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Andhra High Court · body

2008 DIGILAW 974 (AP)

Ch. Manikya Sarma v. Rajendra Singh Bhatia

2008-11-14

VILAS V.AFZULPURKAR

body2008
Judgment : This revision is preferred by a landlord who suffered a reversal of an eviction order under the impugned order of the lower appellate Court. 1. 2. The brief facts are that the landlord is the owner of premises bearing Nos.15-8-457 and 457/1, situated at Feelkhana, Hyderabad. While premises No.457/1 is a mulgi (shop), the premises No.457 is a residential portion located just behind 457/1. 2. 3. It is alleged that the respondent-tenant was let out the mulgi initially in April, 1976, and thereafter, residential portion was also let out in August, 1979. While the rent of the mulgi is Rs.225/-per month, the rent of the rear side residential portion is Rs.125/-per month. It is alleged that the tenant is irregular in payment of rent and that the tenant stopped carrying on business and kept the mulgi under lock and stopped using the residential portion also and has shifted to Nanded, Maharashtra State, one year back. Since both the premises are under the lock and key for over one year without use and unoccupied by the tenant, the eviction petition was filed on the ground that the tenant has ceased to occupy the suit premises for over one year. 3. 4. The tenant filed a counter alleging that the premises obtained by him are under different tenancy and they are separately let out for different purposes on different dates and as such contended that a single eviction petition suffers from mis-joinder. The tenant denied that there is any default in payment of rent and he also denied that he has ceased to occupy the premises. The tenant has stated that he is very much staying in the residential portion and also carrying on business in the mulgi but admitted that he has to go over to Nanded frequently in connection with his business over there. 4. 5. Thelearned Rent Controller framed two points for consideration viz., as to whether the tenant is willful defaulter? and as to whether the landlord is entitled to eviction on the ground of tenant ceasing to occupy the suit premises? 5. 6. While the landlord examined himself as P.W.1 and got marked Ex.P-1, rental deed, and Exs.P-2 to P-6, counter foils of rent receipts, the tenant examined himself as R.W.1 and got marked Exs.R-1 and R-3 to R-6, rent receipts, and Ex.R- 2, legal notice, dated 06-02-1997 and Exs.R-7 to R-10, Commission Memo Books. 5. 6. While the landlord examined himself as P.W.1 and got marked Ex.P-1, rental deed, and Exs.P-2 to P-6, counter foils of rent receipts, the tenant examined himself as R.W.1 and got marked Exs.R-1 and R-3 to R-6, rent receipts, and Ex.R- 2, legal notice, dated 06-02-1997 and Exs.R-7 to R-10, Commission Memo Books. 6. 7. The learned Rent Controller found on trial that there is no willful default committed by the tenant, but so far as the second point is concerned, it was answered in favour of the landlord and eviction order was passed accordingly. Questioning the same, the tenant preferred an appeal before the lower appellate Court. The lower appellate Court framed two points viz., as to whether single eviction petition is maintainable for both the residential and non-residential premises obtained by the same tenant under two different leases on different dates and as to whether the tenant has ceased to occupy the schedule premises. 7. 8. In point No.1, on maintainability, the appellate Court held that a single eviction petition is not maintainable when the tenancies are different viz., one tenancy obtained for residential and other for non-residential premises, which could not have been clubbed together by filing single eviction petition. However, so far as the second point that the tenant has ceased to occupy the schedule premises is concerned, appellate court concurrently held against the tenant. However, on account of finding that the single eviction petition is not maintainable, allowed the appeal and dismissed the eviction petition. The said order is questioned by the landlord in this revision. 8. 9. In viewof the fact that both the Courts have concurrently held that the tenant has ceased to occupy the premises in terms of Section 10 (2)(v) of the A.P. Buildings (Eviction, Lease and Rent) Control Act (for brevity 'the Act'), the only point which falls for consideration, on which, both the learned counsel have addressed the Court, is that whether the single eviction petition is maintainable covering the tenancy of residential and non-residential premises? 9. 10. The learned counsel for the petitioner-landlord has submitted that though the tenancy of mulgi was under a rental deed, dated 01-04-1976 and later the residential portion, with effect from 01-08-1979, both are between the same landlord and tenant. 9. 10. The learned counsel for the petitioner-landlord has submitted that though the tenancy of mulgi was under a rental deed, dated 01-04-1976 and later the residential portion, with effect from 01-08-1979, both are between the same landlord and tenant. The tenanted portions are also integral, in the sense that the shop is the front portion used for the business and rear portion is used for residence and as such it is really a single tenancy, where additional portion was given to the tenant later on. He, therefore, contends that there is absolutely no justification for the lower appellate Court to nonsuit the landlord on that ground. He also contends that no such point was raised before the learned Rent Controller, and in any case, he submits that the entire eviction petition could not have been dismissed as the landlord could have always confined the said eviction petition to one portion even assuming that single eviction petition covering both the portions is not maintainable. Learned counsel has relied upon a decision of the Supreme Court reported in Boddu Narayanamma V. Venkatarama Aluminium Co. And Others (1999) 7 Supreme Court Cases 589 = AIR 1999 S.C. 3549 and contends that the said decision squarely applies to the facts of the present case and hence, the single eviction petition is maintainable. He further contends that there is no prejudice to the tenant even if it is one eviction petition as the case, which the tenant has to meet is common. 11. The learned counsel for the respondent-tenant submits that the tenancy being separate and the rents being paid separately under separate receipts is not in dispute. He, therefore, contends that when the tenancy is separate, the landlord cannot file one eviction petition covering separate tenanted premises, especially, when one is for residential use and the other is for non-residential use. Learned counsel has distinguished the decision of the Supreme Court cited on behalf of the petitioner-landlord on the ground that was a case of a single tenancy for different purposes and as such is not similar to the one on hand. 10. 12. The lower appellate Court, while considering the said aspect in point No.1, has noticed Order II Rule 3 CPC. 10. 12. The lower appellate Court, while considering the said aspect in point No.1, has noticed Order II Rule 3 CPC. It cannot be disputed that though two adjacent portions were let out to the same tenant on different dates, the eviction petition is filed on a ground viz., ceasing to occupy under Section 10 (2) (v) of the Act, which is common with respect to both the said tenancies. The cause of action, therefore, is common, arising out of same act or ommission, on which, the landlord claims the relief and is specifically permissible under Order II Rule 3 CPC. However, the lower appellate Court has followed the decision of Madras High Court in Unnamali Achi V. Saminatha Pathar 1980 (93) Madras L.W. 404 and held that single eviction petition is not maintainable. 1. 13. In Narayanamma's case (1 supra), two different portions were let out to the same tenant; one for residence and other for non-residential purposes, and the landlord had sought eviction of the tenant on the ground of bona fide personal requirement from both the premises. While the finding of bona fide personal requirement was reached in favour of the landlord, by the appellate authority, the High Court had allowed the tenant's revision on the point of maintainability, while confirming the finding of bona fide personal requirement. The Hon'ble Supreme Court considered the said question of maintainability and after referring to several decisions, where single eviction petition was filed covering both the premises between the same landlord and same tenant, by holding that the law does not require that landlord can seek the premises for his own occupation only for the purpose of which it has let out to the tenant and held that the relief is to be granted with reference to the nature of the building and not with reference to the purposes for which it is let. 2. 14. 2. 14. Apart from the above decision, the said question as to maintainability of single eviction petition fell for consideration before the Hon'ble Supreme Court, even on an earlier occasion, in S.M. Gopalakrishna Chetty V. Ganeshan And Others AIR 1975 SUPREME COURT 1750, wherein, in paragraph 10, the contention on behalf of the tenant objecting to the maintainability of single eviction petition with regard to different tenancies, although in the same premises, one for residential purpose and the other for non-residential purpose, was rejected and it was held that when the tenancy is one, the objection has no substance. 3. 15. In another decision, delivered by His Lordship Justice Nainar Sundaram (as his Lordship then was) reported in D. Rukmani Ammal And Others V. V.K. Izudden AIR 1983 MADRAS 303, several decisions were reviewed including the decision in Unnamalai Achi's case (2 supra), and ultimately, conclusion was recorded in para-9, which is in the following words: "9. In the instant case, though there are two different door numbers, they have been the subject matter of a single lease and that too, to a single tenant; and structurally the two door numbers are situated in such a proximity and other physical features establish such a nexus that there is a warrant to treat them as a single unit let out as such to the tenant. The tenant is in common enjoyment of the unit as a whole though bearing two different door numbers. By no stretch of imagination it could be stated that the tenant was put to prejudice by the process of a single petition for eviction under Section 14 (1) (b) of the Act adopted by the landlords." 1. 16. A reference was also made to an earlier judgment in Umsalma Bibi V. Lakkia Gowder 1967-1 MADRAS LJ 277, where though on facts relating to three different tenanted portions, conclusion was that the tenancies were separate. It was also recorded that in dealing with such objection, cardinal and salutary principle to be followed is that if no prejudice has been or is being caused to the tenant even in such a contingency, courts should not throw out such proceedings. In fact, in that case, the Court declined to interfere with the eviction orders passed while exercising revisional jurisdiction, as there was no prejudice to tenant. 2. 17. In fact, in that case, the Court declined to interfere with the eviction orders passed while exercising revisional jurisdiction, as there was no prejudice to tenant. 2. 17. In Unnammalai Achi's case (2 supra) where the building bore three door numbers and were let out at three different points of time and were not found to be covered by a single tenancy arrangement; and were not found to be in one and the same premises and for different purposes. Even in this case, it was found that clubbing of three door numbers would prejudice to the tenant and on that ground single eviction petition was held not maintainable. In the present case, there is nothing to indicate any prejudice to the tenant nor there is even a hint of any prejudice on the part of the tenant. 3. 18. In one another decision of Patna High Court, rendered by His Lordship Justice S.B. Sinha (as His Lordship then was), reported in Padam Singh Jain V. M/S. Chandra Brothers And Others AIR 1990 Patna 95, it was also a case of same tenant, let in two different portions and the similar objection was rejected as is evident from the following extract: "21. As noticed hereinbefore that the cause of action for institution of the suit by the plaintiffs as against the defendant is common; the defendant-petitioner in relation to both the tenanted premises is having a common interest as he is a tenant of the plaintiffs in respect of both the premises. 1. 22. In terms of O.2 R.3 of the Code, a plaintiff is entitled to unite in the same suit several causes of action against the same defendant or even jointly. 2. 23. The question of a suit becoming bad for misjoinder of cause of action arises where different plaintiffs claimed different reliefs against a set of defendants or different defendants. However, it is well known that whence two or more plaintiffs are jointly interested in two or more causes of action against the same defendant, they can join all the causes of action in the same suit. It is not the case of the defendant that the interest amongst the plaintiffs inter se are conflicting or antagonistice one. However, it is well known that whence two or more plaintiffs are jointly interested in two or more causes of action against the same defendant, they can join all the causes of action in the same suit. It is not the case of the defendant that the interest amongst the plaintiffs inter se are conflicting or antagonistice one. However, in the instant case, even that plea is not available to the defendant in view of the fact that, as indicated hereinbefore, the cause of action for filing the suit is common i.e. bona fide personal requirement of the plaintiffs in respect of both the tenanted premises. 24. In view of the fact that prior to the institution of a suit in terms of the provisions of the said Act the tenancy is not required to be terminated, it cannot even be said that as the two tenancies were required to be terminated severally and thus there were separate causes of action for institution of suit by the plaintiffs. However, as indicated hereinbefore, even in such a situation the suit will not fail on the ground of multi-feriousness in view of O.2 R.3 of the Code." .19. Therefore, the finding of the lower appellate Court dismissing eviction petition on the ground that single eviction petition is not maintainable is liable to be reversed and is accordingly set aside. .CRPMP.No.6319 of 2008: 2. 20. I had heard this revision petition fully on 21-10-2008 and posted 'for judgment' on 24-10-2008. On that day, a request was made on behalf of both the learned counsel that they would explore the possibility of settling the matter and sought time. The revision, was, therefore, adjourned to 31-10-2008 and further to 03-11-2008. Meanwhile, the learned counsel for the tenant filed C.R.P.M.P.No.6319 of 2008 under Order VI Rule 17 CPC seeking permission to amend the counter by raising para 8 (a) in R.C.No.349 of 1996, as additional ground along with copies of some new documents (which comprises of Gazette Notification, issued by the Assistant Director of A.P. State Archieres and Research Institute and Munthakab, issued by the Assistant Commissioner, Endowments Department) were filed. 3. 21. The learned counsel for the landlord filed a counter along with three documents and the said C.R.P.M.P.No.6319 of 2008 was again heard at length on 04-11-2008. In view of these later developments, it is necessary to deal with the said application also. .22. 3. 21. The learned counsel for the landlord filed a counter along with three documents and the said C.R.P.M.P.No.6319 of 2008 was again heard at length on 04-11-2008. In view of these later developments, it is necessary to deal with the said application also. .22. The basic contention, which the tenant seeks to raise, through this application, is that the schedule property is notified as endowment property by the then Government of Nizam and issued a Muntakhab (order of grant). The learned counsel for the tenant contends that the aforesaid information was not available to the tenant and it was not within his knowledge, which has a very .crucial bearing on the issue. He contends that on the basis of the said document, it has to be interfered that the petitioner-landlord is not the owner of the property and secondly; that the aforesaid property is governed by A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 and all premises governed under the said Act are exempt from the A.P. Buildings (Eviction, Lease and Rent) Control Act. He, therefore, contends that in view of this new development, the eviction petition itself is not maintainable as the rent control Court would have no jurisdiction to entertain the same. In support of his submission, the learned counsel has relied upon a decision of this Court reported in M.Abdul Huq And Another V. Mukti Masjid 1973 (1) APLJ (SN) 90 as well as Siva Koti Sri Hari V. Batchu Kotaya Gari Sri Kasi Visveswara Annasatram 1972 ALT (SN) 3. 4. 23. It is true that under G.O.Ms.No.622, dated 04-05-1960, all buildings belonging to the religious and charitable institutions in the State governed under the Madras Hindu Religious Charitable Endowments Act, 1951, or Hyderabad Endowments Regulation, 1349 fasli, are exempted from provisions of the A.P. Buildings (Eviction, Lease and Rent) Control Act. Further, the aforesaid two legislations, mentioned in the Notification, are succeeded by the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 and now by the new A.P. Act of 1987. Further, the aforesaid two legislations, mentioned in the Notification, are succeeded by the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 and now by the new A.P. Act of 1987. The Division Bench of this Court in Siva Koti Sri Hari's case (6 supra), has held that the Notifications under the A.P. Buildings (Eviction, Lease and Rent) Control Act, referring to Madras Act and Hyderabad Regulations, are deemed to cover the 1966 Act by virtue of Section 18 of the A.P. General Clauses Act and the exemption would still continue to govern the premises covered under the premises belonging to and governed by the Act of 1966. 5. 24. The learned counsel for the tenant also cited a decision reported in Noor Ali V. Badrinath A.W.R. 1969 452, which specifically holds that the building belonging to the Religious or Charitable Institutions or Endowment Department, governed by either of the two Acts, mentioned in G.O.Ms.No.622, would stand exempt and Rent Controller would have no jurisdiction to entertain any eviction petition. 6. 25. The learned counsel for the landlord has strongly refuted the said stand sought to be taken by the tenant by making a two-fold submission; firstly, that the factual assumption of the tenant that the property in question belongs to a Charitable Institution or Endowment is factually incorrect, and secondly, that a tenant, who has secured the tenanted premises from the landlord under a rental deed and who has through out admitted the relationship of landlord and tenant, cannot turn round and claim at the fag end of the revision petition before this Court that the landlord is not the owner and somebody else is the owner. .26. The learned counsel relied upon Section 116 of the Indian Evidence Act and claims that the tenant is estopped from denying the title of the landlord and such denial has to be held to be willful .and mala fide. .26. The learned counsel relied upon Section 116 of the Indian Evidence Act and claims that the tenant is estopped from denying the title of the landlord and such denial has to be held to be willful .and mala fide. The learned counsel has filed a copy of true translation of order of Commissionerate of Eccliastical Department, Government of Hyderabad, as well as a copy of the extract of Municipal Corporation Assessment Register of Property Tax, for the years 1958 to 1966 and a copy of extract of the Town Survey Register and contends that the three documents read together would show that the property in question is to the South of the property which was registered as Charitable Institution viz., the temple and Darmashala. The property in question was recognized in the aforesaid proceedings as private property of Bal Chandraiah situated to the South of the temple and Dharmashala, and is duly recorded in the name of wife of late Bal Chandraiah in the municipal assessment extract showing house numbers and the same is also confirmed by the Town Survey Register which is based upon statutory survey conducted by the Government under the A.P. Survey and Boundaries Act, 1973. He, therefore, contends that the very factual assumption of the tenant is wrong and further contends that the tenant is making desperate attempts to hang on to the premises by bringing before this Court part of the information convenient to him and suppressing the other part which is against to him. He contends that the plea now sought to be raised is not only highly belated but is without any factual foundation and is aimed at stalling the eviction proceedings with a view to create future litigation, which ought not to be allowed and urged that this Court should take serious note of the conduct of the tenant. 7. 27. While it is well settled that a tenant cannot deny the title of the landlord, the present case shows that the tenant has resorted to a desperate plea after the hearing in C.R.P. was completed. The plea sought to be raised by the tenant is firstly; opposed to Section 116 of the Indian Evidence Act and secondly; has no factual foundation whatsoever. The plea sought to be raised by the tenant is firstly; opposed to Section 116 of the Indian Evidence Act and secondly; has no factual foundation whatsoever. The tenant has not produced any original documents and is relying upon mere copies and from the documents produced by the landlord, the assumption of the tenant, appears to be without basis. Even if the copies of proceedings of endowment authorities produced by the tenant and by the landlord, respectively, are ignored on the ground that they are mere copies, the copies of municipal extract and town survey (TS) extract, produced by the landlord, were not doubted by the tenant and it was not the case of the tenant that the said extracts also are incorrect. The property tax extract as well as town survey extract clearly show the house number of the said property being registered and recorded in the name of the predecessor of the landlord and there is not even inkling that the suit property belongs to any charitable or religious endowment. The said plea of the tenant, therefore, is clearly an after thought and has no factual foundation apart from being highly belated. The conduct of the tenant further shows that though he is not using the premises for the last several years, some how, he wants to keep the premises beyond the reach of the landlord on one ground or the other. .28. This is also evident from the fact that the tenant raised the plea of maintainability of single eviction petition though he was fully aware that he has to meet a common case and the common ground and has no apparent prejudice whatsoever. There is no reason, therefore, as to why this Court should come to the aid of a tenant, who is seeking to trick the landlord by raising hiper .technical pleas, and is only interested in stalling the eviction proceedings on some ground or the other. Therefore, I am of the opinion that there are absolutely no bona fides in the stand sought to be taken by the tenant and his very conduct in raising his contention in filing C.R.P.M.P.No.6319 of 2008 clearly amounts to tenant denying the title of the landlord, mala fide, which, by itself, is a separate ground for eviction under Section 10 (2) (vi) of the Act. 8. 29. 8. 29. Keeping in view the over all circumstances, therefore, I am of the view that the eviction petition R.C.No.349 of 1996 on the file of the learned Principal Rent Controller, Hyderabad, deserves to be allowed by setting aside the order of the lower appellate Court in R.A.No.158 of 2000 to the extent of decision of the appellate Court in point No.1. In view of the concurrent findings of the learned Rent Controller as well as the lower appellate Court, as above, that a tenant has ceased to occupy the schedule premises as contemplated under Section 10 (2) (v) of the Act, the revision petition deserves to be allowed. 9. 30. Accordingly, the Civil Revision Petition is allowed and order of the learned Rent Controller is restored to file. 10. 31. In view of the finding reached by both the Courts below which are confirmed hereunder, it is not necessary to grant any time to the tenant to vacate the premises, as he is not using the premises for several years. However, to obviate any convenience to the tenant, time is granted to the tenant up to 15th December, 2008 to handover vacant possession of the petition schedule premises to the landlord, failing which, the landlord will be free to execute the decree after 15th December, 2008. No costs.