IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION Nos.3812 and 4008 OF 2008 BETWEEN Jayanthilal N. Kothari and two others. …PETITIONERS AND Madan Mohan Das Shah and three others. …RESPONDENTS Counsel for the petitioners: MR. PRABHAKAR SRIPADA Counsel for the Respondents: MR. B. VIJAYSEN REDDY The Court made the following: - COMMON ORDER: These two revisions are at the instance of the tenant against the order of eviction as passed by the learned Principal Rent Controller, Secunderabad in R.C.No.25 of 1996 dated 04.05.1999 and as confirmed in part by the learned Additional Chief Judge, City Small Causes Court, Hyderabad in R.A.No.159 of 1999 dated 17.07.2008. 2. For the sake of convenience the petitioners herein are referred to as tenants and respondent No.1 herein is referred to as landlord and respondents 2 to 4 are referred to as purchasers/landlords. 3. The eviction case R.C.No.25 of 1996 was filed by the landlord on the grounds of tenant committing willful default in payment of rent from November 1991 to December 1995 at the rate of Rs.525/- per month; bonafide personal requirement for self-occupation and tenant securing alternative accommodation. The learned Rent Controller rejected the grounds of bonafide personal requirement and tenant securing alternative accommodation but ordered eviction on the ground of willful default, as claimed. Aggrieved thereby, the tenant preferred R.A.No.159 of 1999 whereas the landlord filed Cross Objections (SR).No.8666 of 1999 before the lower appellate Court therein to the extent of urging the ground of bonafide personal requirement and the tenant securing alternative accommodation. During the pendency of the rent appeal, the original landlord sold the schedule premises in favour of respondents 2 to 4 herein under Exs.P7 to P9 – all registered sale deeds dated 16.08.2001. The original landlord also executed supplementary deeds dated 31.01.2002 marked as Exs.P10 to P12 whereunder the rent from November 1991 to December 1995, which is the subject matter of claim on willful default was also assigned to the purchasers/landlords under the aforesaid supplementary deeds. 4. The impleadment of the purchasers/landlords was questioned by the tenant by approaching this Court in CRP.No.5613 of 2002. The same was, however, dismissed. Thereafter, the purchasers/landlords as well as the tenant have sought amendment of the eviction petition by adding para 5 (a), (b) and (c) to the eviction petition wherein with reference to the subsequent sale in favour of the purchasers/landlords it was claimed that as the arrears of rent were specifically assigned to the purchasers under the supplementary deeds – Exs.P10 to P12, the purchasers/landlords are entitled to prosecute the eviction petition with respect to the ground of willful default, as alleged in the eviction petition. It was also pleaded that though the tenant was intimated to pay the rents to the purchasers/landlords under letter dated 22.10.2001, the tenant did not pay the rents but gave a reply dated 30.10.2001 stating that the rent from October 2001 to March 2002 is deposited to the credit of R.C.No.189 of 1992 (filed by the tenant for deposit of rents wherein the original landlord alone is a party). The purchasers/landlords, therefore, claimed that after intimation of purchase by the present landlords the deposit of rent by the tenant for the subsequent period to the credit of R.C.No.189 of 1992 amounts to willful default. The purchasers/landlords also claimed bonafide personal requirement for first of the purchasers that he intends to demolish and reconstruct the residential premises and godown for his business. From the record it appears, however, that no additional counter was filed by the tenant to the extent of the said amended grounds. 5. From the above developments, evidently, the cross objections of the landlords before the lower appellate Court being on the ground of personal requirement as pleaded by the original landlord became infructuous. The counsel for the landlord also filed a memo dated 20.06.2008 stating that the original landlord does not press the ground of securing alternative accommodation and in view of that the cross-objections filed by the landlords on both the said grounds did not survive for consideration. The lower appellate Court, therefore, framed the following points for consideration: 1. Whether the tenants committed default in payment of rent from November 1991 to December 1995 as alleged by the original landlord and whether the subsequent purchasers of the petition schedule premises are entitled to seek eviction on the same ground, does it amounts to willful default, if so, the tenants are liable to be evicted from the petition schedule premises? 2. Whether the tenants committed default in payment of rents August 2001 to March 2002 @ Rs.525/- p.m. as alleged by the present landlords, does it amounts to willful default, if so, the tenants are liable to be evicted from the petition schedule premises? 3. Whether the present landlords require the petition schedule premises for the purpose of commencing their business is bona fide or not, if so, the tenants are liable to be evicted from the petition schedule premises? 4. Whether the tenants will be put to hardship which will outweigh the hardship of landlords? 6. On consideration of the case of both the parties, the plea of willful default, however, was rejected and on point No.1 it was held that though the tenant committed willful default, the original landlord received the rents by way of cheque petition and as such, even if there was assignment of arrears of rent in favour of purchasers/landlords under Exs.P10 to P12, as no arrears were due, the purchasers/landlords are not entitled to seek eviction of the tenant on that ground on the basis of Exs.P10 to P12. On point No.2, the lower appellate Court found that the subsequent default alleged to have been committed by the tenant in not paying the rents to the purchasers/landlords was upheld in favour of the landlords and on point No.3, the lower appellate Court held that the requirement pleaded by the purchasers/landlords is bonafide and answered the point in favour of purchasers/landlords by negativing the relative hardship of the tenant. The present revisions are directed against the said order of the lower appellate Court. 7. Heard Mr. Sripada Prabhakar, learned counsel appearing for the tenant and Mr. B. Vijaysen Reddy, learned counsel appearing for the landlords. 8. Both the learned counsel have placed before the Court the relevant record including the portions of the evidence on which both of them relied upon. Before the lower appellate Court, not only the amendment of the pleadings has taken place but also, further, oral and documentary evidence have been led. While P.W.3 is examined for the purchasers/landlords in appeal, R.W.1 was recalled and his further evidence was recorded. On behalf of the landlords Exs.P7 to P22 were marked whereas on behalf of the tenant Exs.R19 to R30 were marked. Among the documents marked by the landlords in appeal, the following are the important documents. Exs.P7 to P9 – registered sale deeds dated 16.08.2001; Exs.P10 to P12 - supplementary deeds dated 31.01.2002; Ex.P14 – special power of attorney in favour of P.W.3 apart from attornment notice – Ex.P15 dated 22.10.2001 and reply by the tenant – Ex.P16 dated 30.10.2001. On behalf of the tenant, R.W.1, who was recalled, marked Exs.R20 to R30, which are certified copies of eviction petitions and orders passed thereon said to have been filed by P.W.3, his son and his wife against the tenants of their other properties, which has relevance to the issue of personal requirement pleaded by the purchasers/landlords. 9. One of the contentions raised by the learned counsel for the tenant is with respect to the ground of personal requirement pleaded by the purchasers/landlords before the lower appellate Court and the eviction ordered by the lower appellate Court on that ground. It is contended that the cause of auction for seeking the said personal requirement, if any, arises only after the new landlords purchased the premises on 16.08.2001 under Exs.P7 to P9. On the basis of the said cause of action, therefore, at best a fresh eviction petition could lie but the purchasers/landlords cannot set up their plea of personal requirement for the first time in the lower appellate Court directly. Learned counsel, therefore, states that the lower appellate Court committed serious error in considering the said requirement and ultimately giving a finding in favour of the purchasers/landlords. He also contended that subsequent default, which is also one of the amended grounds urged by the purchasers/landlords and on which point No.2 was framed by the lower appellate Court, is also not sustainable inasmuch as, as per the Full Bench decision of this Court in VINUKONDA VENKATA RAMANA v. M. VENKATESWARA RAO[1], it is held that unless the landlord resorts to the procedure under Section 11 of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short ‘the Act’), he cannot agitate the ground of subsequent default in the same eviction petition. 10. I have considered both the said submissions and prima facie, I found apparent merit therein. Insofar as point No.3 – personal requirement of purchasers/landlords is concerned, it is, undoubtedly, a subsequent cause of action arising only after the date of purchase. Under Section 10 of the Act no tenant shall be evicted except by filing an application on one of the grounds as enumerated under Section 10 of the Act. The ground relating to bonafide personal requirement being one of the grounds provided under Section 10 of the Act, eviction can be sought for only by approaching the learned Rent Controller under Section 10 of the Act. Prima facie, the said ground cannot for the first time be taken in an appeal in the absence of any adjudication thereof by the learned Rent Controller. Apart from the fact that one of the parties would lose a right of appeal with respect to such ground, the appellate Court, as in the present case, has for the first time adjudicated upon an entirely new ground without there being any adjudication by the learned Rent Controller on a petition under Section 10 of the Act. However, as neither of the parties nor the Court below has addressed itself on the aforesaid aspect and in order to give a fair opportunity to both the parties to make their submissions on this aspect viz. the tenability of such plea in appeal and if so, whether the said ground can be upheld in favour of the landlords, the point is remitted to the lower appellate Court for fresh consideration. 11. Similarly, the subsequent default, as claimed by the landlords from August 2001 to March 2002, is not tenable for two reasons viz. (1) the decision of the Full Bench in VINUKONDA VENKATA RAMANA’s case (1 supra) negatives subsequent default being enquired into in the same eviction petition in the absence of any proceedings taken by the landlord under Section 11 of the Act. There is no evidence on record that the landlord had filed any such application and in any case, such ground relates to the period subsequent to the sale of the property and an event, which occurred pending the appeal. (2) A fresh cause of action arising out of a fresh default after the present landlords purchased the property, may also form part of a fresh eviction petition under Section 10 of the act but cannot be telescoped into the appeal arising out of earlier eviction petition. The finding of the lower appellate Court on point No.2 is clearly impermissible in view of the ratio laid down in the decision of the Full Bench referred to above and is accordingly set aside. 12. To the extent of point No.1 relating to willful default from November 1991 to December 1995, the records disclose that the tenant had filed R.C.No.189 of 1992 before the Additional Rent Controller, Secunderabad seeking to deposit the rents. A copy of the order thereof was produced and marked as Ex.R1. The said application filed by the tenant under Section 8(5) of the Act related to seeking permission to deposit rents from 01.11.1991 up to date. By order of the learned Rent Controller dated 08.02.1993 the said RC was allowed. The tenant accordingly is said to be depositing the rent to the credit of the said RC. The lower appellate Court, however, has extracted the said order in para 20 of it’s judgment as if the direction was to deposit rents from 01.11.1992. I have verified Ex.R1 from the record and the extract of Ex.R1 found in page 20 aforesaid of the lower appellate Court’s order appears to be wrong as the said RC permitted the tenant to deposit the rent from 01.11.1991 and not 01.11.1992 as understood by the lower appellate Court. The said period for which deposit was allowed is clearly the period covered by the default period in question in the original eviction petition. 13. I have also found another mistake committed by the lower appellate Court in noting on the basis of Ex.R19 that the tenant deposited the rents as per Ex.R1 order for the first time on 21.02.1994 and consequently, the lower appellate Court came to the conclusion that the tenant committed willful default. I have seen the xerox copy of Ex.R19, which is ledger extract maintained in R.C.No.189 of 1992, which shows that the tenant deposited the rents from November 1991 to October 1992 totaling to Rs.6,300/- vide challan No.07317 dated 29.10.1992. These entries appear to have been made in the register on 21.02.1994. The lower appellate Court mistakenly has taken the said date as the date for deposit without noticing that the challan number and date of deposit are separately mentioned below the words from November 1991 to October 1992. The finding of willful default reached by the lower appellate Court against the tenant is, therefore, clearly based upon the said two error committed by it. 14. I am, therefore, of the view that the said factual errors committed by the lower appellate Court warrants that the impugned order be set aside. The rent appeal is accordingly remitted to the lower appellate Court for fresh consideration on point Nos.1, 3 and 4 as framed under the impugned order by giving opportunity to both parties to address on the points, as above. The lower appellate Court, however, shall decide the appeal afresh on or before the end of December 2010. The civil revision petitions are accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 20, 2010 Note: Registry to send back the records to the lower appellate Court along with the copy of this order within one week. (B/o) DSK [1] 2001 (5) ALT 479 (F.B.)