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2023 DIGILAW 607 (TS)

P Dattatreya v. Abdul Shukoor

2023-08-24

NAGESH BHEEMAPAKA

body2023
JUDGMENT 1. This Civil Revision Petition is filed under Sec. 22 of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short 'the Act') against Common Judgment in R.A.No.33 of 2014 and Cross-objections vide SR No.577 of 2014 dtd. 18/8/2015, whereunder the learned Additional Chief Judge, City Small Causes Court, Hyderabad set aside the eviction order passed by the I Additional Rent Controller, Hyderabad in R.C.No.213 of 2009, dtd. 13/11/2013. 2. Petitioner herein is the landlord and respondent is the tenant. For the sake of convenience, the parties herein after will be referred to as landlord and tenant. Not only on the ground of the tenant made default in payment of rents in respect of the suit schedule property but also for his personal bona fide requirement, the landlord preferred R.C.No.213 of 2009 for eviction of the tenant. It is stated that landlord is the absolute owner and possessor of petition schedule property and due to past acquaintance, the tenant prayed for lease of the petition schedule property forming part of premises bearing No. 8/3/230/9/E, Venkatagiri, Yousufguda, Hyderabad, on an initial monthly rent of Rs.800.00 per month in 2001 for the purpose of running a kirana and general stores with an understanding that whenever the landlord needs the premises for his personal occupation, the tenant should vacate the premises. It is further stated that the tenant was never regular in payment of rents. He committed default from January 2003 to April 2006 and after filing of the R.C. also. 3. The trial Court, after framing issues and also after considering both oral and documentary evidence adduced on behalf of either side, while rejecting the ground of bona fide requirement or personal use, came to the conclusion that the tenant made default in payment of rent, granted his eviction. 4. The tenant filed the Appeal i.e. R.A. No. 33 of 2014 against the order in R.C. wherein the landlord filed Cross-objections. The learned Additional Chief Judge, City Small Causes Court, Hyderabad reversed the judgment of trial Court and allowed the Appeal filed by the tenant and dismissed the cross-objections filed by the landlord. 5. Heard Sri Mohd. Adnan, learned counsel for the landlord and Sri R.A.Achuthanand, learned counsel for the tenant. 6. The learned Additional Chief Judge, City Small Causes Court, Hyderabad reversed the judgment of trial Court and allowed the Appeal filed by the tenant and dismissed the cross-objections filed by the landlord. 5. Heard Sri Mohd. Adnan, learned counsel for the landlord and Sri R.A.Achuthanand, learned counsel for the tenant. 6. Learned counsel for the landlord submits that the tenant defaulted in payments of rent for a period of 38 months from December, 2003 onwards till 2006 and that the suit schedule property is required for personal use of the landlord, as such, sought for eviction of the tenant from the suit schedule property. Whether it is mandatory to intimate the deposit of rents by tenant to the landlord and hand over challans, the learned counsel relied on the judgment of the Hon'ble Apex Court in N.D. Thandani (dead) by LRs. V. Arnavaz Rustom Printer, AIR 2004 SC 495 wherein it has been held as under: " A perusal of the above said Rule shows that the rule making authority has taken care to meticulously frame the rule and lay down a detailed procedure so as not to leave room for any controversy to arise between the landlord and the tenant as to the payment of the rent. The object of framing such rule is that merely because of litigation or a strained relationship existing between the landlord and the tenant, the landlord may not be harassed for realizing the rent thorough a challan as prescribed accompanying the deposit wherein all the particulars provided for by sub-rule (2) have to be given. The challan is in triplicate. One copy is to be delivered to the controller, after securing acknowledgment on another copy which is to be retained by the tenant. Such delivery of copy of the challan containing particulars specified in sub-rule (2) enables the Controller to maintain proper accounts and also to give notice of the deposit to the landlord who can thereafter withdraw the amount so deposited. A failure to comply with the provisions of the rule will result either in the deposit being lost in the jumble of hundreds of transactions which take place in the treasury or bank everyday or would result in failure by the Controller in maintaining the accounts and giving notice to the landlord. A failure to comply with the provisions of the rule will result either in the deposit being lost in the jumble of hundreds of transactions which take place in the treasury or bank everyday or would result in failure by the Controller in maintaining the accounts and giving notice to the landlord. Whatever be the situation, the landlord would be deprived of the opportunity of receiving the rent regularly in spite of the tenant having deposited the same. The whole purpose behind enacting the Rule will be frustrated because of the tenant's negligence. The case at hand projects a picture where in spite of the leaning of the law in favour of the tenant, if anyone deserves sympathy it is the landlord and not the tenant. As already noticed this is the third round of litigation complaining of default in payment of rent by the tenant. In the first round of litigation the rate of rent was alleged by the landlord to be Rs.160.00 per month which was denied by the tenant who pleaded the rate of rent to be Rs.80.00 per month only. In the litigation which ended in the apex court, the rate of rent was finally adjudged to have been Rs.160.00 per month and not Rs.80.00 as was pleaded by the tenant. Not only does the law itself require the tenant to pay or tender the rent month by month, the order of this Court mandated the tenant to clear all the arrears of rent within two months and thereafter to deposit the rent month by month and strictly observe compliance with the orders of the Supreme Court. The tenant did not even thereafter comply with the provisions of Rule 5. Huge amount of arrears accumulated, which were cleared in one go. Even other deposits were not regularly made. The tenant did not keep the landlords informed of the deposits either directly or by complying with the provisions of the Rule. The obligation of the tenant to pay or tender the rent cannot be said to have been discharged unless and until the landlords were posted with the information along with particulars enabling them to withdraw the amount. The legal notices served by the landlords were not responded to in the desired manner so as to put an end to their grievance. The legal notices served by the landlords were not responded to in the desired manner so as to put an end to their grievance. A claim for eviction founded on the simple ground of default in payment remained pending for years, obviously because of the reluctance and the procrastinating tactics of the tenant. If this is not willful default' then what else can it be? We are clearly of the opinion that the High Court has rightly held the tenant to be a chronic willful defaulter. The decree for eviction is fully justified." He has also relied on the judgment in Bachhaj Nahar v. Nilima Mandal,2009(1) R.C.R. (Civil) 855 wherein the Apex Court held in para 11 as under: " The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [ AIR 1963 SC 884 ]: " No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." But the said observations were made in the context of absence of an issue, and not absence of pleadings. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Shri Chandramaul - AIR 1966 SC 735 : "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." (emphasis supplied) The principle was reiterated by this Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College [ AIR 1987 SC 1242 ]: "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal." [emphasis supplied] 7. On the other hand, learned counsel appearing on behalf of the tenant would submit that the tenant has not committed any default and he is regular in paying the rents. Since the landlord refused to accept the rents, he paid the same as per the directions of the trial Court in R.C No.109 of 2006. It is submitted that the landlord has alternative premises adjoining the suit schedule property, hence, the Revision filed by him has to be dismissed. Learned counsel submits that the tenant has complied with the provisions of the Rent Control Act by depositing the rents in the Court and the landlord has not filed any rejoinder denying that the tenant has not complied with Rules 5 and 16 of the Act. Learned counsel submits that the tenant has complied with the provisions of the Rent Control Act by depositing the rents in the Court and the landlord has not filed any rejoinder denying that the tenant has not complied with Rules 5 and 16 of the Act. Ex.R36 shows that rents were paid on 6/12/2008 by the end of December 2008. It is argued that so far as willful default is concerned, if the rents were paid before the institution of eviction petition, there is no cause of action to maintain a ground of willful default in payment of rent as held by the Hon'ble Apex Court in K.A. Ramesh v. Smt. Susheela Bai, AIR 1998 SC 1395 . Learned counsel tries to distinguish the judgment relied on by the learned counsel for the landlord in N.D. Thandani's case (supra) stating that, that was a case 'where an eviction petition was filed by the landlord claiming default in nonpayment of rent and non-deposit of challan wherein the cheque petition filed by the landlord was returned. In that context, the Supreme Court has observed that non-compliance of Rules 5 and 16 amounts to willful default'. It is further submitted that coming to the judgment in Bachhaj Nahar's case (supra), the Apex Court has observed that even if no issues are framed but the parties went to trial knowing the rival case and led evidence not only in support of the contention but in refutation the absence of pleading will not be fatal'. In the present case, the landlord has not adduced evidence either directly or remotely about the irregular payment of rents. Moreover there is no rejoinder filed by him to substantiate the contention of irregular payment of rent, in such an event, how the ratio laid down can be canvassed in the present case is ununderstandable. Another contention raised by the learned counsel is that, the landlord did not accept / refuse the rents tendered by the tenant. The tenant has filed RC No. 109 of 2006 on the file of the II Additional Rent Controller. The landlord was the party to the dispute and he knew about the deposits made by the tenant and he did not raise his little finger to plead. According to the learned counsel, deficiency of pleadings cannot be raised before the High Court for the first time. The landlord was the party to the dispute and he knew about the deposits made by the tenant and he did not raise his little finger to plead. According to the learned counsel, deficiency of pleadings cannot be raised before the High Court for the first time. Under Sec. 22 of the Act, the High Court cannot reappraise the evidence in a Revision Petition. Learned counsel relied on the judgment in Vinukonda Venkata Ramana v. Mootha Venkateswara Rao, 2001(6) ALD 27 (FB) wherein the erstwhile High Court of Andhra Pradesh held as under: " We are therefore, of the opinion that having regard to the aforementioned decisions of the Apex Court, the law laid down by this Court in P.N. Rao's case cannot be said to be good law in the light of the discussion made herein above. It is also required to take into consideration the effect of any given situation that the landlord may waive his right to maintain the suit for eviction not only by reason of unequivocal acceptance of rent but also by reason of his other conduct." He submits that in the above judgment it was made clear that if the tenant tenders the entire rent of the premises on the date of filing petition, it is deemed that there is no default in payment of rent. Applying the said ratio, it is clear that the tenant was never in default of rents to the landlord as rightly appreciated by the lower appellate Court. Placing reliance on Hindustan Petroleum Corporation Ltd. V. Dilbahar Singh, wherein the Hon'ble Supreme Court held as under: " ... Ordinarily, appellate jurisdiction involves re-hearing on facts and law but such jurisdiction may be limited by the statute itself that provides for appellate jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In other words, revision is not continuation of suit or of original proceedings." the learned counsel submits that the Court cannot re-appreciate the evidence. 8. In this case, it is to be seen that there is no dispute with regard to jural relationship between the parties and also with regard to quantum of rent to be paid by the tenant to the landlord. 8.1. 8. In this case, it is to be seen that there is no dispute with regard to jural relationship between the parties and also with regard to quantum of rent to be paid by the tenant to the landlord. 8.1. It is alleged that when the landlord failed to receive the rents, the tenant filed RC No.109 of 2006 on the file of II Additional Rent Controller for deposit of rent and the same was allowed on 1/12/2008 wherein the tenant was permitted to deposit Rs.800.00 per month from January, 2005 onwards till December, 2008 and also directed to pay the said amount of rent every month on or before 10th. A perusal of the said judgment goes to show that the landlord has taken specific plea that the tenant defaulted in payment of rents from December, 2004 onwards. The trial Court rejected the said plea of the landlord and basing on Exs.P1 to P27, which are Money Orders sent to the landlord, believed the version of the tenant that he has not committed any default in payment of rents, but the trial Court failed to appreciate the fact that there is no proof submitted by the tenant to that effect. When it is the specific plea of the landlord that the tenant committed default in payment of rent from December, 2004 to December, 2005, the trial Court ought to have disbelieved the evidence of P.W.1 therein that the tenant defaulted in payment of rents for the aforesaid period. Without addressing the said issue, simply permitted the tenant to deposit rent at Rs.800.00 per month from January, 2005. 8.2 That apart, since it is the specific contention of the landlord in R.C.No.213 of 2009 that the tenant failed to pay the rents even as per the directions of the trial Court in R.C.No.109 of 2006, it is the bounden duty of the tenant to show that he paid rents from December, 2004 to December, 2005 and also the rents regularly from January, 2005 onwards. However, the tenant failed to discharge his burden of payment of rents from December, 2004 to January, 2005, as such, it is clear that the tenant committed default in payment of rent. Even according to the tenant, the rent was paid once in two to three months under Ex.R39 which means, the payment of rent was irregular. 9. However, the tenant failed to discharge his burden of payment of rents from December, 2004 to January, 2005, as such, it is clear that the tenant committed default in payment of rent. Even according to the tenant, the rent was paid once in two to three months under Ex.R39 which means, the payment of rent was irregular. 9. The finding of the appellate Court that since there is no appeal or revision against the orders in RC No.109 of 2006 by the landlord, wherein the tenant was directed to deposit rents from January, 2005 onwards, the said order has attained finality, cannot be accepted for the following reasons: i) the tenant failed to prove that he paid rents from December, 2003 to December, 2004; ii) the tenant failed to prove that he paid rents as per the directions of the trial Court in RC No.109 of 2006 every month without fail. iii) the tenant failed to prove that he has followed the procedure laid down under Rule 5 and 16 of the Act. In the absence of any proof of regular payment of rents by the tenant and on the ground of willful default in payment of rents on his part, the landlord is entitled for eviction of the tenant from the petition schedule property. 10. As far as the request of the personal bona fide requirement is concerned, both the trial Court and the appellate Court found that the landlord has two more non-residential premises adjoining the petition schedule property. 11. The cross-examination of landlord as P.W.1 in R.C.No.213 of 2009 dtd. 28/1/2011 is as follows: "I do not now the contents filed in my chief affidavit. I do not know the contents of my petition. I do not know the contents of counter filed by the respondent. I do not know the municipal number of the PSP as I am illiterate. I do not know whether the respondent filed counter in this case. The respondent filed Petition U/s 8(5) of the RC Act against me and I filed counter in the said petition in RC 109/06 and containing signature in my counter. The respondent filed OS.247/07 on the file of 14th J.C.J.Hyd, against me and I filed chief affidavit in this case. I do not know about the order passed by II ARC, Hyd, RC No.109/06, dt.1/12/2008" 12. The respondent filed OS.247/07 on the file of 14th J.C.J.Hyd, against me and I filed chief affidavit in this case. I do not know about the order passed by II ARC, Hyd, RC No.109/06, dt.1/12/2008" 12. A perusal of the cross-examination of the landlord goes to show that he does not know anything about the contents either in the affidavit or in the counter filed by him since he is an illiterate. In the entire crossexamination, he pleaded ignorance about the payment of rents by the tenant, about the orders passed by the trial Court in RC No.109 of 2006, filing of counter, measurements of petition schedule property, refusal of Money Orders and also about the municipal number of the petition schedule property. 13. Due to ignorance and illiteracy of the landlord, he cannot be deprived of his legitimate right of using the petition schedule property for his bona fide requirement. As already observed supra, the landlord cannot be able to say what was written in the affidavit, counter affidavit filed by him and other proceedings in the case on hand. 14. In his cross-examination dtd. 8/6/2011, the landlord stated that he kept vacant mulgies used by him for residential purpose. Therefore, it is clear that the landlord was using the other two mulgies for his residential occupation and the petition schedule mulgi is required for doing business, which is a commercial purpose. The appellate Court as well as the trial Court, in spite of deposing that he is an illiterate, misconstrued his evidence and found that there is no pleading with regard to his occupation in other two mulgies for non-residential purpose. Nonmentioning of occupation of two mulgies adjacent to the petition schedule property by the landlord in the pleadings is not fatal to the case of the landlord. Both the trial Court as well as the appellate Court ought not to have dismissed the plea of bona fide personal requirement on this ground alone. Instead, both the Courts below ought to have taken into consideration the conduct of the tenant in defaulting payment of rents regularly, failed to prove that he has advanced Rs.10,000.00 to the landlord, failed to follow the due procedure in depositing the rents in the trial Court as per the directions in RC No.109 of 2006, which is filed by him, taking advantage of illiteracy of the landlord. Both the Courts below misconstrued the evidence on record and rejected the prayer of the landlord for eviction of the appellant. 15. In view of above settled legal position in Bhagwati Prasad's case and Ram Sarup Gupta (dead) case, non-pleading of using of two mulgies adjacent to petition schedule property in RC No.213 of 2009 does not amount to suppression of material fact, as found by the trial Court. The appellate Court also failed to appreciate the said finding in correct perspective and committed an error. Having knowledge that the landlord is an illiterate and does not know the contents of affidavit and counter affidavits filed by him, by relying on the judgment in the case of Mohd.Abdul Rahman and others v. B.Manorama, 2008 ALD 586 the trial Court misconstrued itself in finding that the plea of personal bona fide requirement by the landlord amounts to suppression of material fact. 16. In Deep Chandra Juneja v. Lajwanthi Kathuria (dead) through L.Rs), 2008(4) ALD 130 (SC) the Hon'ble Supreme Court held that the landlord is the best judge of his requirement and the Courts have no concern to dictate the landlord as to how and in what manner he should live and the bona fide personal need of a landlord is a question of fact and should not be normally interfered with. 17. In view of above facts and circumstances, the judgment in R.A.No.33 of 2014 dtd. 18/8/2015 is set aside. Since the tenant is in occupation of the petition subject property from 2001, he is directed to vacate the petition schedule property within a period of three months from today. Meanwhile, the tenant is directed to pay rent at Rs.10,000.00 per month regularly till vacating the property. Failing which, the landlord is at liberty to take steps in accordance with law. 18. Accordingly, the Civil Revision Petition is allowed. No costs. 19. Consequently, miscellaneous Applications, if any, pending shall stand closed.