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Telangana High Court · body

2020 DIGILAW 430 (TS)

Syed Bin Abdullah Ba Hakam v. Shaik Azeem

2020-05-29

SHAMEEM AKTHER

body2020
ORDER : This Civil Revision Petition, under Section 22 of the A.P.Buildings (Lease, Rent & Eviction) Control Act, 1960, is filed by the petitioner/landlord, challenging the judgment, dated 06.10.2017, passed in R.A.No.138 of 2015 by the Chief Judge, City Small Causes Court, Hyderabad, whereby, the order, dated 17.06.2015, passed in R.C.No.129 of 2013 by the Principal Rent Controller-cum-XII Junior Civil Judge, Hyderabad, ordering eviction of the respondent/tenant from the petition schedule property, was quashed. 2. Heard the learned counsel for both the sides and perused the record. 3. The revision petitioner herein is the landlord and the respondent herein is the tenant of the premises bearing No.19-1-873/6/1/A/9 situated at Bahadurpura, Hyderabad (hereinafter referred as ‘petition schedule property’). The revision petitioner/landlord filed the subject R.C.No.129 of 2013 before the learned Principal Rent Controller-cum-XII Junior Civil Judge, Hyderabad, seeking eviction of the respondent/tenant from the petition schedule property contending as follows: “The petitioner is the absolute owner and landlord of the petition schedule property. The respondent obtained the petition schedule property on monthly rent of Rs.2000/- for running A business, under Rental Agreement, dated 08.02.2008. The respondent used to pay the rent of the petition schedule property to the revision petitioner through his GPA, who is none other than his father. While so, the petitioner and his GPA requested the respondent to vacate and handover the petition schedule property for the personal bona fide requirement of the petitioner for carrying on old motor spare parts business, as the petition schedule property is centrally located. But the respondent is avoiding to vacate and handover the possession on one pretext or other. The petitioner is having the petition schedule property and adjacent shop No. 19-1-873/6/1/A/10. Hence the petition.” 4. The respondent/tenant filed counter contending as follows: “The petitioner is the absolute owner and landlord of the petition schedule property. The petitioner, through his GPA who is his father, gave assurance to the respondent that he can do business in the petition schedule property till he is fit and proper to be the tenant, subject to payment of rent promptly. Thus, the tenancy became a permanent tenancy without stipulation of any period. The petitioner is well settled in Saudi Arabia since 25 years and is gainfully employed there. He has no intention to come to India and start his own business. There are no bona fides in the claim of the petitioner. Thus, the tenancy became a permanent tenancy without stipulation of any period. The petitioner is well settled in Saudi Arabia since 25 years and is gainfully employed there. He has no intention to come to India and start his own business. There are no bona fides in the claim of the petitioner. The petitioner is having another shop at Afzalgunj, which is centrally located, besides the petition schedule property and its adjacent shop. The petitioner has no acquaintance with the old motor spare parts business since his childhood. The ground of personal bona fide requirement raised by the petitioner is not genuine. The petitioner has not approached the Court with clean hands and he filed the petition suppressing the true facts. There is no iota of truth in the claim of the petitioner. The petition is liable to be dismissed.” 5. On merits, the trial Court allowed the subject R.C.No.129 of 2013 directing the respondent to vacate and handover vacant possession of the petition schedule property to the revision petitioner within two months from the date of the said order, failing which the petitioner was set at liberty to evict the respondent under due process of law. 6. Aggrieved by the said order of the trial Court, the respondent/tenant filed the subject R.A.No.138 of 2015 before the Court below. The Court below, on re-appreciation of the evidence on record, allowed the appeal by quashing the order of the trial Court. Aggrieved by the same, the revision petitioner/landlord filed this Civil Revision Petition. 7. The learned counsel for the revision petitioner/landlord would contend that the impugned judgment is contrary to law and facts. The Court below failed to consider the numerous contentions putforth by the petitioner in proper perspective. The Court below failed to consider the crucial point that though the respondent had setup permanent tenancy, but he failed to prove the same by leading cogent and convincing evidence. The Court below erred in allowing the appeal on the ground that the petitioner failed to examine himself by entering into witness box in order to prove his case. The GPA holder of the petitioner, who is his father, had complete knowledge about the day to day affairs of the petition schedule property, including collection of rents. Therefore, he was examined as P.W.1. The defense set up by the respondent is not genuine. The GPA holder of the petitioner, who is his father, had complete knowledge about the day to day affairs of the petition schedule property, including collection of rents. Therefore, he was examined as P.W.1. The defense set up by the respondent is not genuine. The appellate Court did not look into the petition averments and the evidence on record before quashing the reasoned eviction order passed by the trial Court and ultimately prayed to set aside the judgment under challenge and allow the Civil Revision Petition as prayed for. In support of his contentions, the learned counsel had relied on the following judgments. 1. Raghunath G. Panhale (dead) by LRs. Vs. Chaganlal Sundarji and Co., (1998) 8 Supreme Court Cases 1 2. D.Sasi Kumar Vs. Soundararajan, 2019 (9) Supreme Court Cases 282 8. On the other hand, the learned counsel for the respondent supported the impugned judgment and contended that the Court below rightly quashed the order of the trial Court. The petitioner is well settled in Saudi Arabia since the last 25 years and he has no intention to come to India and start old motor spare parts business. The petitioner had not entered into the witness box to prove his bona fide requirement of the petition schedule property. The respondent never committed default in payment of rent pertaining to the petition schedule property. The personal requirement of the petition schedule property by the petitioner is not genuine and the said ground is created only for eviction of the respondent from the petition schedule property and to harass him. The petitioner had suppressed the material fact that he has got another shop in Afzalgunj locality apart from the petition schedule property and its adjacent shop. There are contradictions and inconsistencies in the evidence of P.W.1. The Court below rightly quashed the order of the trial Court. There is nothing to interfere with the same and ultimately prayed to dismiss the Civil Revision Petition. In support of his contentions, the learned counsel had relied on the following decisions. 1. Maqboolunnisa Vs. Mohd. Saleha Quaraishi, (1998) 9 Supreme Court Cases 585 2. Gulabbai Vs. Nalin Narsi Vohra and others, (1991) 3 Supreme Court Cases 483 3. Mohammed Abdul Rahman and others Vs. B.Manorama and another, 2008 LawSuit (AP) 281 4. Deena Nath Vs. Pooran Lal, (2001) 5 Supreme Court Cases 705 9. 1. Maqboolunnisa Vs. Mohd. Saleha Quaraishi, (1998) 9 Supreme Court Cases 585 2. Gulabbai Vs. Nalin Narsi Vohra and others, (1991) 3 Supreme Court Cases 483 3. Mohammed Abdul Rahman and others Vs. B.Manorama and another, 2008 LawSuit (AP) 281 4. Deena Nath Vs. Pooran Lal, (2001) 5 Supreme Court Cases 705 9. In view of the above rival contentions, the point that arises for determination in this Civil Revision Petition is as follows: “Whether the impugned judgment, dated 06.10.2017, passed in R.A.No.138 of 2015 by the Chief Judge, City Small Causes Court, Hyderabad, is liable to be set aside?” Point: 10. As per Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under section 15 or by the appellate authority on appeal under section 20, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and may pass such order in reference thereto, as it thinks fit. 11. In a recent decision of the Hon’ble Apex Court in Daya Rani and another Vs. Shabbir Ahmed, decided on 22.08.2019 in Civil Appeal No.6594 of 2019), it was held in paragraph No.14 as follows: “14. The law is thus well settled that while exercising revisional power, the High Court cannot re-appreciate the evidence on record, both oral or documentary. Further the consideration while exercising revisional jurisdiction is confined to find out whether the findings of fact rendered by the Court or Authority below were according to law and did not suffer from any error of law.” 12. In the instant case, admittedly, there is no dispute with regard to the jural relationship between the parties and the quantum of rent pertaining to the petition schedule property. Therefore, the point, which was strenuously contended before this Court and which requires consideration by this Court is whether the plea of personal bona fide requirement of the petition schedule property by the petitioner is genuine. P.W.1, in his cross-examination, dated 26.11.2013, had categorically deposed that his son (the petitioner) is working in Saudi Arabia in Bilaluddin Contract Company since 25 years. Admittedly, the petitioner has not examined himself in the subject Rent Control Case. P.W.1, in his cross-examination, dated 26.11.2013, had categorically deposed that his son (the petitioner) is working in Saudi Arabia in Bilaluddin Contract Company since 25 years. Admittedly, the petitioner has not examined himself in the subject Rent Control Case. He did not enter into witness box to testify the facts within his knowledge to establish that he intends to come back to India to start old motor spare parts business in the petition schedule property. Non examination of a party to the proceedings leads to draw an adverse inference under Section 114 of the Evidence Act. The only witness examined on behalf of the petitioner is P.W.1, who is his Power of Attorney Holder. It is settled legal preposition that a power of attorney holder cannot depose in place of the principal. Provisions of Order III Rules 1 and 2 of CPC empower the attorney holder to ‘act’ on behalf of the principal. The word ‘acts’ employed therein is confined only to ‘acts’ done by the power of attorney holder by virtue of the instrument. The term ‘acts’ would not include deposing in place of and instead of the principal. Similarly, a power of attorney holder cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined (See: Vidhyadhar Vs. Manikrao and another { AIR 1999 SC 1441 }; Janki Vashdeo Bhojwani Vs. Indusind Bank Limited { 2005 2 SCC 217 }). The bonafide requirement is, in the first place, a state of mind, though it may be something more. It must, therefore, be deposed to by the person who is requiring the premises, namely, the landlord. If the landlord does not step into the witness box to bring before the Court legal evidence for proving his requirement, then it cannot be said that he reasonably and bona fidely requires the premises. A landlord can delegate the authority to conduct a case, but he cannot delegate the duty to depose. In the instant case, nothing prevented the petitioner to come to India and depose before the Court in the Rent Control Case to prove his bona fides. Therefore, non-examination of the petitioner as a witness in the Rent Control Case is fatal to his case. 13. In the instant case, nothing prevented the petitioner to come to India and depose before the Court in the Rent Control Case to prove his bona fides. Therefore, non-examination of the petitioner as a witness in the Rent Control Case is fatal to his case. 13. Further, as rightly held by the Court below, there are several contradictions and inconsistencies in the evidence of P.W.1, which leads to the conclusion that the petitioner had approached the Court with unclean hands and improved his case from time to time. P.W.1 initially denied the deposit of Rs.40,000/- made by the respondent towards security deposit, but admitted in his cross-examination about the same. There is no single document to establish that the respondent is a perpetual tenant and the tenancy is perpetual one. P.W.1 admitted in his cross-examination that the petitioner visited India five years ago (five years prior to 26.11.2013). He further admitted that the petitioner never got issued any letter/notice from Saudi Arabia to the respondent to vacate the petition schedule property. Further, it was elicited in the cross-examination of P.W.1 that since eight years P.W.1 is demanding the respondent to vacate the petition schedule property, but not the petitioner. All these inconsistencies and the categorical admissions of P.W.1 in his evidence clichingly establish that the plea of personal bona fide requirement of the petition schedule property by the petitioner is not genuine. 14. The learned counsel for the petitioner had relied on Raghunath G. Panhale’s case (1 supra). The landlord therein filed a suit for possession of non residential premises on the ground of bonafide requirement. During the pendency of the case, the original plaintiff died and his heirs were brought on record. They filed an application for amendment under Order VI Rule 17 of CPC and the same was allowed. The third legal representative pleaded that the same premises was required for himself for starting a grocery business. On the amended pleadings, both parties adduced evidence. The trial Court held that on the death of the original landlord, the suit was abated because the original landlord's requirement was for himself and his requirement differed from that of his heirs. The trial Court further held that the requirement of the legal heir was not bona fide. The suit was dismissed. The trial Court held that on the death of the original landlord, the suit was abated because the original landlord's requirement was for himself and his requirement differed from that of his heirs. The trial Court further held that the requirement of the legal heir was not bona fide. The suit was dismissed. The lower appellate Court confirmed the finding on the question on bona fide requirement, but reversed the finding as to abatement, stating that the plaint was amended, and thereafter parties have adduced evidence on the question of the need of the legal representatives. The appeal was dismissed. Aggrieved thereby, an appeal was filed before the Hon’ble Apex Court and the Hon’ble Apex Court held that it is an exceptional case calling for interference under Article 136 of the Constitution of India and, accordingly, allowed the appeal. The facts of the said case are distinct from the facts of the case on hand. In the instant case, the landlord did not step into the witness box to prove his bona fide requirement of the petition schedule premises, which is fatal to his case. 15. The learned counsel for the petitioner had also relied on D.Sasi Kumar’s case (2 supra). The landlord therein filed a rent control case against the tenant for his eviction on the ground of bona fide requirement of the property for setting up a garment shop. It was contended that since the premises requires alterations to be made in that regard, the landlord also intended to demolish the existing structure and put up a construction suitable for his purpose. The landlord himself was examined as P.W.1 in that case. The tenant resisted the petition inter alia disputing the jural relationship. The trial Court ordered eviction. The appeal preferred by the tenant before the first appellate Court was dismissed. The tenant approached the High Court and the High Court allowed the revision by reversing the orders of both the Courts below. Aggrieved thereby, the landlord approached the Hon’ble Apex Court and the Hon’ble Apex Court allowed the appeal holding that the crucial date for deciding the bonafide requirement of landlord is the date of application for eviction and that the High Court erroneously arrived at conclusion that bona fide occupation as sought, should be not only on date of petition, but it should continue to be there on date of final adjudication of rights. On facts, the said decision is also distinguishable from the case on hand. 16. In view of the foregoing discussion, it is held that findings of fact recorded by the Court below are according to law and do not suffer from any error of law. The Court below appreciated the oral and documentary evidence on record in correct perspective and rightly quashed the order, dated 17.06.2015, passed in R.C.No.129 of 2013 by the Principal Rent Controller-cum-XII Junior Civil Judge, Hyderabad. There is no illegality, irregularity or impropriety in the judgment under challenge. There is nothing to take a different view. The Civil Revision Petition is devoid of merit and is liable to be dismissed. 17. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.