IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 1 4 8 OF 2009 Between: Khaja Khan s/o Mehtab Khan, aged about 50 years, Occupation: Business, r/o Property adjacent to 22-3-939, Dabeerpura Road, Hyderabad. … Revision Petitioner V/s. B. Chitti Babu s/o Borra Venkataratnam, aged about 62 years, r/o H.No. 22-3-942, Inside Dabeerpura, Hyderabad & Anr. … Respondents Counsel for the Revision Petitioner: M/s B. Narasimha Sharama & G. Rajesham Counsel for the Respondents : Sri Nimmagadda Satyanarana THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION NO: 5 1 4 8 OF 2009 O R D E R : Aggrieved of the judgment dated 28-8-2009 passed in R.A.No. 141 of 2008 by the learned Chief Judge, City Small Causes Court, Hyderabad, confirming the order and decree dated 30-6-2008 passed in RC.No. 560 of 2006 by the II-Additional Rent Controller, Hyderabad, this Civil Revision Petition is filed. 2. For the sake of convenience, the parties hereinafter will be referred to as petitioner (tenant) and respondents (landlords). 3. The facts of the case are that the landlords are the joint owners of the property bearing M.No. 22-3-939 to 942 situated at Dabeerpura, Purani Haveli, Hyderabad, by virtue of registered sale deed vide Document No. 1460 of 2005, dated 29-10-2005 filed petition under section 10 (2) (i) and 10 (2) (v) of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 for the eviction of tenant from the above petition schedule premises contending that the revision petitioner herein is their tenant in respect of shop bearing No.22-3-939, admeasuring 300 sq.fts., on a monthly rent of Rs.100/- and the rent is payable on or before 5th of every English Calendar month. It is stated that the revision petitioner herein obtained the petition schedule premises from the vendors of the respondents-landlords in the year 1972 through a rental deed in their favour. Originally the rent of the premises was Rs.40/- per month, which was enhanced and the present monthly rent is Rs.100/-. Whenever the revision petitioner-tenant paid the rent, receipts were passed and the rent is exclusive of electricity charges. It is stated that the revision petitioner-tenant failed to pay the rents from August 2002 to October 2005 amounting to Rs.3800/- . Further the revision petitioner-tenant filed injunction suit, OS.No. 5464 of 2005 on the file of the Court of Junior Civil Judge, City Civil Court, Hyderabad and the said suit was contested by the vendor of the respondents-landlords. The vendors of the respondents-landlords intimated the revision petitioner-tenant through Memo vide SR.No. 10562 dated 05-12- 2006 that they have already sold the entire property including the premises to the landlords and further directed the revision petitioner-tenant to pay rents to the respondents-landlords but the revision petitioner-tenant did not tender either to the respondents- landlords or to their vendors. The revision petitioner-tenant is liable to pay the rent from August 2002 to November 2006 amounting to Rs.5,200/-. It is also stated that the revision petitioner-tenant has malafidely denied the title of the respondents-landlords having fully aware that the respondents herein are the absolute owners, he colluded with the locality people and in connivance with them, the revision petitioner-tenant hatched a plan to deny the title of the respondents-landlords. The above act of the revision petitioner-tenant amounts to malafide denial of title. Hence, the revision petitioner-tenant is liable to be evicted. 4. On the other hand, the revision petitioner-tenant filed his counter denying the allegations made in the petition and contended that the respondents herein are not the owners of the petition schedule property bearing No. 22-3-939, admeasuring 300 sq.ft., but they purchased an area measuring 393 sq.yards consisting of two mulgies and rear portion of the property and thy are in physical possession of the same. The property occupied by the revision petitioner-tenant is a Seri according to the registered document No.530/62 executed by one Fatima Begum in favour of Syed Abdul Khader Quadri and Syed Azmathullah Quadri and Syed Ahmed Quadri, minors through guardianship of Syed Afifuddin Hussain Quadri. Further as per certified copy of plan pertaining to property bearing No.939 to 942 admeasuring 393 sq.yards and as per the boundaries on the west there is a common Seri un-numbered excluding the above said property, which is occupied by the revision petitioner-tenant, as such the respondents-landlords have no right to claim the eviction of the petition schedule premises for want of proper title over the same. The vendor of the revision petitioner have already received the same from August 2002 and refused to receive the same, as such, the same was remitted through money order, which was also refused as such the revision petitioner is not a defaulter. It is denied by the revision petitioner-tenant since the petition schedule premises is a Seri not being assessed by the Municipal Corporation of Hyderabad, as such, one Syed Askari Hussain Shuttary, issued a legal notice to the revision petitioner claiming title of the petition schedule premises and calling upon the revision petitioner to make payment of the rent to them and to vacate the same, the revision petitioner-tenant replied the said notice on the ground that already one Syed Ahmed Quadri is claiming title over the petition schedule premises, as such, whoever prove his title the revision petitioner-te4nant will accept him as landlord and make payment of the rent thereafter the said Askari Hussain Shuttary filed a petition under Order-I, Rule-10 of CPC before VIII Junior Civil Judge, in OS.No. 5464 of 2005 filed by the revision petitioner against the vendors of the respondents- landlords and the said petition was dismissed directing Askari Hussain to initiate separate proceedings, as such, the denial of title by the revision petitioner of respondents and their vendor is bonafide based on registered document pertaining to above said property purchased by respondents and their vendors and all the registered documents pertaining to the property purchased by vendors of the respondents the petition premises is shown as Seri on the west of the said property and they have intentionally with a malafide intention shown petition schedule premises as 22- 3-939 which is not correct 22-3-939 is in physical possession of Chitti Babu, the respondents are put to strict proof of the same. Hence, prayed to dismiss the petition with costs. 5. On the basis of above rival contentions, the Principal Rent Controller, City Small Causes Court, Hyderabad, framed the following points for consideration: (i) Whether the denial of title of petitioners over the petition schedule premises by the respondent is bonafide one or malafide one ? (ii) Whether the respondent had committed wilful default in paying the rents from August, 2002 onwards and therefore, the respondent is liable to be evicted from the petition schedule premises ? 6. To substantiate their case, the first petitioner- respondent No.1 examined himself as PW.1 and one Syed Ahmed Quadri was examined as PW.2 and marked Exs.P1 to P4. The respondent himself was examined as RW.1, One Mohammed Shareef was examined as RW.2 and one Mohd. Sanaullah was examined as RW.3 and marked Exs.R1 and R2. 7. On appreciation of oral and documentary evidence placed on record, the Principal Rent Controller allowed the petition under section 10 (2) (i) and 10 (2) (v) of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 for the eviction of revision petitioner-tenant from the petition schedule premises holding that it is the bounden duty of the revision petitioner-tenant to tender rent either to the respondents-landlords or to PW.2 or he has to take necessary steps to deposit the rent into court either under section 8 (5) or Section 9 of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960. Further the revision petitioner-tenant has admitted in his cross-examination that he has not paid the rents from August 2002 to November 2002 amounting to Rs.5200/- and the above said rent is kept with him. The admission of the revision petitioner-tenant itself is sufficient that without tendering the rent, he has been enjoying the petition schedule property and therefore, he is a wilful defaulter in payment of rent. 8. Aggrieved thereby, the revision petitioner-tenant filed RA.No. 141 o 2008 on the file of the Court of Chief Judge, City Small Causes Court, Hyderabad, contending that the trial court has not appreciated his evidence and erroneously passed the eviction order on presumptions and assumptions, surmises and conjectures and it is liable to be set aside. Further it is contended that the trial court failed to consider the aspect of its jurisdiction and passed the orders without having jurisdiction. It is specifically contended that he is in occupation of Seri, a small bit of land kept open in between two houses. As such, AP Buildings (Lease, Rent & Eviction) Control Act, 1960 is not applicable to it. Such Seri cannot be brought under the purview of the Act. Further the revision petitioner-tenant filed an application seeking appointment of Advocate-Commissioner, which ultimately defeat dispensing of justice. There is no jural relationship of landlord and tenant in respect of petition schedule property. The trial court failed to appreciate the basic principle of burden of proof regarding establishment of existing of such relationship and placed the said burden wrongly on the revision petitioner-tenant instead on the respondents-landlords. The revision petitioner- tenant further contended that the trial court came to a wrong conclusion that he malafidely denied the title of the premises and that the petition schedule property has already been delivered to Ahmed Quadri and the portion, which is in occupation of the revision petitioner-tenant now is not at all concerned with the property either of the respondents-landlords or of their vendors. It is further contended that since the property in occupation of the revision petitioner-tenant is a Seri, which is neither the portion of the property bearing No.22-3-939 nor it belongs to the respondents-landlords. The respondents-landlords have no right to make any claim over the said property. It is contended that after vacating the property bearing No. 22-3-939, the revision petitioner-tenant occupied the portion of Seri lying vacant on the western side of the said property. In spite of evidence let- in on behalf of the revision petitioner-tenant to establish the said fact by examining independent witnesses, trial court failed to appreciate the same and came to wrong conclusion. 9. After hearing both sides, the learned Chief Judge, City Small Causes Court, Hyderabad, framed the following points for determination: i) Whether the denial of title of the petitioners made by the respondent is bonafide and whether there is relationship of landlords and tenant existing between the petitioners and respondent? ii) Whether the respondent has not committed wilful default in payment of rents ? iii) Whether the impugned order is liable to be set aside, if so, on what grounds ? iv) To what relief ? 10. On re-appreciation of oral and documentary evidence placed on record, after hearing both sides and on perusing the record, the learned Chief Judge, City Small Causes Court, Hyderabad, dismissed RA.No.141 of 2008 by judgment dated 28- 8-2009 holding that the revision petitioner-tenant has not filed any document to show that the rental amounts were tendered by money order and that he has not made any efforts to invoke section 8 (5) of the Act to deposit rents to the credit of Rent Controller and that he has not paid rent from August 2002 to November 2006 amounting to Rs.5,200/- and the said amount is lying with him. Hence, the revision petitioner-tenant is a wilful defaulter in payment of rents for the said period. 11. Aggrieved thereby, the present Civil Revision Petition is filed by the tenant. 12. Heard the learned counsel for the Revision Petitioner as well as Sri Nimmagadda Satyanarayana, the learned counsel for the respondents-landlords and perused the oral and documentary evidence placed on record and also concurrent judgments of both the courts below. 12. At the hearing, this court suggested the learned counsel for the revision petitioner that sufficient time will be granted to the revision petitioner-tenant to vacate the petition schedule premises. The learned counsel for the revision petitioner-tenant also fairly concedes and sought reasonable time to vacate the petition schedule premises and filed an undertaking of the revision petitioner-tenant, wherein the revision petitioner sought 1 ½ year’s time to vacate the petition schedule property, as he has to search alternative mulgi for commencement of old scrap business and that it is very difficult for him to get alternative mulgi immediately to commence old scrap business nearby the said premises and further he has undertaken that he will not commit any default and shall handover possession to the respondents-landlords after expiry of the said period and pay the rents regularly till then. 13. Considering the submissions made by the learned counsel for the revision petitioner-tenant and on perusing the oral and documentary evidence placed on record and also the concurrent judgment of both the courts below, this court is of the opinion to direct the revision petitioner to vacate the petition schedule premises positively on or before 30-06-2010 and shall hand over the petition schedule premises to the respondents- landlords and shall not sub-let to any third party, failing which the respondents-landlords are at liberty to get vacate the revision petitioner-tenant from the petition schedule premises by due process of law and if necessary seek police-aid. The affidavit- cum-undertaking furnished by the revision petitioner-tenant may be placed as part of the record. However, the revision petitioner is further directed that he shall not renew his request hereafter seeking any 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. 16. As a sequel to the dismissal of the main Civil Revision Petition, CRPMP.No.7061 of 2009, which has been filed seeking to stay of all further proceedings pursuant to the judgment dated 28-8-2009 passed in R.A.No. 141 of 2008 by the learned Chief Judge, City Small Causes Court, Hyderabad, confirming the order and decree dated 30-6-2008 passed in RC.No.560 of 2006 by the II-Additional Rent Controller, Hyderabad, is dismissed as infructuous. ______________________ JUSTICE T. MEENA KUMARI 06-11-2009. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 51 4 8 OF 2009 Circulation Entry No. 20 Date: 06-11-2009 Court Master : I s L Computer No. 43.