Andhra HC (Pre-Telangana)
Rizwan And Others vs Alleemunnisa Begum on 1 December, 1999
Equivalent citations: 2000(1)ALD525
JUDGMENT
1. This revision is directed against the order passed by the Chief Judge, City Small Causes Court, Hyderabad, passed in RA No.272 of 1990 on 22-12-1994 confirming the order passed by the Principal Rent Controller, Hyderabad, in RC No.299 of 1981, dated 6-7-1990 whereby the petitioners have been ordered to vacate from the suit accommodation.
2. The facts which are no longer in dispute before me, in short, are that, the deceased Shaban Ali was the husband of the first petitioner and the father of thepetitioner Nos.2 and 3. He had taken the suit accommodation on lease initially for a period of 10 years for non-residential purpose on 11-12-1963 through registered lease deed, Ex.P2, from the respondent-landlady on a monthly rent of Rs.270/- excluding water and electricity charges. The rent was agreed to be enhanced to Rs.300/- per month from 11-12-1973 (sic). The said Shaban Ali expired some time in the year 1967. The respondent-land lady did not know about his death. She terminated his tenancy through a telegraphic notice dated 27-3-1973 and filed a suit against him in OS No. 1746 of 1974 in the Court of the IV Assistant Judge, City Civil Court, Hyderabad, for ejectment and compensation for use and occupation of the suit accommodation. The fourth petitioner, Abad Cafe, and the fifth petitioner, Agha Hussain Zabet, were subsequently added as defendant Nos.2 and 3 in the said suit. Through the memo filed by the 5th respondent dated 1-4-1975, she had come to know about the death of the tenant Shaban Ali. On 5-8-1981, she withdrew the suit with permission to file a separate suit on the same cause of action and the certified copy of the impugned order is at Ex.P8. On 15-10-1981, she filed the suit against the petitioner Nos.1 to 5 and one Syed Ago Parsayan on the ground that the petitioner Nos.1 to 3 had committed wilful default in payment of arrears of rent from 1-9-1973 to 31-10-1981 amounting to Rs.29,303-20 ps., that deceased Shaban Ali had sub-let the suit accommodation to the petitioner Nos.4 and 5 and Syed Aga Parsayan, that the respondent-landlady bona fide requires the suit accommodation for starting the business of her son and that the petitioner Nos.1 to 3 have committed acts of waste which has impaired the materially the value and utility of the suit accommodation.
3. The petitioner No.5, claiming himself to be the general power of attorney holder of the petitioner Nos.1 to 3, denied the allegations made in the petition. It has been pleaded that the petitioner Nos. 1 to 3 are not the tenants of the respondent-landlady because they did not come within the purview of the definition of tenant under Section 2(ix) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Rent Control Act') as the suit accommodation is a non-residential accommodation. It has been further pleaded that Shaban Ali was entitled, as per the terms of the lease deed, Ex.P2, to carry on the business in partnership in the suit accommodation. He was carrying on the business in the name of Abad Cafe of which Syed Aga Parsayan was taken as one of the partners. It has been denied that late Shaban Ali had sub-let the suit accommodation to the petitioner Nos.4 and 5. The rent of the suit accommodation was duly tendered, but the respondent-landlady has refused to accept the same. It has been denied that the respondent-plaintiff requires the suit accommodation for starting the business of his youngest son namely Mohd. Mahmood Ali. It has been alleged that the respondent-plaintiff had other suitable non-residential accommodation in which she did not start the alleged business, but had let out the same to others. It has also been denied that any damage had been caused to the suit accommodation by the petitioners. It is alleged specifically that the petitioner No.5 was ever a partner in Abad Cafe, the petitioner No.4. It has been pleaded that the petition is bad for non-joinder of all the heirs of the deceased Shaban Ali. It has also been pleaded that the accommodation had been constructed between 1957 and 1963 and, therefore, the Rent Controller had no jurisdiction to entertain the petition by virtue of Section 32(b) of the Rent Control Act, though it was later struck down by the Supreme Court. The petitioner No.5 submitted a separate written statement taking almost similar pleas and alleging that he was not a partner in the partnership firm, Abad Cafe, and he has no concern with the suit accommodation, The petitioner No.4, Abad Cafe, did not file any separate counter.The said Syed Aga Parsayan expired during the pendency of the proceedings which stood abated against him.
4. The Rent Controller, on assessment of the evidence on record, found that the petitioner Nos. 1 to 3 have become the tenants of the respondent-landlady by operation of law, that the petitioner Nos.1 to 3 have committed wilful default in paying the arrears of rent, though the arrears of rent have been deposited in pursuance of the order passed under Section 11 of the Rent Control Act in IA No. 1387 of 1982, dated 30-4-1986, that the first petitioner had sub-let the suit accommodation to petitioner Nos.4, 5 and late Syed Aga Parsayan. The Rent Controller found that the respondent-landlady had failed to establish that she required the suit accommodation bona fide for starting the business of her son as also the fact that the petitioners have committed acts of waste due to which the value and utility of the suit accommodation have been diminished. Holding so, the Rent Controller order for eviction of the petitioners.
5. Feeling aggrieved by the impugned order, the petitioners have preferred appeal in RA No.272 of 1990. The respondent-landlord also filed appeal against the impugned order whereby the findings of the have been recorded against her in RA No.80 of 1990.
6. The appellate Court passed a common order and confirmed the findings recorded by the Rent Controller and dismissed both the appeals.
7. The petitioners have challenged the order of the appellate Court passed in RA No.272 of 1990, in this revision, whereby the order of their ejectment has been confirmed.
8. It is a matter of record that, during the pendency of this revision, thefifth petitioner namely Aga Hussain Zabet had expired and the petition, so far as the petitioner No.5 is concerned, stood abated.
9. Learned Counsel of the contesting petitioners has argued that, tenant has been defined in Section 2(ix) of the Rent Control Act. Where a tenant dies, the surviving spouse or his children become the tenants by operation of law only when it is established that they were living with him in the accommodation at the time of his death. The suit accommodation is a non-residential building and, therefore, it cannot be said that the petitioner Nos.1 to 3 were residing in the suit accommodation with late Shaban Ali at the time of his death. There was no privity of contract between the petitioner Nos.1 to 3 and the respondent-landlady and, therefore, it is not established that the petitioner Nos. 1 to 3 are the tenants of the respondent-landlady and on this count alone, the Rent Controller should have dismissed the petition for want of jurisdiction. It has been further argued that, on the own showing of the respondent-landlady, the suit accommodation was constructed after 26th August, 1957 and the petition has been filed on 15-10-1981. At the time of filing the petitioner, Section 32(b) of the Rent Control Act was in existence. Section 32 of the Act provided that the provisions of the Rent Control Act shall not apply, inter alia, to any building constructed on or after 26-8-1957. Therefore, at the time of the institution of the application, the Rent Control had no jurisdiction to try the case. The provisions of Section 32(b) of the Rent Control Act have been struck down by the Supreme Court on 26-10-1983 before the application for ejectment was decreed. By the date of filing the application, it was the civil Court that had jurisdiction to entertain and dispose of the suit for ejectment, particularly because the respondent-landlady had instituted the suit in the civil Court about seven years before 1981 and had obtained permission to file afresh suit on the same cause of action, vide certified copy of the order, Ex.P8. The rights of the parties were crystallysed according to law in force at that time and therefore, the respondent-landlady should have filed civil suit again in the civil Court. The appellate Court has wrongly held that in view of the striking down of Section 32(b) of the Rent Control Act by the Apex Court, the Rent Controller had jurisdiction to entertain the application which was filed after 10 years of the construction of the suit accommodation. Relying on the case of A.S. Sulochaua v. C. Dharmalingam, , learned Counsel of the contesting petitioners has argued that the predecessor-in-title of the contesting petitioners had sub-let the suit accommodation according to the respondent-land lady. Unlawful sub-letting is a penal provision which visits the tenant with the punishment of eviction. The subletting must be by the tenant himself sought to be evicted and not by his predecessor. Because it is alleged that late Shaban Ali had sub-let the suit accommodation, the contesting petitioners cannot be ejected on the ground of unlawful subletting. It has been contended by the learned Counsel of the contesting petitioners that there is evidence on record that arrears of rent were duly tendered to the respondent-landlady, but she has refused to accept the same. She had also filed the suit for ejectment and recovery of mesne profits after terminating the tenancy. Therefore, she was disentitled to plead that during the pendency of the suit, the petitioners have committed default in payment of the rent with the result that the contesting petitioners cannot be said to be wilful defaulters. Reliance has been placed on the case of Zohra Begum v. Suresh Chand, 1990 (1) APLJ 76 (SN). It has been lastly urged on behalf of the contesting petitioners that, both the Courts below have wrongly concluded that the deceased-petitioner was not holding, the general power of attorney on behalf of the contesting petitioners.
10. On the other hand, it has been contended by the learned Counsel of the respondent-landlady that, the petitioner Nos. 1 to 3 being admittedly the heirs of the deceased tenant Sliaban Ali, had become her tenant by operation of law. It is wrong to say that under Section 2(ix) of the Rent Control Act, only the legal heirs of the tenant who occupy residential accommodation become the tenants of the landlord after the death of their predecessor-in-title. The definition applies in the case of non-residential accommodation also. The rent was not tendered by the "contesting petitioners at any point of time and, therefore, it is wrong to say that the respondent-landlady has refused to accept the rent tendered by the petitioner Nos. 1 to 3 since the 5th petitioner, since deceased, was not the general power of attorney holder of the petitioner Nos.1 to 3 and according to the respondent-land lady, he was a sub-tenant. She had rightly refused to accept arrears of rent sent by him for the fear that in case the rent was accepted, he might be treated as her tenant. The appellate Court has rightly held that the contesting petitioners are wilful defaulters. He has lastly argued that the building was constructed before 26-8-1957 and, therefore, according to Section 32(b) of the Rent Control Act, the respondent-landlady was entitled to file the impugned application before the Rent Controller on 15-10-1981. Even if it is assumed that the suit accommodation was constructed after 26-8-1957, the Rent Controller had got jurisdiction to try the impugned application because Section 32(b) of the Rent Control Act had been quashed by the Supreme Court during the pendency of the proceedings and the subsequent event whereby Section 32(b) had been struck down by the Apex Court must be taken into consideration. The Court was competent to take into account the said fact to give appropriate relief. The Courts below have rightly found that the contesting petitioners are guilty of unlawful sub-letting of the suit accommodation to the fourth petitioner andits partner late Syed Aga Parsayan and late Aga Hiissain Zabet.
11. In the case of Ramanujam v. Venkat Rao, , it has been held that, where a tenant dies, his legal heir is entitled to claim tenancy rights by operation of law in respect of the premises for which the deceased was the tenant even though he does not come under any of the category of the persons enumerated in Section 2(ix) of the Rent Control Act. This right is conferred on a statutory tenant by virtue of the incident of heritability just as it is available in the case of a contractual tenant. Again in the case of Maddala Adi Lakshmi v. Majety Suryanarayana Murthy, 1986 (2) ALT 83, it has been held that the legal representatives of deceased tenant of non-residential premises are entitled to continue the tenancy. The case of Mootha Venkateswara Rao v. Bidharaju Nurayanararaju, 1978 (2) ALT 526, has been found to be no longer good law in this case on the strength of Gian Devi Anand v. Jeevan Kumar and Ors., . In the case of Gain Devi (supra), it has been held by the Apex Court that, "if the Rent Act defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Control Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant." In this case, the Apex Court observed that, a in the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect ofresidential premises. .... With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating her Stability of commercial premises have also been made whereas in some Rent Acts, no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death."
12. The position of law that emerges is that, the heirs of a deceased tenant become tenants by operation of law in respect of non-residential accommodation also. Therefore, there is no force in the contention of the learned Counsel of the contesting petitioners that they have not become the tenant of the respondent-landlady after the death of their predecessor-in-title namely Shaban Ali in the year 1967. It is also pertinent to note that the rent for the accommodation has been paid upto 31-8-1973. The said Shaban AH had expired in the year 1967. The act of making payment of rent of the suit accommodation by the contesting petitioners establishes that they had attorned the tenancy and for this reason also it can be safely concluded that the contesting petitioners were tenants of the respondent-landlady.
13. In Para 9 of the petition, it has been pleaded that Syed Aga Parsayan (who was arrayed as respondent No.5 in RC No.299 of 1981) has alleged in OS No.1746 of 1974 that the civil Court has no jurisdiction to try the suit. Therefore,permission was sought and granted to file afresh suit. Then, in Para 10 it is alleged that, the suit accommodation was constructed just before 26-8-1957 as contended by the said late Syed Aga Parsayan and in view of the aforesaid facts, the Rent Controller has got jurisdiction to try the case. In Para 10 of the counter filed on behalf of the petitioner Nos.1 to 3, it is alleged that the suit accommodation had been constructed between 1957 and 11-12-1963 and, therefore, the Rent Controller had no jurisdiction.
14. At the outset, it is to be remarkedhat there is concurrent finding of fact by both the Courts below that the fifth petitioner in this revision petition namely late Aga Hussain Zabet since deceased has been disbelieved that he held the general power of attorney on behalf of the petitioner Nos.1 to 3. 1 have gone through the evidence of late Agha Hussain Zabet who has been examined as RW 1. He had admitted in cross-examination that the power of attorney had not been signed in his presence. It was executed in Iran. Somebody had brought and delivered that power of attorney to him. He did not know the name of that person. He was not acquainted with the signatures of the petitioner Nos.1 to 3. Under these circumstances, no fault can be found out with the findings of the Courts below that the fifth petitioner late Agha Hussain Zabet was not holding the power of attorney on behalf of the petitioner Nos.1 to 3. Therefore, the counter cannot be looked into. Even otherwise, there is no evidence on record that the suit accommodation was constructed after 1957 and before 1963. True that in Para 4 of the plaint filed in OS No.1746 of 1974, a copy of which is at Ex.P4, it is alleged that permission to construct the suit accommodation was obtained in 1957 and the respondent-landlady had commenced the construction earlier and major portion of the building was completed in the year 1957. But, from this it cannot be concluded that the suit accommodation was constructedsubsequent to 26-8-1957. This is a vague allegation made in the plaint. The petitioner Nos.1 to 3 claimed that the suit accommodation had been constructed much after 1957. Therefore, the burden lay heavily on them to establish that since the suit accommodation had been constructed only after 26-8-1957, the petition should have been filed before the civil Court, by virtue of the exclusionary clause. This burden has been not at all discharged by the contesting petitioners.
15. In the case of Kantamsetti Bennayya v. Pandi Saraswalhi, , following the law laid down in the case of East India Corporation Limited v. Shree Meenakshi Mills Limited, , Ms. S.V. Maruthi, J., (as she then was), has held that, a civil Court has no jurisdiction to pass a decree for eviction when once the Supreme Court declared Section 32(b) of the Rent Control Act as unconstitutional, notwithstanding the fact that the suit was instituted at a time when Section 32(b) of the Act was in force. The learned Judge disapproved the view taken by Laxman Rao, J., (as he then was) in the case of S.A. Hakim Saheb v. P.V.K. Setty, 1989 (2) ALT 28, that a suit filed when Section 32(b) was on the statute book would be maintainable notwithstanding the subsequent invalidation of the section by the Apex Court because right of party to file eviction had crystallysed on the date of filing the suit and such right remains unaffected even after the quashing of clause (b) of Section 32 of the Rent Control Act by the Apex Court. Ms. S.V. Maruthi, J., (as she then was) held that in view of the later judgment of the Supreme Court in the case of East India Corporation (supra), the broad proposition laid down in the case of S.A. Hakim Saheb (supra) cannot be sustained. For similar reasons, Motilal B. Naik, J., in the case of Yadamma and another v. K. Mallesh, 1994 (2) ALR 304, has taken the same view as was taken by Laxman Rao, J., (as he then was). In the case of Kondadasu Ranga Rao v. Batchu Naga Venkata Satyanarayana, , A. Hanumanthu, J., (as he then was) has also agreed with the views expressed by Laxman Rao, J., (as he then was) and Motilal B. Naik, J. The view taken by Ms.S.V. Maruthi, J., (as she then was) has been endorsed by P. Venkatarama Reddi, J., in the case of Maram Venkata Subba Rao v. Nagasuri Koteswara Rao and others, . I am in complete agreement with the views expressed by Ms. S. V. Maruthi, J., (as she then was) and P. Venkatarama Reddi, J., because the decision of the Apex Court in East India Corporation (supra) was delivered subsequent to the judgment delivered in S.A. Hakim Saheb (supra) and the said judgment of the Apex Court was not brought to the notice of the learned single Judge in the case ofMorisetti Mohan Rao v. Tata Subbaiah and others, 1992 (1) An.WR 183, before Motilal B. Naik, J,, in the case of Yadamma (supra) and before A Hanumanthu, J., (as he then was) in the case of Kondadasu Ranga Rao (supra).
16. As noted above, the impugned application has been filed on 15-10-1981 and the Rent Controller has passed the impugned orders of ejectment on 6-7-1990. G.O. Ms. No.636 was issued under Section 26 of the Rent Control Act on 29-12-1983. The suit accommodation was constructed more than 10 years prior to the issuance of the said G.O. The case on hand is not, therefore, governed by G.O. Ms. No.636. Therefore, the law laid down in the case of R.K. Gupta v. Sartaj Karan, 1989 (1) ALT 551, is of no help to the contesting petitioners.
17. In the case of P. Venkateswarlu v. Motor and General Traders, , it has been held by the Apex Court that, for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord withthe current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed. It was further observed that, power to make note of subsequent events was not limited to the primary stage alone, but even the appellate or revisional Courts can exercise that power. In the case of Vineet Kumar v. Mangal Sain, , the building was not 10 years old on the date of the suit, but during the pendency of the case, it completed 10 years. Relying on the case of P. Venkateswarhu (supra), it is held in this case by the Apex Court that, the new U.P. Rent Act will be attracted if the building completes ten years during the pendency of the proceedings. Again in the case of M. Subba Rao v. P.V.K. Krishna Rao, , the Apex Court has held that the Court hearing the suit or appeal can take into account the events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately. A Division Bench of the. Bombay High Court in the case of Shiv Bhagwan v. Onkarmal, , and a learned single Judge of the Allahabad High Court in the case of Irfan Ahmad v. Abdul Wahid, , have observed that subsequent acquisition of jurisdiction by the civil Court had the effect of making the suit a proper suit before the civil Court despite the original want of jurisdiction.
18. On the authority of the law laid down by the Apex Court and the High Courts of Bombay and Allahabad, there appears to be force in the contention of the learned Counsel of the respondent-landlady that the change in law, that is to say the striking down of Section 32(b) of the Rent Control Act by the Apex Court, during the pendency of the case on hand, gives jurisdiction to the Rent Controller to decide the case, even if it is assumed for the sakeof arguments that it had no jurisdiction to try the case as on 15-10-1981.
19. For the reasons aforesaid, the contention of the learned Counsel of the contesting petitioners that, the Rent Controller had no jurisdiction to try the case and on this count itself the application for ejectment should be dismissed, is rejected.
20. It is an admitted fact that, the tenancy of the deceased Shaban All was terminated years after his death. The suit has been filed in OS No.1746 of 1974. Because the suit was filed against a dead person, it was not maintainable from its very inception. Therefore, it can be said that, neither there was valid termination of tenancy nor a validly instituted suit for recovery of compensation for use and occupation of the suit accommodation by the deceased tenant. Therefore, the case of Zohra Begum (supra) is distinguishable on facts. The contesting petitioners were not parties to that suit. For the reasons aforesaid, it cannot be said that, since the civil suit was filed for damages on the ground of non-deposit of rent, against the contesting petitioners in RC No.299 of 1981 they cannot be held liable for wilful default in payment of rent during the pendency of these proceedings. I have found that there was no valid tender of the arrears of rent by the contesting petitioners. They were admittedly in arrears of rent of Rs.32,903-20 ps. for the period from 1-9-1973 to 31-10-1982. This rent was deposited only after the orders had been passed by the Rent Controller on 30-4-1986 in IA No.1387 of 1982 under Section 11 of the Rent Control Act. Under these circumstances, the default committed by the contesting petitioners in depositing the rent is wilful default, vide Pabpathi Rathnamaiah Chetty v. Yalavaluri Ratnalingaiah, 1986(2) APLJ 357 (DB) and V.V. Krishna Vara Prasad v. S. Sitrya Rao and others, 1997(1) ALD 392.
21. For the foregoing reasons, disagreeing with the Courts below, I hold that the contesting petitioners have committed wilful default in payment ofarrears of rent from 1-9-1973 till 30-4-1986.
22. The respondent-landlady has alleged that the predecessor-in-title of the contesting petitioners had sub-let the suit accommodation to the firm Abad Cafe of which the deceased Syed Aga Parsayan and Aga Hussain Zobet were partners. On the authority of A.S. Sulochana (supra), I hold that the contesting petitioners cannot be said to have violated Section 10(2)(ii)(a) of the Rent Control Act and, therefore, the respondent-landlady is not entitled to seek their ejectment on the ground sub-letting. But, she is entitled to seek their eviction on the ground of wilful default under Section 10(2)(i) of the Rent Control Act.
23. In the result, I see no merit in the revision petition and, therefore, it is dismissed. Costs as incurred. As there is material on record that the contesting petitioners are permanently residing in Iran and both the Courts have found that no partnership had ever existed and the alleged partners are already dead. I am not granting time to the contesting petitioners for vacating the suit accommodation. The respondent-landlady is entitled to obtain possession of the suit accommodation by executing the impugned order of ejectment.