*HON’BLE SRI JUSTICE P.S. NARAYANA +CIVIL REVISION PETITION No.6430 of 2006 and CIVIL REVISION PETITION No.55 of 2008 % 31-5- 2010 CIVIL REVISION PETITION No.6430 of 2006 Between: #Omkar Tele … Petitioner/Respondent Respondent-Tenant And $1. Mohd. Abdul Rahman and 12 others … Respondent/Appellants/ Petitioners-landlords CIVIL REVISION PETITION No.55 of 2008 Between: 1. Mohammed Abdul Rahman and 12 others. … Petitioners/Respondents/ Petitioners And Omkar Tele … Respondents/Appellants/ Respondent !Counsel for the petitioner: Smt. Manjiri S. Ganu Counsel for the respondents: Sri Hanumanthu Rajagopal Rao <Gist: >Head Note: ?Cases referred: 1. AIR 1985 Supreme Court 582 2. 2008 (4) ALT 147 (F.B.) 3. 2006 (1) ALT 111 (D.B.) 4. 2008 (6) ALT 645 5. 2007 (4) ALT 49 6. AIR 2004 Supreme Court 495 7. 2008 (6) ALT 446 8. 2000 (1) ALT 551 9. 2006 (1) ALT 423 10. AIR 1971 Andhra Pradesh 298 11. AIR 1983 Andhra Pradesh 244 12. AIR 2007 SC (Supp.) 74 13. 2008 AIR SCW 6201 14. AIR 2008 Supreme Court 773 15. (2010) 1 Supreme Court Cases 503 16. 2005 (4) ALD 249 HON’BLE SRI JUSTICE P.S. NARAYANA CIVIL REVISION PETITION No.6430 of 2006 and CIVIL REVISION PETITION No.55 of 2008 Date: May 31, 2010 CIVIL REVISION PETITION No.6430 of 2006 Between: Omkar Tele … Petitioner/Respondent Respondent-Tenant And 1. Mohd. Abdul Rahman and 12 others … Respondent/Appellants/ Petitioners-landlords * * * CIVIL REVISION PETITION No.55 of 2008 Between: 1. Mohammed Abdul Rahman and 12 others. … Petitioners/Respondents/ Petitioners And Omkar Tele … Respondents/Appellants/ Respondent * * * HON’BLE SRI JUSTICE P.S. NARAYANA CIVIL REVISION PETITION No.6430 of 2006 and CIVIL REVISION PETITION No.55 of 2008 COMMON ORDER: These two civil revision petitions are filed under Section 22 of the A.P. Buildings (lease, rent and eviction) Control Act, 1960 (hereinafter in short referred to as “Act” for the purpose of convenience) by the tenant and the landlords respectively as against the common order made in R.A.No.220 of 2002 and R.A. No.192 of 2002 being aggrieved of the portions of the order and the relief made in R.C.No.476 of 1998 on the file of IV Additional Rent Controller, Hyderabad. 2. In view of the commonality involved in both these civil revision petitions and in the light of the fact that both the R.As. aforesaid also had been disposed of by a common order by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, the Appellate Authority, these civil revision petitions are being disposed of by a common order by this Court. 3. Heard Smt. Manjiri S Ganu, learned counsel representing tenant and Sri Hanumanthu Rajagopal Rao, learned counsel representing landlords. 4. Smt. Manjiri S Ganu, the learned counsel representing tenant would maintain that the order of eviction made by the Appellate Authority is not in accordance with law. The learned counsel also would maintain that the Appellate Authority had not appreciated that eviction petition had been thought of the landlords after six years after the order in the deposit of rent case Ex.B-29. The learned counsel also would maintain that the landlords never pleaded any ground of alleged failure of Rule 5 (4) in the eviction petition and when that being so the Appellate Authority cannot take aid of the same. The learned counsel also further pointed out to the evidence available on record and specifically pointed out to the chief-examination of P.W.1 and would maintain that there is not even whisper about non-issuance of deposit. The learned counsel also would maintain that the Appellate Authority failed to appreciate the fact that there are no amounts due or payable as on the date of eviction petition inasmuch as the tenant has been complying with Ex.B-29 order throughout. Notwithstanding the said deposit up-to-date, the Appellate Authority ordered eviction on erroneous ground. The learned counsel also pointed out to the oral and documentary evidence available on record and the findings recorded by the Appellate Authority and also the learned Rent Controller, the original authority. The learned counsel also pointed out that the suit R.C.No.476 of 1998 was filed praying for eviction of the tenant on the ground of wilful default and the ground of securing alternative accommodation and on the ground of personal requirement. The learned counsel also would maintain that the learned Rent Controller negatived the ground of wilful default, but however, after recording findings at paras 12 and 13 came to the conclusion that the tenant had secured alternative accommodation and recorded further findings at paras 15, 16 and 17 and came to the conclusion that the bona fide personal requirement had been established and accordingly the eviction was ordered. The learned counsel also pointed out that the landlords and tenants, aggrieved by the same, had carried R.A.192 of 2002 and R.A. No.220 of 2002 respectively and the Appellate Authority came to the conclusion that the learned Rent Controller committed a grave error in ordering eviction on those grounds, but however, came to the conclusion that the ground of wilful default had been made out i.e., for the period from September 1992 till the end of June 1998 for 70 months and accordingly ordered eviction. The learned counsel would maintain that the C.R.P. filed by the landlords being aggrieved of the order negativing the other grounds to be dismissed and the C.R.P. filed by the tenant to be allowed. The learned counsel also would maintain that it may be prerogative of the landlord to choose the mulgi, but there is no plea and there is no evidence and, hence, the burden expected to be by the landlord had not been discharged. Incidentally the memos and challans also had been pointed out. The learned counsel also relied on several decisions to substantiate her submissions. 5. Per contra, Sri Hanumanthu Rajagopal Rao, the learned counsel representing landlords would maintain that in the light of the clear evidence available on record, apart from wilful default, the eviction should have been ordered even on the ground of bona fide personal requirement and also on the ground of securing alternative accommodation. The mere fact that there are certain other mulgis may not alter the situation, since it is for the landlords to choose which premises would be suitable. Since it is the choice of the landlord to choose his own building, the findings recorded in this regard cannot be sustained. The learned counsel also pointed out to the availability of alternative accommodation and, hence, negativing the reliefs on those grounds cannot be sustained. The learned counsel also would maintain that in the light of the convincing reasons recorded by the Appellate Authority while ordering eviction on the ground of wilful default, the said findings are to be confirmed. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions. 6. In the light of the submissions made by the counsel on record, the following points arise for consideration in these civil revision petitions. (1) Whether the findings recorded by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, in R.A.No.192 of 2002 and R.A. No.220 of 2002 by a common order to be disturbed or to be confirmed in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? 7. Point No.1: For the purpose of convenience, the parties hereinafter would be referred to as landlords and tenant as shown in R.C.No.476 of 1998. 8. Averments made in the R.C. No.476 of 1998 as hereunder: The petitioners-landlords are the owners and landlords of the property bearing mulgi No.5-2-1021 situated at Mozamjahi Market, Hyderabad and the respondent is tenant on a monthly rent of Rs.100/-. The tenancy is month to month as per the English calendar and the rent is payable in advance. 9. It is also averred that the respondent-tenant was willful defaulter in payment of rents from September 1991 onwards. The petitioners- landlords, in order to cover the default committed by him, had filed R.C.No.205 of 1992 on the file of IV Additional Rent Controller, Hyderabad. The respondent-tenant was permitted to deposit the rents from September 1991 to August 1992. The respondent-tenant was further directed to tender the rent from September 1992 onwards to the petitioners-landlords directly and in case of refusal, the respondent- tenant was permitted to deposit the rent. The respondent-tenant failed to comply with the orders of the court and without tendering the rent or sending through M.O., the respondent-tenant had started depositing the rents directly and thereby committed default from September 1992 to June 1998. 10. Further it is averred that the respondent-tenant is having his own mulgi bearing No.5-2-733, New Osmangunj, Hyderabad, and the same was let out to third person. The respondent-tenant, instead of keeping the same for himself, let out the same to third parties on higher rents. The respondent-tenant also let out the property to different tenants at Risala Abdullah, Osmangunj, Hyderabad, by collecting huge amount as deposit and, hence, the respondent-tenant secured alternative accommodation. 11. It is also further averred that petitioner No.4 was intending to commence electrical appliances and general goods business in the petition mulgi. The petitioners are not in possession and enjoyment of their own property except the petition mulgi. The petitioners-landlords demanded the respondent-tenant to vacate the premises. The respondent-tenant promised to vacate, but failed to comply with the same. 12. Respondent-tenant filed counter as hereunder: The respondent-tenant was not aware whether P6 to P13 are the owners of the petition building and there was no attornment of tenancy and as such there was no jural relationship of tenancy. It was admitted that the rent was Rs.100/- per month. The petitioners’ vendor collected rents up to August 1991 and subsequently he refused to receive the rents and informed the respondent-tenant that he had sold the petition schedule premises to respondents 1 to 3 and one Mohd. Afzal Rasheed. The respondent filed R.C.No.205 of 1992 on the file of IV Additional Rent Controller for deposit of rents and was depositing the rents since September 1991 till today. 13. It is denied that the respondent-tenant had secured alternative accommodation at premises No.5-2-733, New Osmangunj, Hyderabad. The said premises was purchased by the respondent- tenant about 15 years back and it is old house wherein one Praveen Kumar Gupta was residing as tenant. As the building was old, the respondent-tenant reconstructed the same and let out the same to the tenant as per the provisions of Section 12 of the Act. The respondent- tenant is not liable to be evicted on the same ground. 14. The first petitioner had demanded enhancement of rent and huge pagdi amount and the respondent-tenant failed to comply the same. The allegation of personal requirement of 4th petitioner is vague. The petition building is having five mulgies on the ground floor without four back halls in the first floor. The petitioners are in possession of mulgi No.5-2-1023 wherein they were carrying on zarda business and storing materials in the first floor and using the same for commercial purpose. As such, the requirement of the petitioner is not legally tenable. The petitioners are owners of house No.20-4-662 situated at Shah Gunj Chowk consisting of six commercial mulgies and residential house in the first floor. Out of six mulgies which bear M.No.20-4-662/1 to 6, the petitioners-landlords were carrying business in two mulgies. In one of the mulgies zarda business is being carried out and in another mulgi, there was a Star Enterprises and also Sattar Binding Works. The petitioners were also owners of H.No.5-2-701 Risala Abdullah, Hyderabad and petitioner No.4 was carrying on business under the name and style of Liberty Book Manufacturing with the help of other petitioners. Apart from it, petitioners were also getting huge rents from other tenants not only at petition property, but also from Shahgunj property and other places. 15. Further it is stated that abutting the petition schedule premises, there was a staircase, which is an open space and there is 10’ wide frontage and 15’ wide in length and the same is not in use. If really the petitioners intend to carry on business of their own, they can utilize the said space by making necessary repairs. Hence, the petition is liable for dismissal. 16. Before the learned Rent Controller, the following points had been formulated: (1) Whether the respondents are committed wilful default in payment of rents from September 1992 to June 1998? (2) Whether the respondent secured alternative accommodation at premises No.5-2-733, New Osmangunj, Hyderabad? (3) Whether the petitioner No.4 requires the petition premises bona fidely for carrying electrical appliance and general good business? 17. The learned Rent Controller examined the first petitioner as P.W.1 and further recorded the evidence of P.W.2 and Exs.A-1 to A-16 were marked. The respondent-tenant examined himself as R.W.1 and R.W.2 also was examined and Exs.B-1 to B-80 were marked. 18. Before the learned Rent Controller, the under noted evidence had been recorded and the documents had been marked. Appendix of evidence Witnesses examined For petitioners P.W.1: Mohammed Abdul Rahman P.W.2: Mohd. Abdul Bari For respondent: R.W.1: Omkar Tele R.W.2: Praveen Kumar Gupta Documents marked For petitioners: Ex.A-1: Letter of attornment Ex.A-2: Postal receipt Ex.A-3: Tax payment receipt Ex.A-4: Rough sketch plan Ex.A-5: Photograph with negative Ex.A-6: Envelop cover Ex.A-7: Wedding card Ex.A-8: Translation of Ex.A-7 Ex.A-9: Envelope cover Ex.A-10: Wedding card Ex.A-11: Translation of Ex.A-10 Ex.A-12: Envelope cover Ex.A-13: Wedding card Ex.A-14: Translation of Ex.A-10 Ex.A-15: Certified copy of sale deed dt.23.8.76 Ex.A-16: Invitation card For respondent: Ex.B-1: Notice Ex.B-2: Reply notice dt.2.10.91 Ex.B-3: Notice dt.17.11.91 Ex.B-4: Invitation card Ex.B-5 to : M.O. commission receipts and M.O. coupons Ex.B-20 Ex.B-21: Office copy of legal notice dt.13.2.92 Ex.B-22: M.O. commission receipt Ex.B-23: Refused M.O. coupon Ex.B-24: Triplicate challan Ex.B-25: Letter dt.18.2.92 Ex.B-26: Letter Ex.B-27: Postal receipt Ex.B-28: Returned postal cover Ex.B-29: Certified copy of order in R.C.205/92 Ex.B-30 to : Triplicate challans Ex.B-75 Ex.B-76: Rent receipt Ex.B-77 & : Receipts Ex.B-78 Ex.B-79: Office copy of reply notice dt.25.2.92 Ex.B-80: Certified copy of ledger extract. 19. As already aforesaid while negativing the ground ‘wilful default’ on other grounds eviction was ordered by the learned Rent Controller. Being aggrieved of the respective portions of the said order, two appeals, R.A. No.192 of 2002 and R.A.No.220 of 2002, had been preferred and the learned Appellate Authority at para 21 formulated the under noted points for consideration. (1) Whether the tenant committed default in payment of rent from September 1992 till the end of October 1998 for 70 months at the rate of Rs.100/- per month and failure to intimate about deposit of rent to the credit of R.C.No.205 of 1992 amounts to wilful default? (2) Whether the tenant secured a building alternative to the schedule premises subsequent to commencement of tenancy if so, the premises bearing door No.5-2-733, New Osmangunj amounts to securing alternative accommodation and is the tenant liable for eviction under Section 10(2)(v) of the Act? (3) Whether the requirement pleaded by the landlords for occupation of 4th landlord is true, honest and bona fide if so, the tenant is liable to be evicted from the schedule premises under Section 10 (3) (a)(iii) of the Act? 20. The Appellate Authority, after recording elaborate reasons commencing from paras 22 to 48, came to the conclusion that the learned Rent Controller committed a grave error in ordering eviction on the other grounds, but however, reversed the findings of the learned Rent Controller as far as the ground of wilful default is concerned held that on facts the ground of wilful default had been established and ordered eviction. Aggrieved by the same, the present civil revision petitions specified supra, had been preferred. 21. The burden is on the tenant when eviction had been prayed for under Section 10(2)(i) of the Act to establish that he had not committed any default, much less, wilful default in payment of rent. It is not in controversy that the tenant obtained permission to deposit rent to the credit of R.C. No.205 of 1992. Ex.B-29 is the relevant document to be appreciated whether the blow of wilful default can be warded off by the tenant in the light of the same. This is the certified copy of the order in R.C.No.205 of 1992, dated 17th August 1992 wherein it was specified that the tenant is directed to deposit monthly rents of Rs.100/- per month to the credit of R.C. from September 1991 onwards till this month i.e., August on or before 31.8.1992. The petitioner tenant was permitted to deposit future rents month to month to the credit of RC on due dates or to the respondents herein directly. In case, the respondents refused to receive rent, he is at liberty to deposit the monthly rent to the credit of RC. 22. The order being self explanatory, the same need not be further elaborated. The specific stand taken by the landlords is that no notice of deposit of rent had been given to them after obtaining the order under Section 8 (5) of the Act in compliance of Rule 5(4) of the Rules. The evidence of P.W.1 is clear and categorical about the failure to issue notice of deposit of rent every month after obtaining the order Ex.B-29. P.W.1 deposed that the tenant was not paying rents regularly and committed default in payment of rent from 1991 onwards and the tenant did not pay rents from September 1992 to June 1998 for a period of 70 months at the rate of Rs.100/- per month despite demands. P.W.1 had not specifically deposed in chief-examination. The same had been elicited in cross-examination. 23. R.W.1 in chief-examination asserted that he was depositing rent regularly into Court and strongly relied on Exs.B-30 to B-75, triplicate challans, for the period from August 1992 to March 1999. No doubt, it was suggested that R.C. No.205 of 1992 was thought of only to get over the ground of wilful default and the same had been denied and relating to non-intimation also when it was suggested, the same was denied. R.W.1 voluntarily deposed that he was giving intimation orally. The inconsistent stands taken by the tenant in the pleading and evidence had been taken note of by the Appellate Authority and the procedure to be followed under Rule 5 (4) and Rule 16 of the Rules also had been taken note of. Ultimately, the learned Appellate Authority came to the conclusion that the learned Rent Controller had not considered the effect of failure to issue notice of deposit under Rule 5(4) read with Rule 16 of the Rules and committed grave error in dismissing the eviction petition under Section 10 (2)(i) of the Act and inasmuch as the ground of wilful default had been established, the learned Appellate Authority came to the conclusion that the said finding of the Rent Controller to be reversed and on that ground eviction to be ordered. 24. Reliance was placed on the decision in S. Sundaram Pillai v. V.R. Pattabiraman[1] wherein the Apex Court at paras 21 to 25 observed as hereunder. “Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary' of Law by L. B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus: 'wilful' - deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing. 'wilful default' - Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Volume 11-A (Permanent Edition) at page 268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In volume 45 of Words and Phrases, the word 'wilful' has been very clearly defined thus : 'wilful' - intentional: not incidental or involuntary; - done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently; - in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary. P. 296-'wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary. In Volume III of Webster's Third New International Dictionary at page 2617, the word 'wilful' has been defined thus: governed by will without yielding to reason or without regard to reason obstinately or perversely self- willed The word 'default' has been defined in Vol. I of Webster's Third New International Dictionary at page 590 thus: to fail to fulfil a contract or agreement, to accept a responsibility ; to fail to meet a financial obligation. In Black's Law Dictionary (Fourth Edn.), at page 1773 the word 'wilful' has been defined thus: 'wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice. The word 'reckless' as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause. it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.” 25. In Mohammed Izhar Ali v. Smt. Olive founseca (died per L.Rs. and others[2] the Full Bench of this Court following the view expressed in N.D. Thadani (dead) by Lrs. V. Arnavaz Rustom Printer, Mumbai and another (2004 (3) ALT 1 (SC)) answered the reference in the following terms. “Therefore, the reference has to be and is answered accordingly in the following terms: (1) Though Section 8 of the Andhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960 is directory and optional, a tenant taking advantage and benefit of the said provision has to strictly and mandatorily comply with the procedure prescribed under Rule 5 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules, 1961. (2) While deposit of rent in terms of the provisions of the Act and the Rules amounts to valid tender of rent to the landlord, the failure to comply with sub-rule (3) of Rule 5 requiring delivery of a copy of the challan for the deposit of rent in the office of the controller or the appellate authority, as the case may be, so as to enable the Controller or the appellate authority to cause maintenance of proper accounts under sub-rule (5)and give notice of deposit to the person or persons concerned within seven days of such delivery of copy of the challan in one or the other of the modes specified in Rule 16 (paying within a reasonable time the prescribed fee as per Rule 17 for service of such notice, if the tenant himself did not serve such notice directly on the landlord or the advocate appearing for the landlord)under sub-rule (4), amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord; (3) Sub-rule (1) and/or sub-rule (3) of rule 5 of Rules do not prescribe any time limit for depositing rent after obtaining permission for such deposit from Rent Controller under section 8 (5) of the Act. A perusal of sub-rules (2) and (3) of Rule 5 of rules, however, shows that after obtaining permission a tenant has to deposit rent every month and as required under sub-rule (3) of Rule 5 of the Rules shall deliver rent challan