Andhra HC (Pre-Telangana)
Sama Venkata Subba Rao, Managing ... vs Pillarisetti Venkata Venugopala ... on 13 June, 1995
Equivalent citations: 1995(2)ALT651, (1995) 2 LS 70, 1995 A I H C 5936, (1995) 2 ANDH LT 651, (1995) 2 APLJ 261
ORDER S. Dasaratharama Reddy, J.
1. As both the revision petitions involve common point, they are disposed of by a common judgment.
CR.P.No. 3129 of 1991
2. The petitioner is a tenant of non-residential premises bearing Door No. 7/533 at Robertsonpet, Machilipatnam, belonging to the respondent. The respondent filed R.C.C.No.19 of 1986 on the file of Rent Controller, Machilipatnam, seeking eviction of the petitioner on the grounds of (1) default in payment of rents, (2) committing acts of waste and (3) for bonafide requirement. According to the averments in the eviction petition, the rent for premises was originally Rs. 600/-. As the landlord wanted the premises to start his own business, the tenant promised to vacate the premises by the end of June, 1986 and pay in the meantime enhanced rent of Rs. 1,200/- per month. The landlord did not agree in the first instance but ultimately agreed to it. On 14-5-1986, the tenant sent Rs. 1,100/- towards rent due for this premises and another premises No. 7/532, which is the subject matter of C.R.P.No. 3130/91. It was appropriated by tine landlord towards partpayment of Rs. 600/- towards premises No. 7/533 and Rs. 500/- towards premises.No. 7/532, and sent the receipt. Later on, correspondence ensued wherein the landlord was taking the stand that stipulated rent is Rs. 1,200/- while as per tenant it is Rs. 600/-. The tenant has been paying Rs. 1,100/- for both the premises, even after June, 1986, and the landlord has been appropriating it towards part-payment of the rent for the two premises. In the counter, the tenant denies the allegation that he promised to pay enhanced rent of Rs. 1,200/- and says that the landlord has illegally appropriated the rent paid towards part-payment and that he is not a defaulter. He also denied acts of waste and bona fide requirement of the landlord. The Rent Controller held that the rent is only Rs. 600/ - and that there is no default on the part of the tenant. However, he allowed the eviction petition on the ground that the tenant has committed acts of waste and also that the landlord wants the premises for his own requirement. On appeal, the appellate authority also found that there is no default on the part of the tenant in payment of rent and while upholding the order of the Rent Controller regarding bona fide requirement, reversed the finding of the Rent Controller on commission of acts of waste. Ultimately, the order of eviction was confirmed. Against this, the tenant has preferred this revision petition.
3. Sri D. Sudhakara Rao, learned counsel for the petitioner, raised the following contentions:
(1) As even according to the eviction petition, the rent is more than Rs. 1,000/- per month, the A.P. Buildings (Lease, Rent and Eviction ) Control Act 1960 (for short 'the Act') has no application and eviction petition is not maintainable in view of G.O.Ms.No. 636, dated, 29-12-1983 which exempts houses whose monthly rent exceeds Rs. 1,000/- from the operation of provisions of the Act.
(2) The eviction petition is not maintainable as all the partners of the tenant-firm, Babu and Co., are not made parties to the eviction petition.
4. It may be stated here that the learned counsel for the petitioner has not made any submission about bona fide requirement, and in my view rightly so, in view of the concurrent finding of fact by the two Courts below.
I CONTENTION:
5. Mr. B. Siva Reddy, learned counsel for the respondent, raised a preliminary objection that it is not open to the petitioner to raise this contention as it was not raised either in the counter to the eviction petition or in the grounds of appeal before the appellate authority. He contends that the petitioner ought to have raised this objection at the earliest possible time before the Rent Controller and having not raised it and having taken a chance and submitted to his jurisdiction, cannot raise this point now after the verdict has gone against him, and more so when no prejudice is caused to him as applicability of the Act is more favourable to him than the Transfer of Property Act. He further submits that even if the petitioner is permitted to raise this question now, it will be only exercise in futility as there is already a finding that the rent is less than Rs. 1,000/-. He further submits that the lower appellate authority erred in permiting petitioner's counsel to raise this point even though it was not raised in the grounds of appeal and that he can assail the procedure adopted by the lower appellate authority in this behalf, while supporting the order passed by it. The learned counsel for the petitioner submits that even though this ground was not taken in the counter to the eviction petition and in the grounds of appeal before the appellate authority, it was argued during hearing of the appeal and the appellate authority dealt with it and gave finding in para 10 of the judgment in C.M.A., rejecting his plea and hence the petitioner is entitled to raise this question. It is also his submission that he is entitled to urge this ground which is a pure question of law raised in the grounds of civil revision petition.
6. In support of his objection, Mr. B. Siva Reddy, learned counsel for the respondent, relied on decisions of this Court in P. Shanker v. P. Nagamalleswam Rao, 1987 (2) ALT 665 and R. Audiseshaiah v. S.M. Mallikarjuna, 1990(1) An.W.R. 591. In P. Shanker's case, 1987 (2) ALT 665. , in similar circumstances, this Court did not permit the tenant to raise additional ground based on G.O.Ms.No.636. No doubt, in that case the tenant has not raised that ground even in the grounds of revision petition unlike in the present case where such a ground is raised. But merely because the ground is raised in the grounds of revision petition, it does not make any difference to the principle. In R. Audiseshaiah's case (2 supra), this Court held that tenant is not entitled to raise the plea of jurisdiction of Rent Control Court when he has not raised the same before the Rent Controller or the appellate authority. I see considerable force in the submission of learned counsel for the respondent. Further no prejudice is caused to the tenant as the Act is cetainly more The second contention is that eviction petition is not maintainable as all the partners of the firm are not made parties to the eviction petition. This ground also was not taken either in the counter to eviction petition or in the grounds of appeal before the appellate authority and is raised for the first time in the revision petition. Had the petitioner taken this point before the Rent Controller, the landlord would have imp leaded all the partners, assuming that the tenant is a firm. No reason is given why the petitioner has not taken this point in the counter to the eviction petition which was filed in the year 1986 even though the decision of the Supreme Court in Chhotelal Pyarelal v. Shikarchand, , relied on by the learned counsel for the petitioner, was rendered on 27-7-1984 and . Assuming that the petitioner is entitled to succeed on this ground, the result will be sending back the petition for trial afresh to the Rent Controller with a direction to implead all the partners. .This serves no purpose except to protract the proceedings and the petitioner is not put in any way to prejudice or hardship by non-impleading all the other partners. For these reasons and for the reasons mentioned in respect of first contention, the petitioner is not entitled to raise this ground at this stage, beneficial to him than the Transfer of Property Act. On the other hand, it is the landlord who will be put to prejudice and hardship if the whole proceedings are declared as without jurisdiction at this stage and he is driven to file civil suit which also serves no purpose since the Civil Court will not have now jurisdiction in view of the finding that the rent is Rs. 600/-. In view of this, I hold that the petitioner is not entitled to urge this ground. Hence, I need not go into the merits of the revision petition on this ground and discuss number of decisions cited by the learned counsel for the petitioner.
II CONTENTION:
7. The second contention is that eviction petition is not maintainable as all the partners of the firm are not made parties to the eviction petition. This ground also was not taken either in the counter to eviction petition or in the grounds of appeal before the appellate authority and is raised for the first time in the revision petition. Had the petitioner taken this point before the Rent Controller, the landlord would have impleaded all the partners, assuming that the tenant is a firm. No reason is given why the petitioner has not taken this point in the counter to the eviction petition which was filed in the year 1986 even though the decision of the Supreme Court in Chhotelal Pyarelal v. Shikarchand, 3. ., relied on by the learned counsel for the petitioner, was rendered on 27-7-1984 and . Assuming that the petitioner is entitled to succeed on this ground, the result will be sending back the petition for trial afresh to the Rent Controller with a direction to implead all the partners. This serves no purpose except to protract the proceedings and the petitioner is not put in any way to prejudice or hardship by non-impleading all the other partners. For these reasons and for the reasons mentioned in respect of first contention, the petitioner is not entitled to raise this ground at this stage.
8. Even on merits, the contention of the learned counsel for the petitioner is not well founded. He relied on a decision of the Supreme Court in Chhotelal Pyarelal v. Shikarchand (3 supra), where it was held that in case of eviction against partnership firm, all the partners have to be impleaded and that though non-impleading of partners is not fatal, partners can be impleaded at any time. That case arising under C.P. and Berar Letting of Houses and Rent Control Order, 1949, went upto the Supreme Court before commencement of trial when the preliminary objection raised by the tenant was that all the partners of the firm were not impleaded. While holding that non-impleading of partners is not fatal, the Supreme Court observed that it is open to the landlord to implead the partners even at that stage and proceed with the trial. This case is distinguishable, the decision of the Supreme Court proceeded on the reasoning that Code of Civil procedure does not apply to proceedings under the C.P. Rent Control Act. A Full Bench of five Judges of this Court in P.N. Rao v. K. Radhakrishnamacharyulu, . held that provisions of the Code of Civil Procedure, in so far as they are not inconsistent with the provisions of the Act, apply to proceedings under the Act. Thus by virtue of provisions of Order XXX of the Code of Civil Procedure, eviction petition is maintainable against the firm as such as there is no provision to the contrary in the Act. Further, the Supreme Court has held that non-impleading of partners is not fatal and that case arose against preliminary objection. Here, the trial as well as appeal is over and the contention is raised for the first time in the revision petition. The learned counsel for the petitioner also relied on a decision of Ramanujulu Naidu J in C.R.P.No. 1294 of 1987 dated, 10-11-1987. The learned Judge following the decision in Chhotelal Pyarelal v. Shikarchand (3 supra) held in favour of the tenant and remitted the matter to the Rent Controller. As I have already distinguished the Supreme Court Judgment and as judgment of a Bench of five Judges was not brought to the notice of the learned single Judge, I have to hold that this decision is per incuriam.
9. Apart from this, the decision of Suprem Court in (3) supra does not help the petitioner since in the present case, eviction petition is filed against one of the partners of the firm and not against firm as such as in the Supreme Court case. As per Section 4 of Partnership Act, any partner while carrying on business of the firm acts as an agent of other partners. Thus, even assuming that the tenant is firm, eviction petition filed against one of the partners is maintainable as in the eye of law he represents all the partners. Accordingly, I reject the second contention.
C.M.P.No. 4770 of 199510. This C.M.P., is filed to receive and admit as additional documentary evidence the rent receipts dated, 28-2-1985,8-4-1985 and 30-4-1985 issued by the respondent in the name of Babu & Co. Even assuming that this Court has jurisdiction to receive additional evidence in civil revision petition filed under Section 22 of the Act, additional evidence sought to be filed now is of no assistance to the petitioner. The documents sought to be filed are xerox copies which are not admissible. Apart from this, these receipts are not relevant since even assuming that the tenant is the firm, one of the partners is impleaded as respondent in the eviction petition. Accordingly, C.M.P., is dismissed.
11. The learned counsel for the petitioner filed additional material papers wherein item Nos. 4,5,7 and 8 are not part of the record. No petition has been filed to recieve them as additional evidence. Accordingly, these cannot be considered. Even otherwise, they are not relevant for the reasons mentioned while dismissing C.M.P.No. 4770 of 1995.
C.M.P.NQ. 4771 of 1995
12. This C.M.P., is filed to examine and dispose of the revision petition giving full consideration to grounds Nos. 7 and 8. If by "full consideration", what the petitioner means is that merits may be decided, 1 have already held that the petitioner is not entitled to raise this ground at this stage and accordingly this C.M.P., is dismissed. As far as ground No. 7 is concerned, I have already held that even on merits, there is no substance in it.
13. In the result, civil revision petition is dismissed. The petitioner is given three months time from to-day to vacate the premises subject to the condition that he will continue to pay the rents in time. No casts.
C.R.P.No. 3130 of 199114. The petitioner is a tenant of non-residential premises bearing Door No. 7/532 at Robertsonpet, Machilipatnam, belonging to the respondent. The respondent filed R.C.C.No. 21 of 1986 on the file of Rent Controller, Machilipatnam, seeking eviction of the petitioner on the grounds of (1) default in payment of rents, (2) committing acts of waste and (3) for bona fide requirement. According to the averments in the eviction petition, the rent for premises was originally Rs. 500/- per month. As the landlord wanted the premises to start his own business, the tenant promised to vacate the premise- by the end of June, 1986, and pay in the meantime enhanced rent of Rs. 1,000/- per month. The landlord did not agree in the first instance but ultimately agreed to it. On 14-5-1986, the tenant sent Rs. 1,100/- towards rent due for this premises and another premises No. 7/533, which is the subject matter of C.R.P.No. 3129 of 1991. It was appropriated by the landlord towards part-payment of Rs. 600/- towards premises No. 7/533 and Rs. 500/- towards premises No. 7/532, and sent the receipt. Later on, correspondence ensued wherein the landlord was taking the stand that stipulated rent is Rs. 1000/- while as per tenant it is Rs. 500/-. The tenant has been paying Rs. 1,100/- for both the premises', even after June, 1986 and the landlord has been appropriating it towards part-payment of the rent for the two premises. In the counter, the tenant denies the allegation that he promised to pay enhanced rent of Rs. 1,000/- and says that the landlords has illegally appropriated the rent paid towards part-payment and that he is not a defaulter. He also denied acts of waste and bona fide requirement of the landlord. The Rent Controller held that the rent is inly Rs. 500/- and that there is no default on the part of the tenant. However, he allowed the eviction petition on the ground that the tenant has committed acts of waste and also that the landlord wants the' premises for his own requirement. On appeal, the appellate authority also found that there is no default on the part of the tenant in payment of rent and while upholding the order of the Rent Controller regarding bona fide requirement, reversed the finding of the Rent Controller on commission of acts of waste. Ultimately, the order of eviction was confirmed. Against this, the tenant has preferred this revision petition.
15. Sri D. Sudhakara Rao, learned counsel for the petitioner, raised the following contentions:
(1) As even according to the eviction petition, the rent is more than Rs. 1,000/- per month, the Act has no application and eviction petition is not maintainable in view of the G.O.Ms.No. 636 dated, 29-12-1983 which exempts houses whose monthly rent exceeds Rs. 1,000/- from the operation of the provisions of the Act.
(2) The eviction petition is not maintainable as all the partners of the tenant-firm, Babu Silks, are not made parties to the eviction petition.
16. It may be stated here that the learned counsel for the petitioner has not made any submission about bona fide requirement, and in my view rightly so, in view of the concurrent finding of the fact by the two Courts below.
17. As far as the first contention is concerned, it may be straight away seen that there is absolutely no substance in it since according to the eviction petition, the rent claimed was Rs. 1,000/- i.e., within the limit specified in G.O.Ms. No. 636. Hence, the first contention is rejected. As far as the second contention is concerned, for the reasons mentioned while dismissing C.R.P.No. 3129 of 1991,I hold that the petitioner is not entitled to raise this ground at this stage and that even on merits, there is no substance in the contention. Accordingly, C.M.P. No. 4986 of 1995 filed to examine and dispose of the civil revision petition considering ground No. 7 is dismissed. C.M.P. No. 4987of 1995 is filed to receive four rent receipts issued to Babu Silks as additional evidence. These are not relevant since even assuming that tenant is a firm, one of the partners is impleaded in eviction petition. Accordingly, C.M.P.No. 4987 of 1995 is dismissed.
18. In the result, following the judgment in C.R.P.No. 3129 of 1991, this revision petition also deserves to be dismissed and is accordingly dismissed. The petitioner is given three months time from today to vacate the premises subject to the condition that he will continue to pay the rents in time. No costs.