananas and that business is being carried out by taking plantain garden and after processing, he is selling the bananas. This, therefore, clearly explains that the rooms in the schedule premises are filled with smoke dust, all ventilators and windows are closed, some door ways are also closed and the roofs of some other rooms are damaged. Using the premises in such a manner, therefore, clearly amounts to using the premises so as to seriously affect its value and utility. The water tap connection which was admittedly available appears to have been disconnected as the tenant admittedly did not pay the water bill and tax. Using the premises in such a manner, therefore, clearly amounts to using the premises so as to seriously affect its value and utility. The water tap connection which was admittedly available appears to have been disconnected as the tenant admittedly did not pay the water bill and tax. The findings of both the Courts below particularly that of the learned Rent Controller under paragraphs-16 and 17 of it's order are, therefore, clearly based upon the evidence on record and cannot be said to be either perverse or contrary to the evidence on record. 17. The learned counsel for the petitioner/tenant has placed reliance on Ex.A5, a letter written by the original tenant to the landlord on 22.10.1974 to contend that there was no restriction on the tenant with respect to repairs. The said letter written by the tenant states that for undertaking any repairs, he will take permission of the landlord and in the event of his carrying on any repairs on his own, the tenant will himself bear the expenditure. A reading of the said letter, therefore, does not in any way advance the contention of the learned counsel for the tenant. Firstly in the said letter the tenant recognizes that he needs to obtain permission from the landlord for carrying on repairs and if any repairs are made on his own, he will not seek any reimbursement. Para-5 of the reply notice of the tenant extracted above is contrary to the said letter-Ex.A5. Secondly it cannot be construed that the tenant has licence to carry on any alterations or repairs as long as he does not claim reimbursement from the landlord. The acts of the tenant which threaten the very safety and utility of the building are by itself recognized as ground for eviction. Further it is not a case of mere change or addition to the demise premises and not a mere minor modification which does not affect the utility of the building. It is evident from the record that the destruction or damage to the building is wilful and deliberate. If the process of raw fruit is carried out by generating a heat in the closed room, it is, but natural that the rooms would be completely rendered inhabitable, apart from the damage to the structure. The learned counsel for the tenant relied upon a decision of this Court reported in Sona Optics Vs. If the process of raw fruit is carried out by generating a heat in the closed room, it is, but natural that the rooms would be completely rendered inhabitable, apart from the damage to the structure. The learned counsel for the tenant relied upon a decision of this Court reported in Sona Optics Vs. Shyam Sunderbhargava and others 4 and stressed paragraphs 22 to 24 thereof. Firstly the finding of the court on this point would be dependent on particular facts and record of each case. This Court also in the aforesaid decision has categorically noticed the above and recorded that on the facts of that case the landlord failed to allege or prove any such acts of waste on the part of the tenant. The facts in the present case and the evidence on record as noticed above, therefore, clearly amount to the tenant committing serious acts of waste affecting the value and utility and damage to the building and as such the findings of both the Courts below on this aspect do not require any interference by this Court under Section 22 of the Act. 18. The other contention of the learned counsel for the tenant that the eviction has been ordered on the ground of wilful default by the lower appellate court, however, requires consideration. As has been mentioned above, the learned Rent Controller negatived the wilful default, but disagreeing with the same, the lower appellate court has upheld the said ground on the reasoning that though the tenant had filed an application seeking permission to deposit rents vide RCC 3 of 1996, the tenant committed wilful default by not seeking an interim order to deposit rents during the pendency of the eviction petition. As rightly contended by the learned counsel for the tenant, merely because an application for interim order to deposit was not made by the tenant would not make the tenant a wilful defaulter. The filing of an application under Section 8 of the Act vide RCC No. 3 of 1996 seeking permission to deposit rents, therefore, only shows that the tenant has made all efforts to tender the rents and ultimately has approached the court by way of an application under Section 8 of the Act seeking permission to deposit the rents. The filing of an application under Section 8 of the Act vide RCC No. 3 of 1996 seeking permission to deposit rents, therefore, only shows that the tenant has made all efforts to tender the rents and ultimately has approached the court by way of an application under Section 8 of the Act seeking permission to deposit the rents. Just because the tenant has not sought interim order of permission to deposit the rents from the Court in the application under Section 8 of the Act would not make the tenant a wilful defaulter and on that score the finding of the lower appellate court upholding the ground of wilful default against the tenant requires interference and accordingly the said finding is set aside. 19. However, in view of the fact that the ground of the tenant committing acts of waste affecting the value and utility of the building, which was upheld by both the Courts below, and which finding is confirmed herein, renders the order of eviction sustainable, and the revision petition, therefore, is dismissed on the said ground and the eviction ordered by the Courts below is confirmed. No order as to costs. 20. However, to offset the hardship, if any, that may be caused to the tenants in vacating the petition schedule premises, I deem it appropriate to grant time till 31st January, 2009 to vacate the petition schedule premises subject to following conditions, 1) That the tenants shall file an undertaking before the Rent Controller on or before 15th November, 2008 that they shall vacate the schedule premises by or before 31st January, 2009, pay the arrears of rent, if any, and shall continue to pay the monthly rents to the landlords during the period of occupation and file the receipts thereof before the Rent Controller or deposit the rents to the credit of RCC before the Rent Controller; and shall also undertake that a) That the tenants shall not alienate, transfer or otherwise part with the possession or create any third party interest over the schedule premises, and; b) That the tenants shall handover peaceful and vacant possession of the schedule property to the landlord on or before 31st January, 2009; 2) That in default of fulfilling of any of the above conditions, the landlords shall be free to approach the executing court for execution of the decree.