Andhra HC (Pre-Telangana)
K. Babu Rao And Anr. vs Smt Yadamma on 17 October, 2001
Equivalent citations: 2001(6)ALT562
ORDER T. Meena Kumari, J.
1. The present civil revision petition has been filed by the petitioners-landlords aggrieved by the judgment of Chief Judge, City Small Causes Court, Hyderabad in R.A.No.334 of 1997 dated 28-2-2000.
2. The brief facts of the case are as follows:
The petitioners herein are the owners of the premises bearing Door No.8-2-282 situated at Kumarguda, Secunderabad. They have purchased the above premises by virtue of a registered sale deed dated 22-4-1994. The respondent herein is the tenant in respect of the said premises on a monthly rent of Rs.50/-. The petitioners herein were residing in a rented premises bearing No.8-2-332 situated at Kumarguda, Secunderabad by paying monthly rent at Rs.1000/-. The 1st petitioner has two children and the 2nd petitioner is unmarried sister of the 1st petitioner and they are in requirement of the suit premises for their own occupation and that the respondent-tenant has not paid the rents from May, 1994 to November, 1995 amounting to Rs.900/-.
3. The respondent-tenant resisted the petition by way of filing counter denying knowledge of purchase of the suit premises by the petitioners herein. It is stated that she filed a suit in O.S.271 of 1993 on the file of the I Assistant Judge, City Civil Court, Secunderabad for perpetual injunction to restrain the petitioners' vendor from interfering with her peaceful possession and enjoyment of the suit premises and the vendor of the petitioners had also filed a suit in O.S.No.585 of 1993 for recovery of possession of the suit premises. It is also further stated by the respondent that she had received a telegram on 7-11-1995 sent in the name of one Asutosh Jaiswal and a legal notice dated 9-11-1995 sent on behalf of the petitioners and that she has sent a reply dated 20-12-1995 asking the petitioners counsel to show the title deeds in respect of the suit premises and to furnish the details of the petitioners bank account so as to enable her to deposit the rents, but there was no response from him. The respondent has denied the fact that the petitioners are in bonafide requirement of the suit premises and the suit premises is not suitable for the occupation of the petitioners. It is also further stated in the counter that the respondent has paid the rents to Asutosh Jaiswal or his father one Arun Jaiswal upto October, 1995 and after receiving the telegram and notice in November, 1995 she has stopped paying the rents to the previous landlords and has issued the said reply notice. Thereafter the respondent had paid an amount of Rs.250/- to the petitioners counsel on 29-3-1996 and had paid the rent of April, 1996 on 12-4-1996 and she is not a wilful defaulter.
4. In R.C.No.322 of 1995, PW1 and PW2 were examined on behalf of the petitioners and Exs P1 to P14 were marked. RW1 was examined on behalf of the respondent and Exs R1 to R7 were marked.
5. Ex.P1 is a copy of the notice dated 11-8-1995 issued to the respondent by the petitioners counsel. Ex.P2 is a copy of the reply notice issued to the petitioners counsel by the respondent's counsel.Ex.P3 is the office copy of another notice dated 9-11-1995 issued to the respondent by the petitioners' counsel. Ex.P4 is a postal acknowledgment. Ex.P5 is a sale deed dated 21-4-1994. Ex.P6 is a money order coupon. Ex.P7 is a receipt issued by the first Petitioner showing the payment of rent for August, 1996. Ex.P8 is a receipt showing the payment of rent for the month of July, 1996. Ex.P9 is a receipt showing the payment of Rs.50/- which was adjusted towards arrears of rent subject to verification. Ex.P10 is an electricity bill issued by A.P.S.E.B. in the name of one Nalla Nagulla Laxmamma.Ex.P11 is a statement said to have been made by Nalla Nagulla Laxmma stating that the petitioner No.1 has been residing in her house for the last two years.Ex.P12 is a deed of rectification dated 28-4-1997 in respect of Ex.P5. Ex.P13 is the plan accompanying Ex.P12. and Ex.P14 is the extract from the assessment book for the year 1996-97.
6. Ex.R1 is the office copy of the notice dated 19-2-1996 issued to the petitioners by the respondent's counsel. Ex.R2 is a telegraphic notice dated 7-11-1995 issued to the respondent by the petitioners vendor. Ex.R3 is served copy of the plaint in O.S.No.585 of 1993 filed by the petitioners vendor before the I Assistant Judge, City Civil Court, Secunderabad against the respondent. Ex.R4 is the office copy of the notice dated 20-12-1995 issued to the petitioners counsel by the respondent's counsel. Ex.R5 is the property tax bill cum challan issued by the Municipal Corporation, Hyderabad. Dated 5-7-1996 in the name of the petitioners vendor in respect of the petition schedule premises.Ex.R6 is a bill issued by the A.P.S.E.B. in the name of the petitioners' vendor. Ex.R7 is the office copy of the notice dated 25.2.1996 issued to the respondent's counsel by the petitioners counsel.
7. The learned counsel for the petitioners has argued that the trial court after going through the evidence of RW1 wherein he has admitted thathis family comprises of 12 members and he is residing in the petition schedule premises has come to the conclusion that the suit premises can accommodate family members of the petitioners consistingof wife of the petitioner No.1, his two children and petitioner No.2 and stated that the petitioners are in bonafide requirement of the premises. Insofar as the willful default is concerned, the court below has observed that there is no willful default on behalf of the respondent. It is further argued by the learned counsel for the petitioners that Ex.R2 is the Telegraphic notice dated 7-11-1995 through which it has been informed to the respondent about the attornment of tenancy in favour of the petitioners and that it has been observed by the court below that though it is mentioned in Ex.R2 that an earlier notice had been issued, there was no evidence to that effect. It is further observed by the court below that the respondent was in the dark about the change of ownership of the petition schedule property up to November, 1995.
8. The learned counsel for the respondent contended that in the counter filed by the respondent, it has been stated that as the petitioners have neither shown their title deeds nor they have given bank account number to deposit therents irrespectiveof the issue of reply notice dated 20-12-1995, the rentals could not be paid and that the learned Rent Controller after going through the evidence adduced on behalf of both the sides has come to the conclusion that there is no wilful default committed by the respondent tenant. But, however, the Rent Controller has held that there is bonafide requirement of the premises by the petitioners. Aggrieved by the finding of the court below with regard to wilful default the petitioners have preferred an appeal in R.A.334 of 1997.
9. The learned counsel for the petitioners has argued that instead of deciding the issue on merits regarding wilful default of rent, the lower appellate court has dismissed the appeal filed by the petitioners without going into the merits of the case stating that the proper remedy for the petitioners is to implead themselves as parties in O.S.585 of 1993 filed by the vendors of the premises and ask for appropriate relief in the said court. The learned counsel for the petitioners has further argued that the appellate court has observed that the Rent Controller has no jurisdiction to entertain the petition. Against the same, the present civil revision petition has been filed.
10. The learned counsel has further argued that the finding of the Rent Controller has become final with regard to bonafide requirement of premises by the petitioners, in view of the fact that the same has not been challenged by the respondent by way of an appeal.
11. The learned counsel for the petitioners has filed a counter copy filed by the respondent herein before the court below and has stated that in the counter it is stated that a notice has been issued on 20-12-1995 to the petitioners to specify the details of bank account but the petitioners did not show the title deeds nor has given the details of bank account to deposit the amounts. The contention of the respondent in the counter shows that he has requested the petitioners, to specify the details of bank account to deposit the rents and the petitioners have failed to deposit the bank account. The learned counsel for the petitioners further argued that as per section 8(4) of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act') if the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission and continue to remit any rent which may subsequently become due in respect of the building in the same manner until the landlord signifies by a written notice to the tenant his willingness to accept the rent or specifies a bank in which the rent shall be deposited in accordance with the provisions of sub section(2) and as per Section 8(5) of the Act if the landlord refuses to receive the rent remitted by money order under sub section (4), the tenant may deposit the rent before such authority and in such a manner as may be prescribed and continue to deposit any rent which may subsequently become due in respect of the building, before the same authority and in the same manner and the amount deposited may, subject to such conditions as maybe prescribed, be withdrawn by the person held by the Controller, to be entitled to the amount on application made by such person to the Controller in that behalf.
12. Therefore, the counsel on behalf of the petitioners has argued that both the courts below have not gone into the question whether the tenant has committed any default more so wilful default and also whether the tenant has complied with the provisions of the law as required under section 8 of the Act.
13. In the counter filed by the respondent before the court below it has been stated that the respondent sent a reply notice to the petitioners to specify the bank account. But it is not stated in the counter whether he has taken further action by sending the money order or he has taken any action on refusal of the money order and whether he has taken any action to deposit the rents before the authority as required under section 8(5) of the Act. It is clear from the judgments of both the courts below that both the courts have utterly failed to examine the above point, whether the respondent-tenant has complied with the requirements as required under section 8(4) and 8(5) of the Act. The Rent Controller held that there is a bonafide requirement of the premises but in so far as the default in payment of rents is concerned without examining the fact that whether the tenant has complied with the other provision of law i.e., Section 8(5) of the Act has decided the matter on different issue holding that the Rent Controller has no jurisdiction to entertain the petition. It is further argued by the learned counsel for the petitioners that the findings of the authorities are unwarranted and uncalled for.
14. It has to be seen whether the authority without going into the merits of the case has wrongly come to the conclusion that the appeal is not maintainable and dismissed the appeal stating that the landlords have to implead themselves as parties to O.S.585 of 1993. To substantiate the fact that there was no wilful default committed by the respondent in payment of rent, the respondent has not placed any material before this court and to substantiate the contention that she has complied with the provisions of section 8(5) of the Act having chosen to issue a notice to specify the bank account.On the other hand, the contention of the learned counsel for the petitioners is that the finding of the Rent Controller that there is bonafide requirement has become final in view of the fact that the respondent has not preferred any appeal and that the finding of the appellate authority that the petition is not maintainable is unwarranted and uncalled for in view of the fact that respondent has utterly failed to comply with the provisions under section 8(4) and 8(5) of the Act.
15. In view of the facts and circumstances of the case, it has to be held that both the courts have committed error apparent on the face of the record with regard to wilful default and the finding of the court below that there is bonafide requirement is confirmed. It has to be held that the respondent has committed wilful default as the respondent has failed to comply the provisions of Section 8(4) and 8(5) of 'the Act'. Accordingly, the finding of the lower appellate authority is set aside and the civil revision petition is allowed. No costs.