HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.NO. 2037 of 2007 DATED: 19.03.2010 BETWEEN: Nersu Bikshalu (died) and others .. Petitioners And Nausrunnisa Begum and others .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.NO.2037 of 2007 ORDER:- This revision petition is filed by the tenants/appellants against the judgment, dated 13.02.2007 in A.S.No.5 of 2005 on the file of the Senior Civil Judge, Avanigadda. 2. The landlady filed R.C.C.No.48 of 1992 before the Junior Civil Judge, Avanigadda under Section 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, (Act 25 of 1969) against the tenants seeking eviction on the ground that they committed willful default in payment of rents. The Rent Controller by his order dated 17.01.2005 allowed the petition and directed eviction of the tenants. Against the said order, the tenants preferred A.S.No.5 of 2005 which was disposed of by the Senior Civil Judge, Avanigadda by his judgment dated 13.02.2007 confirming the order of the Rent Controller. Assailing the correctness and legality of the judgment, the tenants preferred the present revision petition. 3. For the sake of convenience, the parties will be referred to as ‘the landlady and the tenants’. 4. I have heard the learned counsel appearing for the tenants as well as the landlady. 5. Admittedly, the landlady is the owner for the shop bearing door No.5-B-96 situated in the main Bazar, facing Machilipatnam, Nagayalanka Road at Challapalli Village. The tenancy commenced in the year 1975. The first respondent, (since died) obtained the premises on lease from the landlady and admittedly the tenancy is oral. 6. According to the landlady, the agreed rent initially was Rs.150/- per month excluding electricity charges and the first respondent committed default in payment of rents in January, 1989 and thereafter, he became due of electricity charges to the electricity board to a tune of Rs.8,000/- till the end of 1990. The landlady got issued a legal notice to the first respondent demanding to pay the arrears of rent and electricity charges and also to vacate the premises. According to the landlady, the first respondent also undertook to pay the electricity consumption charges every month. It is the version of the landlady that after issuance of the said registered notice, there were discussions and the first respondent executed a letter on 27.06.1990 undertaking to pay the arrears of rent and electricity charges and also agreed to pay enhanced rent of Rs.250/- from 01.07.1990 onwards, but he failed to pay the same. By the end of October, 1992, an amount of Rs.3,750/- became due and when demanded, the first respondent again agreed to pay the enhanced rent of Rs.350/- and subsequently he did not pay the arrears of rent and the electricity consumption charges, in spite of several demands. Ultimately, according to the landlady, the amount accumulated to a tune of Rs.15,000/-, and thereafter, the landlady sent a copy of the registered notice on 17.08.1992 which the first respondent refused to receive. Ultimately, the landlady filed R.C.C.No.48 of 1992 before the Rent Controller. 7. It was the contention of the first respondent before the learned Rent Controller that initially the rent is Rs.150/- excluding electricity charges, but he never agreed to pay any enhanced rent. That he did not commit any default either in paying the monthly rent or the electricity consumption charges. He admitted issuance of registered notice by the landlady, but denied to have executed a letter on 27.06.1990 undertaking to pay the arrears of rent and electricity charges of July, 1990 and also to pay the enhanced rent of Rs.250/- from 01.07.1990 onwards. It was further contended by the first respondent that there was a fire accident occurred in the month of March, 1991 in which the schedule mentioned premises was burnt and though the first respondent informed the same to the landlady and her husband, they did not respond for some time and ultimately, they came and asked the first respondent to repair and remodel the premises by investing money and since the tenant could not afford to spend money for the repairs, the landlady promised to deduct the rent from the invested amount for repairs. According to the first respondent, he spent an amount of Rs.10,500/- for repair works and remodeling the premises and further from March, 1991 to July, 1991 the tenants need not pay the rent since the premises were kept vacant during which time the repairs were rendered. It is his further contention that he used to deduct the rentals every month from the amount of Rs.10,500/- spent by him as per the promise made by the landlady. Thus, according to him, he is not at all a defaulter and he is not liable for eviction. 8. Before the learned Rent Controller PW.1 is examined and Exs.A.1 to A.5 were marked on behalf of the landlady. RW.s1 to 5 were examined but no documents were marked on behalf of the tenants. 9. Upon considering the entire evidence on record, both the Courts below concurrently held that the tenants committed willful default in payment of rent and are liable for eviction. 10. Now the point for determination in this revision is whether there are any valid grounds to interfere with the findings of the Rent Controller and the appellate authority by exercising powers of revision under Section 22 of the A.P. Buildings (Lease, Rent & Eviction) Control Act. 11. The main contention urged on behalf of the tenants is that though the landlady contended that there was an agreement which was reduced into writing on 27.06.1990 wherein the first respondent/tenant agreed to pay the enhanced rent at Rs.250/-, the landlady failed to produce the said agreement, he is not liable to pay the enhanced rent and therefore, the Courts below erred in holding that the tenants committed willful default in payment of rent. It is true that the landlady did not produced any such agreement, but both the Courts below have held that though, it is a lapse on the part of the landlady, her entire case cannot be thrown out by mere non-production of the said agreement and the Courts below had taken into consideration the failure on the part of the tenants to adduce any evidence regarding alleged fire accident and also any document produced by them in respect of the expenditure incurred for rendering the repairs of the building after the alleged fire accident. The oral evidence adduced by the tenants in support of their version was rightly rejected by the Courts below holding that the said evidence is not reliable, in the absence of any documentary proof. However, it is the contention of the tenants that even according to the landlady she was in the habit of receiving meager payment of rents and therefore, it is not open for her to contend that there is any willful default and the conduct of the landlady debars her from seeking eviction on the ground of willful default in payment of rent. 12. In the instant case, since the eviction was sought by the landlady on the ground that the tenants committed willfully default in payment of rent, the burden is on the tenants to establish that there was no willful default on their part. Except, mere contention, no reliable evidence was adduced by the tenants to support their plea that the landlady and her husband promised them to deduct up the arrears of rent and electricity charges from the amount incurred by the tenants to repair the schedule mentioned premises damaged in the fire accident. They did not file a copy of the report lodged in the police nor any other reliable documentary evidence in proof of the fire accident. This apart, except their oral evidence, there is no reliable documentary evidence in proof of the fact that there was agreement either for conducting repairs or for deducting the rentals from the amount which was incurred for conducting the repairs of the schedule mentioned premises. As already stated, there is also no documentary evidence in proof of the expenditure incurred for conducting repairs. In the absence of any such proof, it is highly difficult to believe that the tenants incurred an expenditure of Rs.10,500/- for conducting the repairs of the said building. Admittedly, it is not the version of the tenants that they have been regularly paying even the agreed rent. They had set up the plea of themselves conducting the repairs to the schedule mentioned premises after the fire accident on the permission given by the landlady, but failed to establish the same by any cogent evidence which fact had been noticed by both the Courts below, which ultimately lead to the concurrent findings in regard to the willful default. Since the tenants failed to prove that even they are paying/depositing the agreed rent of Rs.150/-, absolutely, there is any amount of justification on the part of the Courts below to arrive at a positive conclusion that there is willful default in payment of rent committed by the tenants. From the mere assertion made by the landlady that after issuance of the registered notice by her, the first respondent agreed to pay the enhanced rent at the rate of Rs.250/- and Rs.300/- respectively a presumption of acquiescence on the part of the landlady cannot be drawn. 13. It is true that revisional jurisdiction of this Court under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act is much wider than the powers of revision under Section 151 CPC, but the powers of this Court while acting in revisional jurisdiction under Section 22 of the Rent Control Act cannot be equated to the powers of the Appellate Court. This is not a case wherein both the Courts below gave erroneous findings contrary to the evidence forthcoming. The findings are based on evidence and reasoning. Even if the Court of revision comes to a different conclusion, the concurrent findings of fact and law arrived at by the trial Court cannot be upset in exercise of the powers under Section 22 of the Rent Control Act, unless and until they are either perverse or not based on evidence forthcoming before them. As such there is no illegality or irregularly committed by the Courts below in arriving at the conclusion that there is willful default committed by the tenants in payment of rents and those findings cannot be interfered with in exercise of powers under Section 22 of the Rent Control Act by this Court. 14. For the foregoing reasons, the findings of the Courts below are affirmed, the revision therefore, fails and accordingly, the same is dismissed without any order as to costs. The tenants/revision petitioners are directed to vacate the schedule mentioned premises within one month from the date of receipt of a copy of this order. _______________ R. KANTHA RAO, J Date: 19.03.2010 kvrm