Andhra HC (Pre-Telangana)
Mrs. Ahmad Hussain And Ors. vs Ghousia Begum And Ors. on 1 September, 1997
Equivalent citations: 1998(3)ALD417
ORDER
1. As the parties, subject-matter and the issues involved in these two revisions arc one and the same, these two revisions are being disposed of by this common order.
2. C.R.P.No.119 of 1997 arises out of R.A.No.241 of 1994 in R.C.No.94 of 1984. C.R.P.No.121 of 1997 arises out of R.A.No.240 of 1994 in R.C.No,710 of 1988. During the pendency of the appeals RANos.240 of 1994 and 241 of 1994, the first respondent-tenant died and his legal representatives were impleaded as Respondents 1 to 5 in the Rent Appeals before the lower appellate Court. For the sake of convenience, the parties are referred to as Landlady and tenant.
3. The landlady filed R.C.No.94 of 1984 on the file of the I Additional Rent Controller, Hyderabad seeking eviction of the tenant on the ground of wilful default in payment of rents for the months of July, 1932 to February, 1984 and also on the ground of subletting the suit mulgies to RespondentNos.2 to 4 in R.C.No.94 of 1984. During the pendency of R.C.No.94 of 1984, as the landlady required the suit premises for establishing a general stores, filed R.C.No.710 of 1988 against the tenant on the ground of bona fide personal requirement.
4. The respondent-tenant in the counter filed by him, has denied the allegations of wilful default. It is stated that he deposited Rs.360/- along with the counter in the year 1990 before the trial Court. On the question of subletting the suit premises, the tenant denied the same and pleaded that as he was suffering from paralysis, he could not manage the hotel business on his own and therefore, he permitted his brother who was examined as RW1 in R.C.No.94 of 1984 to look after the hotel business. The tenant also contended in the counter that in terms of Ex.R2, i.e., the agreement entered into between the parties some-where in the year 1970, the landlady had permitted the tenant to continue in the premises for 12 years on a monthly rent of Rs.80/- and after that period, if the landlady seeks to evict the tenant, she shall pay the monies spent by the tenant for the purpose of renovating the suit premises. The tenant contended that in the absence of the landlady repaying the monies spent by him, the landlady is not entitled to seek his eviction from the suit premises.
5. Insofar as R.C.No.710 of 1988 is concerned, the tenant denied the liability of default during the pendency of the rent control proceedings and further contended that the requirement for the eldest son of the landlady is not genuine and therefore, pleaded the trial Court to dismiss the eviction petition.
6. In support of her contentions in R.C.No.94 of 1984, the landlady got examined PWs.1 and 2 on her behalf and got marked Exs.PI to P9. On behalf of the respondent-tenant RW1 was examined and Exs.R1 to R6 were marked.
7. As far as R.C.No.710 of 1988 is concerned, on behalf of the petitioner-landlady PWs.1 and 2 were examined and Ex.Pl was marked. On behalf of the respondent-tenant no witness was examined, but however, Exs.Rl to R3 were got marked.
8. On a consideration of the oral and documentary evidence adduced by both parties, the I Additional Rent Controller dismissed both the R.Cs., holding that the petitioner is not entitled to seek eviction of the tenant. Assailing the said finding, the landlady has preferred rent appeals in R.A.No.240 of 1994 against R.C.No.710 of 1988 and R.A.No.241 of 1994 against R.C.No.94 of 1984, before the Additional Chief Judge, City Small Causes Court, Hyderabad. On a consideration of the oral and documentary evidence in the light of the submissions, the lower appellate Court allowed both the Rent Appeals with costs, by directing the tenants to vacate the petition-schedule building within one month from the date of that order. Assailing the judgment and decree of the lower appellate Court in R.A.Nos.240 and 241 of 1994, the petitioners herein who are the legal heirs of the deceased respondent-tenant have preferred these two revisions as indicated above.
9. I have heard Sri K.G. Sastry, learned Counsel for the petitioner-tenants and Sri Basith Ali Yawar, Counsel for the respondent-landlady.
10. The principal contention of Sri K.G. Sastry, learned Counsel appearing on behalf of the petitioners-tenants herein is that the parties arc bound by the conditions stipulated in Ex.R2 which is the original agreement entered into between the parties way back in the year 1970. According to the Counsel, as long as the landlady failed to pay the amount of Rs. 16,0007- and odd, as admitted by her through PW1 (who is her husband), to the tenant, she cannot seek the eviction of the tenant. Counsel stated that the suit premises were renovated by the tenant by investing huge monies. According to clause 7 of the agreement Ex.R2, the tenant is entitled to continue in the premises for a period of 12 years on a rent of Rs.80/- and after the expiry of 12 years period if the landlady repays the amount which is spent by the tenant for repairing purposes, the tenant shall vacate the premises and hand over the vacant possession to the landlady. Otherwise, the tenant is entitled to continue as long as the said amounts are not repaid. Learned Counsel emphasising on clause 7 of Ex.R2 has contended that even in the reply notice or during the pendency of the proceedings before the Court below, the landlady lias not come forward to say that she was willing to pay the said amount nor has she deposited the said amount into Court and as such the rent control proceedings have rightly been dismissed by the rent controller. Learned Counsel contended that when the terms and conditions stipulated in Ex.R2 are not complied with, it is not open to the landlord to seek eviction. In this connection, Counsel has drawn my attention to the provisions under Section 10(3)(d) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. In support of his contentions, learned Counsel has also referred to the following decisions reported in Modem Hotel, Gudur, Rep. by M.N. Narayanan v. K. Radhakrishnaiah, , K.Narasimha Rao v. T.N. Nasimuddin, 1996 (2) ALD page 37 (SN), Vinod Kumar Arora v. Smt. Surjit Kaur, and in S. Raja Chetty and another v. Jagannathadas Govindas and others, AIR 1950 Mad. 285. Finally, Counsel contended that the judgment and decree passed in two Rent Appeals by the lower appellate Court are not sustainable in this background and pleaded to set aside the same.
11. Learned Counsel for the respondent-landlady however made efforts to sustain the findings of the lower appellate Court by contending that the findings of the lower appellate Court on the question of wilful default, sub-lease and bona fide requirement are based on the evidence let in by the landlady and when such findings are based on facts, the impugned orders do not require any interference. Counsel stated merely because the landlady has failed to make payments which were due to the tenant under Ex.R2, that itself cannot be a ground to reject the case of the landlady seeking eviction of the tenant on the ground of default. Learned Counsel has taken me to clause 8 of Ex.R2 which says that the landlady is entitled to take recourse to such proceedings in case of violation of any terms and conditions of the agreement either by the tenants or their legal heirs. According to the learned Counsel, for the first 12 years of the tenancy, there was no problem. The landlady has filed the rent control proceedings only in the year 1984 that too when the tenant committed default. The landlady on coming to know that the tenant has sub-let the premises has filed rent control proceedings in terms of clause 8 of Ex.R2 in the year 1984 only. Counsel stated that R.C.No.710 of 198S was filed only on account of the bona fide requirement i.e., for setting up a kirana shop to her eldest son who was unemployed at that time. The other ground urged in R.C.No.710 of 1988 is the wilful default committed by the tenant during the pendency of the R.C.No.94 of 1984. Counsel, therefore, stated that in view of the categorical findings of the lower appellate Court and in view of clause 8 of Ex.R2, it is always open to the landlady to seek eviction of the tenant without regard to payment of amounts due to the tenant as admitted by PW1 on behalf of the landlady in his examination in the Court. Ultimately, Counsel pleaded that no interference is called for in the well-considered impugned order.
12. On the basis of these submissions, this Court is called upon to examine whether the landlady is entitled to seek eviction of the tenant in terms of the clauses incorporated in Ex.R2 without repaying the monies which had been spent by the tenant for repairing the suit premises ?
13. A plain reading of the clauses contained in Ex.R2 does give an impression to this Court that for the first 12 years, the landlady has to receive only Rs.80/- towards rent as the suit premises has been repaired by the tenant by spending certain monies. After completion of 12 years, the landlady is entitled to seek delivery of vacant possession of the premises by returning the monies spent by the tenant. Clause 8 says that when there is any violation of the terms and conditions of the agreement under Ex.R2, it is open to the landlady to seek recourse to such proceedings in a competent Court of law seeking appropriate legal remedy i.e., to file eviction proceedings against the tenant.
14. In my considered view, clause 7 cannot be read in isolation. Clauses 7 and 8 are to be read conjointly as they are inter-related. If clauses 7 and 8 are to be read together, what emanates is that for the first 12 years, the landlady has to allow the tenant to run his business on a monthly tent of Rs.80/-. Even if the tenant commits default during that period, it cannot be said that the landlady is not entitled to evict him. The same is clearly manifest from clause 8. If the tenant .commits default either by sub-letting the suit premises or by not paying the agreed rent in stipulated time, the landlady is entitled to seek his eviction. The only requirement that has to be complied by the landlady is that she has to repay the amount spent by the tenant towards repairing the suit premises before she seeks eviction of the tenant It is not necessary for the landlady to pay the amount spent by the tenant and then only seek eviction of the tenant. She can straightaway file eviction proceedings against the tenant even without paying the amount spent by the tenant.
15. No doubt, the landlady lias not come forward to repay the amount spent by the tenant towards repairing the suit premises. The trial Court held that the landlady has failed to comply with the condition stipulated in Ex.R2. i.e., the landlady has not repaid the amount spent by the tenant towards repairing the suit premises and on that ground alone the trial Court has dismissed the eviction proceedings filed by the landlady, which dismissal in my view is improper.
16. Coming to the finding of the lower appellate Court, the lower appellate Court has rejected Ex.R2 by holding that Ex.R2 is not proved. However, it shall be remembered that the very foundation laid by both parties in support of their contentions is only on Ex.R2. The existence of Ex.R2 has been admitted by PW1 who is the husband of the landlady. When PW1 admits as to the existence of Ex.R2 which was produced by the tenant, there is no reason for the lower appellate Court to hold that Ex.R2 is not proved and the lower appellate Court ought not to have held that Ex.R2 is not proved.
17. A combined reading of clauses 7 and 8 makes it abundantly clear that in case of default being committed by the tenant either in not paying the agreed rent within the stipulated time or if he sub-lets the suit premises, the landlady is entitled to file eviction proceedings against him. However, it is not mandatory for the landlady to repay the admitted amount, spent by the tenant, to him before initiating eviction proceedings. If in the eviction proceedings, the Court satisfies itself that the tenant had committed default in payment of rents and had sub-let the suit premises, and the bona fide requirement of the suit premises by the landlady is genuine, the trial Court could order eviction of the tenant on these grounds and direct the landlady to repay the amounts due to the tenant within a specified period.
18. While examining the main relief sought in the rent control proceedings, what has to be seen is whether the landlady has been able to sustain the charges, viz., that the tenant has committed default in payment of rents for the months of July, 1982 to February, 1984, that the tenant has sub-let the suit premises to R3 in R.C.No.94 of 1984 and whether the bona fide requirement of the suit premises by the landlady is genuine.
19. A careful scrutiny of the evidence adduced on behalf of both the parties gives an impression to this Court to hold that the tenant has committed default in payment of rents to an extent of Rs.340/- which amount the tenant has chosen to pay only in the year 1990 though the rent control proceedings were initiated in the year 1984.
20. Coming to the allegation that the tenant has sub-let the suit premises, the evidence of PWs.1 and 2 coupled with Exs.P3, P5 and P9 in R.C.No.94 of 1984, it can safely be held that the premises was in fact sub-let. Ex.P3 is the domestic electricity card issued in favour of the third respondent in R.C.No.94 of 1984. Learned Counsel for the landlady contended that Ex.P3 is sufficient to indicate that the business in the suit premises is being run by the third respondent in whose name the electricity card is obtained. Ex.P5 is a photograph taken while R3 was sitting on the counter receiving monies and managing the business. The name-board of the hotel also indicates that R3 is the owner of the hotel. Ex.P9 which is the invitation card printed on the occasion of opening the business which is in the names of different persons. Counsel stated, all these factors indicate conclusively that the suit premises has in fact been sub-let by the tenant. Counsel therefore stated that the lower appellate Court is justified in accepting the version of the landlady in this regard. I find much force in these contentions. A scrutiny of the evidence coupled with Exs.P3, P5 and P9 lead to the inescapable conclusion that the tenant has sub-let the suit premises to R3 and R3 is running the hotel in his own name and style. Nothing is placed before the Courts below by the tenant to rebut the allegation that he has sub-let the premises to R3. Therefore, the tenant by sub-letting the suit premises has committed default.
21. Insofar as the bow fide requirement of the suit premises by the landlady is concerned, her eldest son has been examined as PW2 in R.C.No.710 of 1988. It has come in the evidence of PW2 that he is an unemployee, he passed S.S.C. and he intends to set up a kirana shop in the suit premises. Though the said witness has been cross-examined at length, nothing is elicited from him to discredit his testimony. Therefore, there is no reason to disbelieve the version of the landlady that her eldest son is unemployed and she intended to rehabilitate him by setting a kirana shop for him" in the suit premises.
22. Though the learned Counsel for the petitioners-tenants herein has cited the decisions (1) to (4) supra, in support of his contentions, though the ratio laid down therein is undisputable, however, they are not applicable to the facts and circumstances of this case as the tenant has committed default on three counts as narrated above.
23. In view of the above discussion and having regard to the facts and circumstances of the case, I am inclined to hold that the landlady has succeeded in her efforts to establish that the tenant has committed wilful default in payment of rents, he has sub-let the suit premises to the third respondent in R.C.No.94 of 1984 and the bona fide requirement of the suit premises by the landlady is genuine. In this view of the matter, the tenants are liable to be evicted from the suit premises.
24. The tenant had been in occupation of the suit premises from the year 1970. During the pendency of the appeals, the tenant died and his L.Rs. are brought on record and they are contesting the matter. Learned Counsel for the petitioners-tenants pleaded that in the facts and circumstances of the case a period of three years may be granted to the tenants to vacate the premises. I am afraid, such a plea of the tenants cannot be accepted. However, as a special case, a period of five months which looks time reasonable could be granted to the tenants to deliver vacant possession to the landlady. Accordingly, the petitioners-tenants herein shall hand over vacant possession of the suit premises to the landlady on or before 31-1-1998 without creating any problems. It is further ordered that the tenants shall pay the agreed rent within the specified date for these five months and if they commit any default, it is open to the landlady to seek their eviction by filing appropriate proceedings in the appropriate forum.
25. The landlady shall deposit a sum of Rs.16,213-81 ps. to the credit of R.C.No.94 of 1984 before the I Additional Rent Controller, Hyderabad within a period of one month from today. On such deposit, it shall be open to the petitioners-tenants who are authorised by other L.Rs, of the deceased-tenant to withdraw the same without furnishing any security. In case the landlady fails to deposit the said amount as indicated above, she is not entitled for the relief as sought by her in R.C.Nos.94 of 1984 and R.C.No.710 of 1988,
26. The common judgment passed by the lower appellate Court in R.A.Nos.240 of 1994 and 241 of 1994 are confirmed.
27. In the result, these two revisions are dismissed, but in the circumstances of the case, there shall be no order as to costs.