HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.4700 of 1998 Date: 27-8-2011 Between Smt. Hajira Begum … Petitioner/Respondent and Mohd. Ali Dasthi (died) as per L.Rs Gulam Raza Dasthi and 7 others … Respondents/Appellants HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.4700 of 1998 Order: The civil revision petition is filed against the judgment dated 30- 7-1998 in R.A.No.123 of 1996 on the file of the Chief Judge, City Small Causes Court, Hyderabad. 2. The revision petitioner herein is the respondent in R.A.No.123 of 1996. R.A.No.123 of 1996 was filed by the legal representatives of the deceased original tenant, namely, Mohd. Ali Dasthi, who are the respondents in R.C.No.2094 of 1986. For the sake of convenience, the parties herein are referred to as arrayed in R.C.No.2094 of 1986. 3. One Smt. Hajira Begum, wife of Mohammed Abdul Raheem, landlady, filed R.C.No.2094 of 1986 under Sections 10(2)(iii) and 10(3)(i)(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’). The trial Court, after elaborate enquiry, through the order dated 31-8-1991 held that the respondent and his family members attended major repairs work of the petition premises and thereby made alterations to the petition premises without the consent of the landlady which was not permissible under law, and accordingly ordered eviction of the tenants. It was further held that the requirement of the petition premises by the petitioner (landlady) is not bona fide. Against the said order, dated 31-8-1991, the tenants went up to Supreme Court. The Supreme Court in the order dated 28-02-1995 in Civil Appeal No.3177 of 1995 held that the courts below failed to record the finding on the issue of whether the alterations made by the tenant in the suit premises amount to acts of waste and whether they have impaired materially the value and utility of the building within the meaning of Section 10(2)(iii) of A.P. Buildings (Lease, Rent & Eviction) Control Act, and accordingly set aside the impugned order and remanded the matter to the trial Court to decide the said issue as to whether the appellant should be evicted from the premises on the basis of the said finding. Accordingly, the trial Court reconsidered the matter and allowed the petition through the order dated 18-3-1996 ordering eviction of the tenants from the petition schedule premises on the ground that the acts of the tenants come under the acts of waste, which impaired materially the value and utility of the petition schedule premises. Being aggrieved, the tenants preferred R.A.No.123 of 1996 and the learned Chief Judge, City Small Causes Court, Hyderabad, while setting aside the order in R.C.No.2094 of 1986, remanded the matter to the Rent Controller for further enquiry and fresh disposal according to law in the light of the directions of the Hon’ble Supreme Court. Being aggrieved, the present civil revision petition is filed by the landlady. 4. The learned counsel for the petitioner-landlady mainly urged that the lower appellate Court i.e., the Chief Judge, City Small Causes Court, Hyderabad, erred in remanding the matter to the Rent Controller, which is not warranted in the given circumstances of the present case and the lower appellate Court exceeded its jurisdiction in remanding the matter to the Rent Controller and that the lower appellate Court misdirected itself while interpreting the order of the Hon’ble Supreme Court. 5. Now, the point for consideration is: Whether the judgment of the lower appellate Court dated 30- 7-1996 in R.A.No.123 of 1996 is sustainable ? 6. Point:- As seen from the order in R.C.No.2094 of 1986, dated 18-3-1996, on behalf of the petitioner-landlady, as many as 3 witnesses were examined as P.Ws.1 to 3 and Exs.X-1, X-2, P-1 to P- 13 and P-1(a) were got marked and on behalf of the respondents- tenants, R.W.1 was examined and Exs.R-1 to R-13 were got marked. 7. Initially, after due trial and elaborate enquiry, the trial Court passed an order dated 31-8-1991 holding that the respondent i.e., the original tenant, and his family members attended major repairs work of the petition schedule premises and thereby made alterations to the petition schedule premises without the consent of the landlady, which was not permissible under law, hence eviction was ordered against the original tenant. Further, it was held that the requirement of the petition schedule premises by the petitioner was not bona fide. 8. Being aggrieved against the said order dated 31-8-1991, the tenants went up to the Hon’ble Supreme Court and the Hon’ble Supreme Court in its order dated 28-02-1995 in Civil Appeal No.3177 of 1995 held that the courts below failed to record the finding on the issue of whether the alterations made by the tenant in the suit premises amount to acts of waste and whether they have impaired materially the value and utility of the building within the meaning of Section 10(2)(iii) of the Act, hence the impugned order was set aside and remanded the matter to the trial Court to decide the aforesaid issue as to whether the appellant should be evicted from the premises on the basis of the said finding, and it was further directed that the trial Court may take for that purposes such additional evidence as may deem necessary. 9. In the light of the above order of the Supreme Court, the matter was again taken up by the trial Court for enquiry. At that stage, the 1st respondent i.e. the original tenant reported dead, hence his legal representatives were added as respondents 2 to 9 and the 4th respondent filed a counter. Adoption Memos on behalf of the respondents 2, 3 and 5 to 8 were filed. In the counter filed by the 4th respondent, it is mentioned that due to the repairs carried out by the 1st respondent, the value of the suit premises was improved and increased and also filed an interlocutory application in I.A.No.1300 of 1995 to appoint an Advocate-Commissioner to ascertain the real facts, but the same was dismissed, against which the respondent filed C.R.P.No.66375 of 1995 and a damages suit was filed by the landlady in O.S.No.1709 of 1990 on the file of the IV Assistant Judge, City Civil Court, Hyderabad. A perusal of the order dated 29-9-1995 of the trial Court in I.A.No.1300 of 1995, which was filed by the respondent- original tenant for appointment of an Advocate-Commissioner, shows that the said application was dismissed observing that the burden of proof on the issue about the acts of waste is on the landlady and the application for appointment of an Advocate-Commissioner was filed at the belated stage. 10. After remand of the matter from the Hon’ble Supreme Court, P.W.1 was recalled and examined further. But, no witnesses were examined on behalf of the respondents. During the course of evidence of P.W.1, she filed Ex.R-10 certified copy of her Affidavit in I.A.No.2183 of 1986 in O.S.No.1960 of 1986 stating that on 14-6-1986 herself and her husband found the coolies demolishing the roof of one room, store room, bath, kitchen and one portion of the verandah and the Mangalore tiles of roof of the petition premises was removed and it was replaced by asbestos roof of inferior quality and the respondent removed the partition walls, door and windows and constructed new walls, and the respondent damaged the flooring of the petition premises and gut the holes for reconstruction, without her permission or consent and contrary to the terms of the tenancy. Hence she filed injunction suit in O.S.No.1960 of 1986 and also gave a complaint to the Municipal Corporation of Hyderabad for demolition of the unauthorized construction of the respondent in the petition schedule premises and those acts of respondent demanded almost the petition schedule premises and also altered the identity of house, hence those acts of respondent impaired the value of the petition schedule premises and ultimately O.S.No.1960 of 1986 was decreed. 11. In that suit, P.W.3 was appointed as an Advocate- Commissioner to note down the physical features and according to his report under Ex.P-3, he found alterations in the petition schedule premises. Ex.P-12 is the certified copy of the judgment dated 08-3- 1989 in O.S.No.1960 of 1986 on the file of the III Assistant Judge, City Civil Court, Hyderabad, which was marked by consent of the parties. 12. Therefore, it is clear from the recitals of Ex.P-3, copy of the report of the Advocate-Commissioner in O.S.No.1960 of 1986, that during his inspection of the petition schedule premises, the Advocate- Commissioner found that there was rough shabbed stone flooring, which was found without cement nosing, and there were some patches of lime and cement, and the roof of the petition schedule premises was lowered down recently by putting asbestos sheets, and the roof of kitchen, store room and drawing room and replaced by asbestos sheets, and the kitchen has asbestos sheet roof it looked fairly new, as would be evident by loosed bricks gaping through roof then seen from outside, the roof of the store room has got new asbestos sheets fitted on wooden logs, and the Northern and the Southern sides’ walls of the store room looked as if newly constructed and the electric fitting was found removed but its remnants were existing, and electric old fittings found existing in the bed room, the flooring of the bed room was rough, besides some other damages and alterations. The inspection of the petition schedule premises by P.W.3 and the contents mentioned in Ex.P-3 are not at all denied by the 1st respondent in his testimony, on the other hand R.W.1 admitted the inspection of petition schedule premises by P.W.3 and Ex.P-3 report. 13. On perusal of the contents of Ex.P-12 certified copy of judgment in O.S.No.1960 of 1986, it was clearly held therein that the respondents-tenants have made constructions and changed the roof of the petition schedule premises and altered the petition schedule premises as mentioned in Ex.P-3 report of the Advocate- Commissioner without the permission of the petitioner-landlady, hence perpetual injunction was granted against the 1st respondent restraining him from carrying out any more alterations of the petition schedule premises. Admittedly, there is no appeal against Ex.P-12, hence Ex.P-12 holds good. 14. In the light of the positive findings of the trial Court that the conduct of the respondents come under the purview of the waste, which impaired materially the value and utility of the petition schedule premises, therefore, in any view of the matter, the finding given by the trial Court that the respondents-tenants have committed acts of waste leads to the damage of the petition schedule premises, in my view, needs no interference as the same is sustainable. 15. The lower appellate Court totally misdirected while interpreting the order of the Hon’ble Supreme Court, which clearly says that the Rent Controller may take such additional evidence as he may deem necessary. Therefore, the reasoning given by the lower appellate Court that the direction of the Hon’ble Supreme Court has not been followed on the ground that Civil Engineer was not appointed, is highly erroneous and unsustainable. 16. Furthermore, the lower appellate Court also failed to see that the deceased 1st respondent-original tenant filed the application in I.A.No.1300 of 1995 for appointment of an Advocate-Commissioner in the trial Court, the same was dismissed on 29-9-1995 and no appeal is filed against the said orders, and therefore the order in the said application has become final. 17. The trial Court well discussed the evidence on record and came to the correct conclusion while ordering eviction of the respondents-tenants on the ground that the acts of tenants come under the acts of waste. The tenants successfully dragged on the matter while misrepresenting the facts and mislead the Court to suit their convenience at the peril of the owner of the petition schedule premises i.e. the landlady. This is a clear case where the tenants have taken the shelter of the Court under the guise of misnomers and conjectures. In any view of the matter, the order of the lower appellate Court remanding the matter to the trial Court is contrary to the observations of the Hon’ble Supreme Court, which, in my view, is unsustainable and cryptic. Due to the orders in R.A.No.123 of 1996, dated 30-7-1998, the landlady deprived of fruits of the order passed by the trial Court. 18. Before parting with my observations, it is very sad to note that the lower appellate Court did not exercise its discretion with judicious mind. When the Hon’ble Supreme Court gave a categorical finding giving an option to the trial Court to dispose of the matter under the guidelines thereunder, the lower appellate Court misinterpreted the same and set aside the order of the trial Court. The trial Court has taken a lot of pains while disposing of the matter taking into consideration the evidence adduced by both the parties. The trial Court has also disposed of the Rent Control Case while following the directions given by the Hon’ble Supreme Court in its order dated 28- 02-1995 in Civil Appeal No.3177 of 1995. In the totality of the circumstances, viewed from any angle, the judgment of the lower appellate Court is perverse and liable to be set aside. 19. Accordingly, the civil revision petition is allowed setting aside the judgment dated 30-7-1998 in R.A.No.123 of 1996 passed by the lower appellate Court. No costs. ___________________ K.S.APPA RAO, J. 27th August, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.4700 of 1998 27th August, 2011. (Ak)