Andhra Pradesh High Court - Amravati
Nemani Suryanarayna vs Wilfred Koladyu Rabindranadth on 12 March, 2020
* HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ CIVIL REVISION PETITION No.1956 OF 2019
% 12th March, 2020
# Dr.Nemani Suryanarayana
... Petitioner
AND
$ Dr.Wilfred Kolady Rabindranadth and two
others.
... Respondents
! Counsel for the Petitioner : Sri V.R.N. Prashanth
^ Counsel for the respondents : Sri S. Subba Reddy
< Gist:
> Head Note:
? Cases referred:
1.(2014) 0 AIR (SC) 3708
2.(2010) 10 SCC 512
3.AIR 1997 Bombay 225
4.(1976) 2 AndhWR 31
5.(2002) 1 ALD 554
6.(2001) 4 ALD 652
7.2005 (2) ALT 448
8.(1989) 2 SCC 686
9.(1995) 6 SCC 500
10. (1999) 7 SCC 382
2
HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CIVIL REVISION PETITION No.1956 of 2019
ORDER:
The revision petitioner before this Court is an unsuccessful tenant against whom two concurrent orders were passed in R.C.C.No.13 of 2014, dated 11.08.2017, passed by the learned Special Officer Cum Principal Junior Civil Judge, Kakinada and in R.C.A.No.8 of 2017, dated 07.06.2019, passed by the learned Rent Appellate Controller- cum-Principal Senior Civil Judge, Kakinada respectively. Both the cases in the lower Courts went against tenant and in favour of the landlord. The tenant was directed to evict and handover the premises. Questioning the same the present Civil Revision Petition is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1990 (in short "the Act").
This Court has heard Sri V.R.N. Prashanth representing Indus Law Firm for the revision petitioner and Sri S. Subba Reddy representing the respondents.
For the sake of convenience, the facts and parties are referred to as arrayed in the Civil Revision Petition.
The landlord-tenant relationship etc., are not really in doubt. The essential questions that arise for consideration are -
3
(a) Whether the landlord was successful in proving the case in order to get an order of eviction against the tenant?
(b) Whether this Court in exercise of its revisional powers can re-examine the concurrent findings of fact by which two Courts hold that the tenant-
present revision petitioner was liable to be evicted? This Court is proposing to answer question "b" first.
Sri N. Subba Reddy, learned counsel for the respondents-landlord argued that since there are two
concurrent findings of fact, this Court must not interfere in the same. Relying upon the well known judgment of the Hon'ble Supreme Court of India reported in Hindustan Petroleum Corporation Ltd., v Dilbahar Singh1, learned counsel for the respondents drew the distinction between the revisional power of a Court and the appellate power of the Court. It is his contention that this Court cannot interfere with the findings of the fact recorded by the 1st Court or the 1st Appellate Court, because its view may be different on the reappreciation of the evidence. Therefore, learned counsel for the respondents argued that this Court should not sift through the evidence and come to a different conclusion since the reconsideration of questions of fact is not available to the High Court while exercising revision under Section 22 of the Act.
1(2014) 0 AIR (SC) 3708 4 This position of law does not really admit of any doubt. However, Section 22 of the Act would read literally as follows:
"22. Revision:. - (1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.
(2) The costs of and incident to all proceedings, before the High Court under sub-section (1), shall be in its discretion."
Relying upon the literal language of the Section, learned counsel for the revision petitioner argues that the revision Court has the power to satisfy itself as to the "legality, regularity or propriety" of an order or proceedings. Learned counsel for the revision petitioner argues that in this case there are serious issues about the legality and the propriety of the order. He also draws the attention of this Court to the penultimate paragraph of the judgment relied upon by the learned counsel for the respondents, wherein it is held as follows:
"45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on reappreciation of the evidence, its view is different from the Court / Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court / Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by 5 Court / Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision r order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence or coming to a different fining on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
Therefore, it is his contention that the findings of the Court are perverse and that they are grossly erroneous.
In view of this submission made by the learned counsel for the revision petitioner, this Court is proposing to go into the legal issues that are essentially raised and then examine the appreciation of the same by the Courts below.
The first and foremost submission made by the learned counsel for the revision petitioner is that the GPA holder has given evidence in this case before the Rent Controller as P.W.1. Learned counsel contends that the GPA holder has no personal knowledge at all of the facts and circumstances of 6 the case. Relying upon the land mark decision of the Hon'ble Supreme Court of India in the case of Man Kaur (Dead) by LRs., v Hartar Singh Sangha2 learned counsel argues that the GPA holder can only give evidence of facts which are within his personal knowledge but he cannot give evidence in place of his principal for the acts done by the principall. The position of law has been well settled.
1) As far as the giving of oral evidence is concerned; any person with the knowledge of the facts of the case can depose or give evidence. There is no need for a power of attorney or such other document to enable a person to give evidence in a Court if he has personal knowledge of the facts of the case (Central Bank of India v Tarseema Compress Wood Manufacturing Company and Ors.,3).
2) The power of attorney holder can give evidence of the facts which are in his exclusive knowledge or about the acts done by him subsequent to the execution of the GPA in his favour. He cannot, however, depose about the matters which have occurred long prior to the execution of GPA, nor can he depose of facts which are in the exclusive knowledge of the principal. This is the settled position of law.
Against this background, the submissions of the learned counsel for the revision petitioner are being examined. The two GPAs in this case are marked as Exs.P.39 and Ex.P.40. Ex.P.39 is dated 16.05.2015 and Ex.P.40 is executed on 2 (2010) 10 SCC 512 3 AIR 1997 Bombay 225 7 05.12.2012. The lease in this case was executed in the year 1997. This is visible from para-5 of the petition filed for eviction. The terms and conditions of the lease and other particulars were negotiated through one Smt.Sarojini Rajasekharan Francis. At more than one place in the petition filed, it is very clearly mentioned that Smt. Sarojini Rajasekharan Francis used to lookafter the schedule property and its rent. Even the collection of rents were done by the said lady herself. In the application filed for eviction at more than one place the close and intimate involvement of Smt. Sarojini Rajasekharan Francis in the transaction is clearly spelt out in the pleading. Both the original petitioners are residents of United States of America. They were not here when the transaction was completed. The default in the payment of the rent as per the submission in the petition also commenced in August, 2009. The advance amount said to have been given to the landlords was also adjusted before January, 2009 and therefore there is a default according to the petitioner.
Reading of these clear and categorical admissions in the petition filed make it very clear that the GPA Holder was not present either when the terms and conditions of the lease were negotiated; when the rents were collected / paid or when the alleged default was committed. Even at the time of exchange of lawyer's notice, which is in 2010, the present GPA holder was not involved in the transaction. This 8 involvement of Smt. Sarojini Rajasekharan Francis is also spelt out in the cross-examination by the GPA holder. The GPA holder as P.W.1 also states that he is resident of Hyderabad and the property in question is situated in Kakinada.
On an examination of all that is mentioned above, this Court is of the opinion that the GPA holder is not at all competent to give evidence in this case and it can be said that the respondents have not proved their case at all by examining the competent witnesses.
Apart from this learned counsel for the revision petitioner also argued that the failure to examine Smt. Sarojini Rajasekharan Francis is fatal to the case of the respondents since she is the person who has personal knowledge of the facts and circumstances of the case. Learned counsel again relies upon the decision of Man Kaur case (2 supra) cited earlier and states that when a party to the suit does not appear in the witness box and state his case on oath, the presumption would arise that his case is not correct.
This Court also agrees with the submission made by the learned counsel for the revision petitioner. Neither of the owners were examined as a party. A reading of the petition, the chief affidavit of P.W.1 and his cross-examination makes it very clear that at more than one place that the proper person is Smt.Sarojini Rajasekharan Francis, who was not 9 examined. The appendix of evidence does not show that any medical or other record was filed to prove that witness was incapacitated in any manner. It is mentioned that the said witness is aged and could not give evidence. A suggestion was put that the witness was intentionally hidden from giving evidence. This by itself is not enough to explain her absence.
In view of the well settled law on the subject and provisions of the Evidence Act, this Court also has to draw an inference that the respondents have not examined the appropriate witness to prove their case as per the settled law on the subject. Even the mere marking of a document is not proof of the contents. When the truth of contents of the document itself comes into a picture, the person who has knowledge of the same should be examined to prove the contents of the documents. In the case on hand absolutely no proof is filed on this important aspect.
Apart from this, this Court also notices that the petitioner has come to Court with a specific case, as can be seen in the pleadings, that the petitioner has been committing wilful default of rents. As per the settled law on the subject it is not every default that can be categorised as a wilful default. There should be a deliberate intention, negligence or indifference in the payment of rents. The law on this is well settled and does not require repetition. Learned counsel for the respondents relied upon Fatima Bi v Mohd.Akbar 10 Hussain4 to contend that even one month's default can be treated as wilful default. Relying upon Gundu Preemsagar v Nagabandi Jayashankar5 and Arnavaz Rustom Printer, Mumbai v N.D.Thadani6 he argues on similar lines and states that in the case on hand there is a wilful default and that both the lower Courts therefore came to a conclusion that respondents-landlord have made out a case.
In reply to this learned counsel for the revision petitioner relying upon G. Ganga Reddy v P. Madhavaiah7 submits that all the defaults are not wilful defaults. It is only where there is an intentional, deliberate, calculated and conscious default with the knowledge of legal consequences, it can be said that the default is wilful. Learned counsel for the revision petitioner relied upon M.N. Narayanan v K. Radhakrishnaiah and Others8, Dakaya alias Dakaiah v Anjani9 and J. Jermons v Aliammal and Others10 to argue as above. He also points out that a reading of the case or the evidence does not prove that there is a default at all.
This Court notices that an application is filed for eviction under Section 10 of the Act on two grounds -
a) Wilful default
b) Unauthorised alteration / damages 4 (1976) 2 AndhWR 31 5 (2002) 1 ALD 554 6 (2001) 4 ALD 652 7 2005 (2) ALT 448 8 (1989) 2 SCC 686 9 (1995) 6 SCC 500 10 (1999) 7 SCC 382 11 Coming to the issue "willful default" this Court notices that in para-8 of the petition (RCC No.13 of 2014), it is mentioned that the rents were paid upto July-2009 and from August-2009 the respondent was continuously committing willful default. In the same paragraph it is mentioned that the advance amount that is lying there with the landlord has been adjusted and by January, 2009 itself the entire advance amount was adjusted. As can be seen from Ex.P.1 notice, dated 07.04.2010, it is mentioned that the default commenced from August, 2009. A demand is made for payment of arrears of rent from August, 2009 along with interest. In reply to this Ex.P.2 reply notice dated 15.04.2010 was issued by the tenant, wherein he stated that an amount of Rs.20,000/- was lying with the landlord as an advance. It is also stated that he offered the rent to Smt. Sarojini Rajasekharan Francis but she postponed to receive the same. It is also mentioned that on 08.04.2010 the tenant went to the village to meet her to tender the rent. In Ex.P.3 rejoinder notice dated 26.04.2010 however it is mentioned that the advance was adjusted by 09.08.1997 when the draft lease deed was signed. Learned counsel for the revision petitioner submits that there is no consistency in the stand of the respondents.
The respondents have taken a plea that there is no default either in 2009 or later. It is his contention that he was never of defaulter, let alone a wilful defaulter. After this 12 pleading was filed the evidence of parties commenced and in the cross-examination it was very clearly admitted by PW 1, the prime witness for landlords, that "it is true that the period of default is not mentioned in the present petition. It is true that no suit for recovery of arrears of rent is also filed." Later, when the witness again was cross-examined on 09.12.2016, the witness admits as follows "I do not know the purpose of filing RCC for eviction. I do not know whether the 1st respondent is regularly paying the rents through his advocate to other advocate. I do not know whether there are any arrears of payment of rents. He also admits that before filing the RCC he has not made any enquiries, whether the respondent is regular or irregular in payment of rents".
Even in the cross-examination of the witness (PW-1) by the respondent counsel (tenant) he admitted that the actual period of default is not clearly or categorically mentioned. It is trite law to say that a person who comes to Court will have to prove his case. Either he has to prove his case through his own testimony and documents or prove his case by effectively demolishing the respondent-defendant's case and elicit answers which could help him to prove his case. The essential ground on which the case for eviction was filed is wilful default. Therefore, the landlord had a duty to prove that there was default in payment of rent and that these defaults are wilful. The settled law which has been cited earlier, including the judgments reported in S.Sundaram 13 Pillai (6 supra), it was held that wilful default indicates default that is intentional, deliberate, calculated and conscious with the full knowledge of the legal consequences. Therefore, this Court holds it is not enough for the landlord to prove a simple failure to pay the rent. The essential mental element and the awareness of the consequences should also be proved to make out a case for "willful" default.
The rent controller held that from the evidence available the 1st respondent had failed to prove the payment of rent from January-2010, March-2010, May-2010, August- 2012 and January-2013. This is the ground on which the eviction was ordered. In the opinion of this Court, this is totally contrary to the case setup by the landlords-respondents themselves. In the entire pleadings and in the chief- examination of P.W.1, there is no averment that these specific months are the months in which wilful default was committed. It is the respondents' case that there was wilful default from 2009. But as admitted by the witness for the landlords at more than one place that he is not aware whether the tenant is paying rents regularly or not. He is also not aware if there are any arrears of rents that are payable. He admits that the period of default is not mentioned in the present petition. As far as rents for January to March-2010 are concerned the stand of the tenant is fairly clear. In the lawyer's notice, counter and in the oral evidence, it is very clearly stated that as he was travelling to USA, he went and 14 met Smt. Sarojini Rajasekharan Francis and requested to pay the rent in lump sum and accordingly in April, 2010 the rent was paid in lump sum. There is no cross-examination on this important aspect of payment of rent in lump sum because the tenant was in USA. There is no cross-examination about this aspect either for the months of May-2010, August-2012 and January-2013 also. There is no clear or categorical evidence to show how the trial Court has come to a conclusion that the tenant has failed to pay the rent in this particular period. The payment of Rs.10,000/- on 12.04.2010 by a draft is clearly visible from Ex.P.2 reply lawyer's notice.
This issue is specifically raised in the grounds of appeal filed in the 1st Appellate Court. Despite this the Appellate Court also held that there is no reason to disbelieve the evidence of P.W.1, that the Appellate Court also held that the evidence of R.W.1 does not inspire confidence.
Time and again it has been mentioned that the highest Courts of the land that the first Appellate Court is the final Court of fact and of appreciation of evidence. A duty is cast upon the 1st Appellate Court to discuss the evidence and then come to a conclusion. The sweeping statement that the evidence of R.W.1 does not inspire confidence, is in the opinion of this Court not enough to ignore the entire evidence. The handing of the rent in a lump sum by Demand Draft dated 12.04.2010 is borne out by the reply lawyer's notice and also by the pleading in the counter. This aspect has been 15 totally overlooked by the Appellate Court. It is asserted at more than one place that there was no fixed period in which the rent was being paid. It is asserted that Smt. Sarojini Rajasekharan Francis is collecting rents from the tenant at her own convenience. Sometimes she was collecting rents in advance and sometimes she used to defer the receipt of the rent also. The same is again reiterated in the evidence of R.W.1. This vital aspect of the chief examination is again would not be denied. There does not appear to be a fixed pattern for payment of rent.
This Court therefore holds that in this case on hand both the trial Court and the 1st Appellate Court had failed to discharge the duty that was cast upon them to go through the evidence and arrive at the truth. The time tested rule of law that there cannot be evidence contrary to the pleadings has also been ignored. Both the courts have failed to appreciate whether the landlords have proved their case at all. The landlords who come to a Court with specific case cannot turn around and say that they are entitled to decree for eviction, on an altogether different ground. A duty was cast upon the landlords to prove their case through satisfactory evidence. The landlords had failed to prove their case. The power of attorney holder has absolutely no personal knowledge of the fact of the case. As in the judgment relied upon by the learned counsel for the revision petitioner viz., Man Kaur case (2 supra) the Hon'ble Supreme Court of India clearly 16 held that the law requires the plaintiff or every party to a proceeding to establish or prove something with regard to state of mind of a person, it is only the person concerned who has to give evidence. The Hon'ble Supreme Court of India clearly held as follows:
"(g) Where the law requires or contemplated the plaintiff or other party to a proceedings, to establish or prove something with reference to his "state of mind"
or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "reading and willingness" fall under this category."
The exceptions recognized by the Hon'ble Supreme Court of India are not present in this case. Smt. Sarojini Rajasekharan Francis who has dealt with the tenants is the proper person to establish this "willful / intentional default". PW.1 (GPA holder) cannot depose about this state of facts as his GPA was executed long after the incidents had occurred. Therefore, the landlords-respondents in this case have failed to prove that there is a "willful" default viz., a default that is deliberate / contemptuous with the knowledge of the consequences. In the opinion of this Court is, this is an issue of the state of mind of the respondent which has to be necessarily proved by examining a witness, who was personally aware of the facts. The GPA holder who was examined as PW 1 does not fit into this description. He is not 17 a proper witness. He is not capable of giving evidence about the mental state of the tenant in defaulting the rents.
This Court also notices that there is no admission by the landlord of a willful default which would also enable the landlord-respondents to seek a decree. The cross- examination of the witness for the tenant-revision petitioner does not contain any admission which would entitle the landlord for a decree. In fact, in the ultimate analysis the trial Court granted a decree on the ground that the 1st respondent failed to prove the payment of rents in a few months in 2010, 2012, 2013. This Court also notices that the Appellate Court committed an error in coming to the conclusion: "that an advance amount of Rs.20,000/- was paid" is a story invented by the Appellate Court. The Appellate Court was failed to look into the reply lawyer's notice in which landlord himself has admitted that the advance was given and the same was adjusted. Hence, it cannot be called an invented story.
This Court has also discussed the findings in view of the judgment cited by the learned counsel for the revision petitioner. If the totality of the case is taken into consideration it is clear that there is non-consideration of material, finding based of no evidence and some findings, which are grossly erroneous. Both the courts in the opinion of this Court committed a very serious error in accepting the evidence of GPA holder. The case of Man Kaur (2 supra) was cited in the trial Court also. Despite the dates being available 18 and the admissions made by the witness, both the Courts committed an error in holding that P.W.1 was an appropriate witness.
In that view of the matter, this Court is of the opinion that the judgments pronounced by both the Courts are neither legal nor correct. This Court is satisfied that there are no findings according to law.
Lastly, what remains for consideration is the 2nd ground for eviction viz., damages and unauthorized alterations. Section 10 (2) (3) of the Act applies only if the tenant commits acts of waste. In the case on hand it is very clearly stated that repairs were caused to the building because a part of the building was demolished by the Municipal Corporation for widening of the road. The 1st witness for the landlord i.e., P.W.1 agreed that in the year 2006-07 the municipal authorities demolished part of the petition schedule property for road widening. This is also reiterated by R.W.1 in his examination. This important aspect is also not been considered by the Court below. In any view of the matter, this Court is of the opinion that on the primary point itself the revision petitioner is entitled to an order from this Court. Concurrent findings of fact will be lightly interfered but in the case on hand, in view of the points stated above, this Court is of the opinion that both the Courts below have failed to decide the matter as required by law. Therefore, this Court is of the opinion that the findings 19 which are grossly erroneous cannot be allowed to stand. These findings if they are allowed to stand will result in injustice to the revision petitioner. Therefore, this Civil Revision Petition is liable to be allowed.
Accordingly, the Civil Revision Petition is allowed setting aside the orders dated 07.06.2019 in RCA No.8 of 2017 on the file of the Rent Appellate Controller-cum- Principal Senior Civil Judge, Kakinada and the order dated 11.08.2017 in R.C.C.No.13 of 2014 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Kakinada. There shall be no order as to costs.
As a sequel, Miscellaneous Applications, if any, pending in this Civil Revision Petition shall stand closed.
___________________________ D.V.S.S. SOMAYAJULU, J Date:12.03.2020.
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