IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 4 9 1 3 OF 2009 Between: A. Bhadraiah (died) Per LRs. Petitioners 2 to 6 … Revision Petitioners V/s. K. Eswaramma, w/o Late K. Nagabhushnam, R/o H.No. 1-8-779, Prakash Nagar, Begumpet, Hyderabad. … Respondent Counsel for the Revision Petitioners: Sri S. SRIDHAR Counsel for the Respondent : Sri Manu THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION NO: 4 9 1 3 OF 2009 O R D E R : Aggrieved of the judgment and decree dated 21- 8-2009 passed in R.A.No. 203 of 2007 by the learned Chief Judge, City Small Causes Court, Hyderabad, confirming the order and decree dated 23-01-2007 passed in RC.No. 57 of 2003 by the Additional Rent Controller, Hyderabad, this Civil Revision Petition is filed. 2. For the sake of convenience, the parties to this Civil Revision Petition hereinafter will be referred to as they are arrayed in RC.No. 492 of 2002 i.e., respondent will be referred to as the petitioner and revision petitioner will be referred to as the respondent. 3. The facts of the case are that the petitioner-landlady filed petition under section 10 (2) (i) and 10 (3) (a) (iii) (a) of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 seeking eviction of the respondent from the petition schedule premises on the ground that the respondent committed wilful default in rental payments and that she bonafidely requires the petition schedule mulgi for the business of her son. It is stated that she is the landlady of the petition schedule mulgi and the respondent is a tenant. The mulgi was bequeathed in her favour by her husband late K.Nagabhushnam by will dated 12-2-1997. It is stated that the respondent is the tenant in the mulgi since 01-1-1975 on a monthly rent of Rs.125/- payable on or before 5th of each month as per English Calender. It is stated that the mulgi was let out by her husband in favour of respondent under rental agreement dated 01-1-1976 valid for 11 months. After expiry of the period of tenancy, the respondent agreed to abide by the terms of the said rental agreement and the husband of the petitioner and the first respondent continued the tenancy on periodical increase of monthly rent and the present rent is at Rs.500/- per month fixed in the month of December 1994. It is stated that the payment of monthly rents were entered in two small dairies, one for the record of late Sri K.Nagabhushnam and another for the record of the respondent. The first respondent paid rents for the petition schedule premises on 18-11-1999 and at last failed to pay rents even after the demands made by late Sri K. Nagabhushnam. After the death of late K.Nagabhushnam also the respondent failed to pay the rents for the mulgi and the respondent owes a sum of Rs.20,500/- as arrears of rent for 41 months from December 1999 to May 2003. It is stated that the petitioner caused issuance of layer’s notice dated 23-5-2003 but the respondent did not clear rental arrears and failed to vacate the schedule premises and did not reply to the notice. According to the petitioner, the respondent is a wilful defaulter in payment of rents and liable to be evicted from the petition schedule premises. The husband of the petitioner requested the respondent to vacate the mulgi during his life to enable his younger son K. Praveen Kumar to start his business but the respondent failed to vacate the petition schedule mulgi with malafide and dishonest intentions. According to the petitioner, her younger son is carrying on business in a rented premises and his landlord is requesting to vacate the same and the mulgi in which the said K.Praveen Kumar is carrying on business is enlisted for demolishing for road widening purposes. Further it is stated that the petition schedule mulgi is suitable for the business of gold smith of the petitioner’s son. It is also stated that the petitioner does not own any other non-residential building in twin cities of Hyderabad and Secunderabad and the petitioner bonafidely requires the mulgi for the business of her son. It is also stated that during the pendency of the case the respondent No.1 had expired and the petition was amended seeking direction for eviction of the respondent No.1 and his legal heirs. 4. The respondent No.1 entered his appearance and filed counter denying the averments made by the petitioner in her petition. It is averred that during the pendency of the matter, the first respondent died and respondents 2 to 6 were brought on record and respondents 2, 5 and 6 were set exparte. However, the memo was filed adopting the counter of first respondent for respondents 2 to 4. The respondents admitted that they are the tenants in the petition schedule premises and as per respondents they have paid rents regularly without any default to the husband of the petitioner till November 1999 and when the husband of the petitioner expired the respondent No.1 was paying rents to the son of the petitioner from December 1999, as per the direction of the petitioner. According to the respondents, the petitioner’s eldest son was receiving rents on behalf of the petitioner as per her instructions. It is averred that the respondent paid rent till May 2003 to the eldest son of the petitioner, who made an entry in the note book maintained by the respondent but the eldest son of the petitioner, Sri Tirumala Rao, returned Rs.500/- rent for the month of May 2003 and requested the respondent to pay the rents to the petitioner directly by money order. It is averred that the respondent sent rent of Rs.500/- by way of money order to the petitioner but the same was refused by the petitioner without any reason. It is averred that the petitioner refused to receive the money order sent for the months of May, June and July 2003. According to respondent, the present case has been filed to harass the respondent and the respondent has filed a petition under section 11 of the AP Buildings (Lease, Rent & Eviction) Control Act, 1960 for deposit of rents from May 2003 onwards. Further it is averred that the respondent is not wilful defaulter in payment of arrears of rent of Rs.20,500/- from December 1999 to May 2001. It is averred that the respondent has paid Rs.50,000/- as deposit as per the instructions of the petitioner, which was acknowledged by the eldest son Sri Tirumala Rao. It is also averred that the petitioner does not require the petition schedule mulgi bonafidely for her son’s business and as per the respondent the requirement of the petition schedule mulgi is not bonafide and intended only for the purpose of evicting the respondent. Hence, the petition is devoid of merits and the same is liable to be dismissed. 5. On the basis of the rival contentions, the trial court framed the following points for consideration: (1) Whether the petitioner is entitled to seek eviction of the respondent from the petition schedule premises on the ground that the respondent has committed wilful default in payment of rents ? (2) Whether the petitioner is entitled to seek eviction of the respondent from the petition schedule premises on the ground that she requires the petition schedule premises for bonafide self occupation for the business of her son ? (3) To what relief ? 6. To substantiate her case, the petitioner examined PWs 1 and 2 and marked Exs.P1 to P11 and Exs.X1 to Ex.9. As against two letters under Exs.X7 and Ex.X8 being marked and received in evidence, the respondent filed CRP.No.4450 of 2005 before the High Court, which was allowed and setting aside the orders of the trial court of receiving the said letters in evidence. Therefore, the trial court did not consider the same in the present case. In the absence of Exs.X7 and X8, Ex.X9 postal cover has no evidentiary value. On behalf of respondents RWs.1 to 3 were examined and Exs.R1 to R6 were marked. 7. On appreciation of both oral and documentary evidence adduced by both the parties, the Additional Rent Controller answered all the above points in favour of the petitioner and against the respondents and allowed RC.No.57 of 2003 by an order dated 23-1-2007 which was filed under section 10 (2) (i) and 10 (3) (a) (iii) (a) of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 seeking eviction of the respondent from the petition schedule premises on the ground that the respondent committed wilful default in rental payments and that she bonafidely requires the petition schedule mulgi for the business of her son and directed the respondent-tenant to vacate and handover vacant possession of the petition schedule mulgi to the petitioner within two months from the date of the order. 8. Aggrieved by the order and decree dated 23-1-2007 passed in RC.No. 57 of 2003 by the Additional Rent Controller, the landlady filed RA.No. 203 of 2007 on the file of the Court of Additional Chief Judge, City Small Causes Court, Hyderabad, contending that the trial court did not take into consideration the evidence on record to show that her husband and respondent No.1 are good friends and that the respondent No.1 had knowledge of Ex.P1 in the month of February 2000 itself, while the details of Ex.P1 were revealed to the friends and relatives to attend the 11th day function of late K.Nagabhushnam. She further contended that the learned Rent Controller erroneously came to the conclusion that there is no convincing evidence on record to show that the landlady immediately informed the tenants about herself alone being entitled to receive the rents ignoring the important aspect about the tenant failing to find out whom the rents has to be paid immediately on the death of late K.Nagabhushnam. She also contended that the trial court erroneously relied on Ex.R1 and Ex.R3, which go to establish with the collusion of tenants and her eldest son. Further the trial court failed to take into consideration that in spite of receipt of Ex.P4 even as on today the arrears of rent for the period from December 1999 to May 2003 have not been paid to her. Hence she prayed to allow the appeal by setting aside the impugned order passed by the Rent Controller. 9. On the other hand, the contention of the tenant is that the elder son of the landlady received rents and made endorsement in a book maintained by the tenant and the same was marked as Ex.R4. According to the admission of PW.1 there is no default during the period of the-then landlord. Thereafter, the elder son used to collect the rents and he also contended that there is no intimation about the change of ownership till the receipt of notice issued by the landlady on 23-5-2003 and in the absence of any such notice, non-payment of rents to the landlady does not amounts to a wilful default. It is further contended that the rent for the months of June and July send through money order but the landlady refused the same. Therefore, he deposited the rents by filing petition under section 11 (1) before the trial court. Moreover, the elder son of the landlady received Rs.50,000/- as security deposit and also Rs.2,00,000/- as part payment of sale consideration of the present mulgi and acknowledged the receipt of same under Ex.R3. Hence, there is huge amount in the hands of the elder son of the landlady and prayed to dismiss the appeal. 10. After hearing both sides, upon considering the rival contentions as well as on perusing the record, the learned Additional Chief Judge framed the following point for consideration: Whether the tenants committed default in payment of rents from December 1999 to May 2003 @ Rs.500/-, if so, does it amounts to wilful default, if so, the tenants are liable to be evicted from the petition schedule premises ? 11. On re-appreciation of both oral and documentary evidence placed on record, the learned Additional Chief Judge observed that PW.1 admitted in the cross-examination that her husband never complained to her that the tenant committed default in paying rents. The evidence of PW.1 clinchingly shows that after the death of her husband on 30-1-2000 the landlady informed the execution of will by her husband to the tenant orally and requested to pay the rents but she did not intimate the same in writing. PW.1 admitted that there are two tenants apart from his eldest son in Pan Bazaar house and she directed her elder son to collect rents from his two tenants in pan bazaar for livelihood from the date of death of her husband. Except the above said admission, there is no evidence on record to show that the landlady directed the present tenant to pay the rents to her elder son. She denied the suggestion that the tenant is paying the rents to her elder son in view of good relation with her elder son. Thus, the learned Judge held that the tenant himself paid the rents as friend to her elder son without any consent of the landlady. On the other hand, the tenant who was examined as RW.1 admitted in his cross-examination that he had not filed any receipt or any other document to prove that he paid Rs.50,000/- to Tirumala Rao by his father, A. Bhadraiah and also admitted that in Ex.R3 the payment of Rs.2 lakhs to Tirumala Rao is also not mentioned and that he admitted that he did not file any document in proof of payment of Rs. 2 lakhs to Tirumala Rao. Ex.R4 goes to show that the entries from 06-3-2000 onwards till May 2003 even after knowing the change of ownership, the tenant paid the rents to the elder son of the landlady as his friend without her any prior consent. Once the tenant knows about the change of ownership, after the death of the-then landlord, it is sufficient to conclude that there was proper intimation about the change of ownership to the tenants. The learned Judge further observed that tendering rents after the death of the-then landlord on 30-1-2000 to the elder son of the landlady is not proper tender and it is settled law that if the tenant intentionally and deliberately tendered the rents to a person other than the landlord knowing fully well about the change of ownership it amounts to a wilful default. In view of the above discussion, the learned Chief Judge held that the learned Rent Controller erroneously came to a conclusion that there is no intimation of change of ownership, the tenant only came to know about the change of ownership after receiving the notice issued by the land lady on 25-3-2005 under Ex.P4 and erroneously came to a conclusion that the tenant properly paid the rents to the elder son of the landlady. Hence, the order of the Rent Controller is against the evidence on record and the same is liable to be set aside. Accordingly, the learned Chief Judge allowed the appeal and directed the tenants to vacate and handover the vacant possession of the petition schedule premises within two months from the date of the order. 12. Aggrieved thereby, the tenants filed the present Civil Revision Petition contending that the learned Additional Chief Judge erred in not observing that admittedly the respondent authorized RW.2, who is no other than her elder son to collect the rents in respect of leased premises of Pan Bazaar for her livelihood, which shows that RW.2 was authorised to collect the rents from the tenants and as such, the rents paid by the petitioners to RW.2 for the period from December 1999 till May 2003 cannot be termed as default much less wilful default. Secondly it is contended that the learned Additional Chief Judge erred in not observing that absolutely there is no material on record to show that the first petitioner has knowledge about the entitlement of the respondent to receive the rents exclusively and as such was paying the rents under acknowledgment to RW.2, who is no other than the elder son of the respondent. Thirdly, the learned Additional Chief Judge erred in not observing that admittedly, the respondent did not issue any notice asking the first petitioner to pay rent only to her exclusively till 23-5- 2003 obviously for the reason that she authorized RW.2 her elder son to collect the rents. Fourthly, it is contended that the learned Additional Chief Judge erred in not observing that admittedly during the life time of her husband her husband used to collect the rents regularly by signing in a book and after his death RW.2 started collecting the rents under Ex.R4 acknowledgement till May 2003 and from May 2003 onwards rent has been deposited in the court, as the respondent admittedly refused to receive the money order and as such, there is default much less wilful default in payment of rents by the first petitioner. 13. At the hearing the learned counsel for the Revision Petitioners-tenants has raised several contentions but this court suggested the learned counsel for the revision petitioners that sufficient time will be granted to the revision petitioners-tenants to vacate and handover the petition schedule premises. The learned counsel for the revision petitioners-tenants also fairly concedes and sought reasonable time to vacate the petition schedule premises. 14. Considering the submissions made by the learned counsel for the revision petitioner-tenant, on perusing the oral and documentary evidence placed on record and concurrent judgment of both the courts below and more particularly the undertaking furnished by the revision petitioners praying this court to grant six months time to vacate the petition schedule premises, bearing No. 1-5-55, Ward No.1, Circle No.7, Dhan Bazaar, Secunderabad, this court deems fit and proper to grant six months time and further directed the revision petitioners to vacate the petition schedule premises and handover the same on or before 30-06-2010 to the respondent-landlady, failing which the respondent-landlady is at liberty to get vacate the revision petitioners-tenants from the petition schedule premises by due process of law and if necessary seek police aid. However, the revision petitioner is further directed that he shall not renew his request hereafter seeking further extension of time to vacate the petition schedule premises. 15. With the above direction, the Civil Revision Petition is dismissed at the stage of admission. No costs. ______________________ JUSTICE T. MEENA KUMARI 04-12-2009. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 4 9 1 3 OF 2009 Circulation Entry No. 8 4 Date: 04-12-2009 Computer No. 43 Court Master : I s L