Andhra HC (Pre-Telangana)
S.K. Sharma vs A. Viswanath on 12 July, 2005
Equivalent citations: 2005(6)ALD119, 2006(3)ALT478
ORDER P.S. Narayana, J.
1. This revision is preferred by the tenant under Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, hereinafter in short referred to as "Act" for the purpose of convenience, aggrieved by the reversing order made in R.A. No. 8/99 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad. Respondent herein, petitioner in RC. No. 779/94 on the file of IV Additional Rent Controller, Hyderabad filed eviction petition praying for the relief on the grounds of Section 10(3)(b)(iii)(a) proviso (c) bona fide personal requirement, mala fide denial of title, material alterations and unlawful activities. The learned Rent Controller on appreciation of the evidence of PW-1 and RW-1 and Exs.A-1 to A-17 and Exs.B-1 to B-82 dismissed the R.C. by order dated 2-12-1998. Aggrieved by the same, the petitioner in R.C./respondent in the present civil revision petition, hereinafter referred to as "landlord" filed R.A. No. 8/99 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad and by order dated 27-1-2004 the Appeal was allowed on the grounds of mala fide denial of title, wilful default and bona fide personal requirement and the relief on other grounds had been negatived. Aggrieved by the same, the present civil revision petition is preferred.
2. Sri Atchutanand, the learned Counsel representing the revision petitioner, hereinafter referred to as "tenant" would maintain that the reasons recorded by the learned Rent Controller are justifiable reasons and the Appellate Authority had reversed the findings on unsustainable grounds. The learned Counsel also had pointed out that the landlord had not furnished all the particulars as required by Section 28 of the Act and the Rules framed thereunder. The learned Counsel also had drawn the attention of this Court to the order made in R.C. No. 23/94 filed by the tenant under Section 9(3) of the Act and would contend that in the light of the same, to say that the denial of title is mala fide definitely cannot be sustained. The learned Counsel also on facts made an attempt to convince this Court that there is no denial of title at all. The learned Counsel also would comment that there is no ground of wilful default at all, but surprisingly the Appellate Authority had recorded certain findings on the said ground also and hence those findings definitely cannot be sustained. The learned Counsel also advanced certain submissions relating to Ex.A-4 and would comment that this would not amount to attornment of tenancy and hence in the light of the clear evidence of RW-1 the findings recorded by the Appellate Authority cannot be sustained.
3. Per contra, Sri Jagapathi, the learned Counsel representing the respondent/ landlord would submit that as far as the ground of bona fide personal requirement is concerned, the landlord deposed in detail on this aspect and the evidence was appreciated in proper perspective and eviction was ordered by the Appellate Authority. The Counsel also would contend that on the aspect of denial of title it is not as though the order made in R.C. No. 23/94 alone is available on record. Apart from this aspect of the matter, Ex.A-4 notice which was duly served on the tenant and also the written statement filed by Bheem Rao, the original owner, in O.S. No. 2/94 on the file of III Assistant Judge, would clearly go to show that the sale of property by the original owner Bheem Rao in favour of the landlord is within the knowledge of tenant and the tenant despite the same had denied the title specifically deposing in cross-examination that he did not recognize the mutation effected in favour of the landlord under Exs.A-2 and A-3. The learned Counsel would contend that this will negate the bona fides of the tenant and hence the denial may have to be taken as mala fide denial. The learned Counsel also had placed reliance on certain decisions in this regard.
4. Heard both the Counsel.
5. The landlord in nut-shell in the R.C. aforesaid pleaded as hereunder :
The petitioner/landlord is the absolute owner of the petition schedule property having purchased the same from one Bheem Rao on 22-9-1992 and the sale being confirmed by the Joint Sub-Registrar I, on 28-4-1993. The fact of purchase by the petitioner/landlord of the said house was brought to the notice of the tenant through registered post acknowledgement due on 16-1-1994 which was acknowledged by the respondent on 21-1-1994. The respondent is a tenant of the suit premises in the ground floor portion comprising of one bedroom, one drawing room, one kitchen room and one dining room, W.C. and bathroom. The respondent/tenant had denied the title of the petitioner unjustly and without bona fides and the respondent/ tenant is liable for eviction on that ground. The respondent/tenant is aware of the sale transaction and he had received the letter issued by the petitioner/landlord and the respondent/tenant is not justified in denying the title. The petitioner/landlord is a practicing advocate and he is also a tax consultant, presently residing in a rented flat bearing No. 104 in Dwaraka Apartments at Somajiguda. The petitioner's office is located in Punjagutta. The petitioner is living with his family comprising of his wife and son. The petitioner's parents are presently residing at Nellore and they intend to move down to Hyderabad to reside along with the petitioner/landlord. The demised premises is bona fide required by the petitioner/landlord for his residence as well as for the purpose of his profession. The petitioner/landlord is not able to park his car properly in the rented flat. The respondent/ tenant can search for alternate accommodation for his residence. The respondent/tenant is indulging in unlawful activities which brings discredit to the building as a whole in the locality. The petitioner/landlord also apprehends that the respondent/tenant is a trouble maker too and does not even fear to take law in to his own hands for the purpose of making unlawful gain. The respondent/tenant is making material alterations to the demised premises and thereby to impair its utility materially. The monthly rent for the suit portion is Rs. 450/- per month exclusive of electricity and water charges.
6. The revision petitioner herein/ respondent in the R.C./tenant filed a counter no doubt averring certain facts without specific denial and pleading that those facts are not within his knowledge. The tenant no doubt had not disputed that Bheem Rao was the owner but however had pleaded that it is not within the knowledge of the tenant about the landlord having purchased the said property from Bheem Rao. The receipt of notice dated 16-1-1994 is not in serious dispute. Specific stand was taken that after receiving the said notice, the respondent/tenant in the R.C. entertained bona fide doubt who is entitled to collect the rents in respect of the demised premises. The respondent/ tenant had addressed a legal notice dated 14-1-1994 to Bheem Rao clarifying about the sale of the property. In spite of having received the said notice the said Bheem Rao had not given any reply. The respondent/tenant is the tenant in respect of the ground floor premises with a monthly rent of Rs. 450/- per month excluding electricity and water charges. Originally the respondent/tenant had obtained the suit premises from one D. Bheem Rao in 1974 on oral tenancy and subsequently Bheem Rao under the threat of eviction had enhanced the rent from time to time and the present rent is Rs. 450/- per month. The municipal tax is payable by Bheem Rao. The respondent/tenant is regular in payment of monthly rent right from the commencement of the tenancy. From 1986 onwards at the request of Bheem Rao the respondent/tenant had been remitting the rents by way of account payee D.D. to Bheem Rao. In 1989 Bheem Rao effected a publication in Deccan Chronicle for the ; sale of suit property. Thereafter the respondent/tenant had received threatening calls for dispossession by a person Venkal Reddy. The respondent's wife lodged a complaint on 18-4-1989 with the Station House Officer and the police had enquired the matter and thereafter threatening calls stopped. The respondent/tenant had been sending rents by way of account payee D.D. along with covering letter to Bheem Rao in Warangal and Bheem Rao had been acknowledging the same by encashing the said D.Ds. The first floor premises was in occupation of a tenant who vacates the premises on 28-12-1993. After the said tenant vacated the premises the petitioner/landlord had put his articles in the first floor premises. On 11-1-1994 at about 10 p.m. two unknown persons at the instigation of the petitioner/landlord entered into the upstairs portion which was vacant and returned in 45 minutes and removed two steel fabricated gates and took them away high handedly. The respondent/tenant had also lodged a complaint on 11-1-1994 and the Police Officer had visited the premises along with a person calling himself as Viswanath i.e., the petitioner/landlord. The petitioner/landlord alleged before the police that he had purchased the double storied house from Bheem Rao. In fact, at no point of time Bheem Rao had informed about the alleged sale of the property in favour of the petitioner/landlord. Bheem Rao was receiving the D.D. sent by the respondent/ tenant till December 1993 and Bheem Rao had not attorned the tenancy of respondent tenant in favour of the petitioner/landlord. As the tenancy is not attorned the respondent/tenant cannot pay rent to the petitioner/landlord. The respondent/tenant got issued advocate notice to Bheem Rao to inform whether any sale was effected in respect of the double storied premises in favour of the petitioner. Bheem Rao and petitioner/landlord with mala fide intention tried to dispossess the respondent/tenant from the suit premises and the respondent/ tenant filed injunction suit O.S. No. 2/94 on the file of III Assistant Judge and also filed LA. No. 8/94 for grant of an ex parte injunction against Bheem Rao and the petitioner/landlord. The Court was pleased to grant interim injunction. After the notice was sent through Court by way of registered post to Bheem Rao and the petitioner/landlord, the petitioner/landlord had issued a letter dated 16-1-1994 which was received by the respondent on 21-1-1994 wherein the petitioner/landlord had alleged that he had purchased property on registered sale deed dated 22-6-1992. There is no attornment of tenancy in respect of the suit property in occupation of the respondent/ tenant by Bheem Rao to pay rents to the petitioner/landlord. Bheem Rao had received rents upto December 1993. In view of that there is no attornment and there is a bona fide doubt as to who is entitled to collect the rents in view of the petitioner/ landlord having claimed the said property. So the respondent/tenant had filed a petition under Section 9(3) of the Act against Bheem Rao and Viswanath. Notices were given to both to the petitioner/landlord and Bheem Rao. The petitioner/landlord filed vakalath before the Court but had not chosen to file any counter and he was set ex parte in the proceedings. Bheem Rao was also set ex parte in the above proceedings. The petitioner/landlord had filed a petition to set aside the ex parte order which was allowed on payment of costs. The petitioner/landlord had not paid costs and the said petition was dismissed and ex parte evidence was recorded by the Court on 13-7-1994 and the said application was allowed permitting the respondent/ tenant to deposit the rents till the bona fide doubt is removed. The respondent/tenant had been regularly depositing rents every month credit of R.C. No. 23/94. The petitioner/landlord is not a practicing Advocate and also not a Tax consultant. It was also denied that he is presently residing in flat No. 104 in Dwaraka Apartments. The petitioner's/landlord office is not located in Punjagutta. It is also false and incorrect that the petitioner/landlord is married and living with his wife and children. It is also false and incorrect that the petitioner's/ landlord parents are residing in Nellore and they intend to move down to Hyderabad to reside along with the petitioner/landlord. It is also false and incorrect that the petitioner/landlord requires the suit premises for his alleged requirement. It is also false and incorrect that the petitioner/landlord is not properly parking his car. There is no privity of contract between the respondent/ tenant and petitioner/landlord as Bheem Rao had not attorned the tenancy of the respondent/tenant in favour of the petitioner/ landlord and so the petition is not maintainable. It is also false and incorrect to say that respondent/tenant can search for alternate accommodation for his residence. It is false to say that the respondent/ tenant is indulging in unlawful activities which bring discredit to the building as a whole in the locality. It is false to say that the respondent/tenant is a trouble maker and does not care the law and takes law into his hands for the purpose of making unlawful gain. The respondent/tenant is not making any material alterations to the demised premises.
7. The Appellate Authority framed the following points for consideration :
1. Whether the denial of title of the landlord is mala fide one and whether there is jural relationship of landlord and tenant between both the parties ?
2. Whether the tenant has committed wilful default in payment of rents ?
3. Whether the landlord requires the demised premises for his residence and practice ?
4. Whether the tenant is causing nuisance and indulging in unlawful activities which causes nuisance to the landlord and to the locality people ?
8. At the out-set it may be stated that while answering Point No. 2 it was held that the tenant is a wilful defaulter. This ground in fact was not taken as a ground at all by the landlord and hence the findings recorded on Point No. 2 at para-10 of the Judgment of the Appellate Authority cannot be sustained and accordingly the same are liable to be set aside. Point No. 4 also had been negatived by the Appellate Authority recording reasons. Hence the said findings also need not be disturbed. The other two questions which fall for consideration before the Revisional Court are as hereunder :
1. Whether the denial of title of the landlord by the tenant is bona fide or mala fide in the facts and circumstances of the case ?
2. Whether the landlord requires the premises bona fide for his personal occupation for his residence and practice ?
9. Point No. 1 : The evidence of PW-1 and RW-1 is available on record and Exs.A-1 to A-17 and Exs.B-1 to B-82 were marked by the respective parties. The landlord purchased the property under registered sale deed Ex.A-1 from Bheem Rao and thus the landlord became the owner of the property. It is not in serious controversy that the landlord in pursuance of Ex.A-1 had occupied a portion of the demised premises and filed eviction petition for eviction of the present tenant from the first floor on the grounds aforesaid. The demised premises was transferred in the name of the landlord as per order of M.C.H. dated 23-2-1994 marked as Ex.A-2. The payment of taxes by the landlord to M.C.H. is evidenced by the pass book which is marked as Ex.A-3. PW-1 deposed about all these details. PW-1 also deposed about the issuance of notice on 16-1-1994 informing the tenant about the purchase of the demised premises by him under the registered sale deed and the office copy is marked as Ex.A-4 and the postal receipt Ex.A-5 and these were sent to the tenant both to the residence and also to his office and these were received. The acknowledgements are Exs.A-6 and A-7. Thus finding had been recorded relating to attornment. It is also not in serious controversy that the tenant filed the suit O.S. No. 2/94 on the file of III Assistant Judge, City Civil Court, Hyderabad for injunction against the landlord and his vendor and the vendor filed written statement in O.S. No. 2/94 clearly pleading that he had already sold the demised premises under Ex.A-1 to the present landlord. The said written statement filed by Bheem Rao in O.S. No. 2/94 is marked as Ex.A-8. Ex.A-9 is a certified copy of the decree in O.S. No. 2/94 wherein injunction was granted against the present landlord and the vendor not to evict the tenant except by due process of law. The assessment of demised premises was marked as Ex.A-10. Ex.A-11 is the Municipal Tax paid by the landlord on 22-3-1995. Ex.A-12 is the tax paid for demised premises for the period 1-4-1994 to 31-3-1995. Ex.A-13, A-14, A-15 also would clearly go to show the payment of taxes. PW-1 deposed about all these details. The tenant filed R.C. No. 23/94 under Section 9(3) of the Act for deposit of rents and certain details relating to the same no doubt had been narrated by RW-1 in his deposition and also these details had been pleaded in the counter filed in the R.C. The order is marked as Ex.B-2. Whether it is an ex parte order on an order on contest, the fact remains that under Section 9(3) of the Act an order was made. On the strength of it, certain submissions were made that the stand taken by the tenant cannot be said to be an unreasonable stand and hence though there may be denial of title the same would not fall under mala fide denial since mere denial is not sufficient. In Ganeshlal v. Meera Bai, 1986 (2) ALT 255, it was held that where there is any bona fide doubt or dispute as to the person who is entitled to receive the rent for the building, it is for the tenant as a reasonable prudent man to make deposit in the prescribed manner before the Controller explaining the circumstances under which he is seeking aid of Section 9(3) of the Act and continue to deposit same till the doubt is removed or the dispute is settled either inter se between the parties or by the competent authority or in the manner prescribed by Sub-section (4)(b) of Section 9 and when the tenant did not avail of the beneficial provision and though Section 9(3) is not mandatory it is for the tenant to avoid order of eviction to make avail of that statutory right and hence in such a case the petitioner was held to commit wilful default. In Mumtaz Ali Khan and Anr. v. Rupender Per shad and Anr., it was held :
"Prima facie the contention of the learned Counsel appears to be attractive, but on examination it lacks substances. This necessitates examination of the plea of the tenant. It has already been pointed out above that by way of amendment the tenant took further plea that the mulgi in question is an endowed property and, therefore, the Court has no jurisdiction. It only means that the owner of the premises has no title to the property and it is the endowment Department which would have title to the property. This obviously means denial of title of the owner-landlord. It may be pointed out here that there is a distinction between denial of jural relationship of landlord and tenant and denial of title of the landlord. It is only when a tenant denies the title of the landlord and such denial is not bona fide that he becomes liable to be evicted under clause (vi) of Sub-section (2) of Section 10 of the Act but not when he denies the relationship of landlord and tenant. Having regard to the expansive definition of the expression 'landlord' in Section 2(vi) of the Act, which includes persons other than the owner of the premises, denial of relationship of landlord and tenant does not amount to denial of title of the landlord. But mere denial of title of the landlord is not enough, it must also be shown that such denial is not bona fide."
10. Here is a case where in R.C. No. 23/94 the tenant had invoked the jurisdiction of the learned Rent Controller under Section 9(3) of the Act. It is no doubt on the ground that there is a bona fide doubt relating to whom the rents are payable. It is in relation to the relationship between the landlord and the tenant. It does not stop there. The prior landlord, the vendor of the present landlord had taken specific stand even in the written statement filed in O.S. No. 2/94 bringing it to the notice of the other side also that already sale had been effected. Apart from this aspect of the matter, notice also had been given by the present landlord to the tenant and the tenant had acknowledged the same. In the light of this conduct of the tenant, the stand taken by the tenant that he had taken a bona fide stand in denying the title despite the title deed standing in the name of the landlord and the mutation effected by the M.C.H. and also despite the clear stand taken by the prior landlord in the written statement in a judicial proceeding, this Court is of the considered opinion that despite the order made under Section 9(3) in R.C. No. 23/94 on facts, the denial of title by the tenant is definitely mala fide especially in the light of the conduct of the tenant and hence the said findings are hereby confirmed.
11. Point No. 2 : The second aspect is bona fide personal requirement. PW-1 in detail deposed about his bona fide personal requirement. Strong reliance was placed by the landlord on Vijayalakshmi Printing Press, through its Proprietor, Anand Rao, Nizamabad v. Nandula Shankar and Ors., 1994 (1) ALT 665, by the landlord to substantiate his stand that on facts bona fide personal requirement had been established. RW-1 also deposed about several aspects but had taken a stand that there is no privity of contract and also had relied upon several of the documents. RW-1 deposed in detail about Exs.B-1 to B-82. Several of these documents were marked most probably to show that he had been making deposit regularly. As already referred to supra, the ground of wilful default was not made a ground at all in the R.C. The evidence of PW-1 and RW-1 had been dealt within detail by the Appellate Authority. The specific stand taken by PW-1 is that he is an Advocate and Tax Consultant practicing at Hyderabad for the last ten years and he requires the premises bona fide for his residence and also for his practice and profession and his parents are aged and they have to live with him and he is at present doing practice in a rented premises at Dwaraka Apartments, Punjagutta, Hyderabad and this witness also deposed in detail about his purchase, mutation, issuance of notice and other details. This witness was cross-examined at length. On a careful scrutiny of the evidence of PW-1 and also RW-1, on several of the aspects RW-1 had given evasive answers and pleaded ignorance. This witness also deposed that the signatures in Exs.A-6 and A-7 are of RW-1 and he had received the original of Ex.A-4 and he also admitted that he had handed over the keys of the main gate to the landlord on 22-2-1994 in the presence of Police. This witness in fact had volunteered and no doubt he had denied the suggestion that it is incorrect to say that to create false record as if Bheem Rao is the owner Ex.B-5 to B-80 were filed and other suggestions also were denied. No doubt the other grounds had been negatived. However, this witness RW-1 admitted that he came to know that the landlord is a practicing Advocate at the time of cross-examination and he had not made an attempt to know whether he is practicing and he has no knowledge that he has been carrying on his practice at a distance of 4 KMs. from the petition schedule premises. In the light of the nature of evidence and the evasive answers given by RW-1, the findings recorded by the Appellate Authority cannot be found fault in this regard. No doubt there is some doubt whether the ground is bona fide personal occupation or it is by way of additional accommodation but the drawing line in between the two being very limited though these are separate grounds, even if the question of hardship is taken into consideration in the light of the evidence of PW-1 and RW-1 definitely the landlord's hardship would outweigh the hardship of the tenant since he is a practicing Advocate on tax side and he requires the premises bona fide for his residence and practice and also for the purpose of accommodating his dependents.
12. In the light of the findings recorded above, inasmuch as the ground of wilful default was not taken as a ground the findings recorded by the Appellate Authority are unsustainable findings and the same are hereby set aside. But however, on the other two grounds of mala fide denial of title and bona fide personal requirement the findings are hereby confirmed. Hence, viewed from any angle, this Court is of the considered opinion that the said findings are to be confirmed. Accordingly the civil revision petition shall stand dismissed being devoid of merit, with costs. The tenant is granted two months time to vacate the premises on his filing an undertaking to vacate the premises within a period of two weeks from today. In default, the landlord is at liberty to execute the order of eviction in accordance with law.