THE HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION Nos.562 OF 2010 AND 6143 OF 2009 Date: 09-04-2010 CIVIL REVISION PETITION No. 562 OF 2010 Between Kanthilal Jain …..Petitioner And Kancherla Gangadhara Tilak …..Respondent CIVIL REVISION PETITION No. 6143 OF 2009 Between Kanthilal Jain …..Petitioner And Kancherla Gangadhara Tilak …..Respondent THE HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION Nos.562 OF 2010 AND 6143 OF 2009 COMMON ORDER: Since both the revisions arise out of common proceedings, they are being disposed of by this common order. The tenant is in revisions against the orders of the learned Appellate Authority under the Rent Control Act (Principal Senior Civil Judge) Rajahmundry in allowing R.C.A No. 15 of 2006 dated 25-08- 2009 filed by the respondent – landlord seeking his eviction under Section 10 (2) (i) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act on the ground of bona fide requirement and wilful default in payment of rents by setting aside the order passed in R.C.C No. 9 of 2003 on the file of the learned Rent Controller-cum-Principal Junior Civil Judge, Rajahmundry wherein the learned Rent Controller dismissed the petition filed for eviction and dismissing R.C.A No. 22 of 2006 filed by the tenant confirming the judgment of the learned Rent Controller dated 24-08-2006 fixing fair rent of the premises at Rs.2,500/- per month in R.C.C No. 7 of 2003. The respondent – landlord filed the above two RCCs before the learned Rent Controller one for eviction and another for fixation of fair rent contending that the petitioner – tenant was irregular in payment of rents and paid the rent for the month of May, 2002 on 08-06-2002 for which he issued a receipt and thereafter he committed default in payment of the rents from June, 2002 till December, 2002. The petition schedule property was let out on 01-01-1999 against the rent of Rs.562.50 ps per month and subsequently, enhanced to Rs.703.15 ps per month on 01-01-2002 and the said premises is situated in the heart of Rajahmundry located in a busy and commercial locality where all kinds of business establishments such as gold shops, fancy shops, financial institutions, hotels etc., are situated. The premises adjacent to the schedule premises are fetching monthly rent of Rs.3,000/- to Rs.3,500/- and the schedule premises is also capable of fetching a monthly rent of Rs.3,000/- and that there is a practice of enhancing the rent by 20% for every two years and hence fair rent may be fixed to the premises taking into consideration the rent prevalent in the locality. To prove the claim of the landlord, PWs 1 to 3 were examined and Exs.A-1 to A-30 were marked. On behalf of the tenant, RWs 1 to 3 were examined apart from exhibiting Exs.B-1 to B-10. Exs.X-1 and X- 2 were marked through the Commissioner. The learned Rent Controller by the common order dated 24-08-2006 dismissed RCC No. 9 of 2003 on the ground that there is no wilful default in payment of rents by the tenant as the account books produced by the tenant clinchingly establishes payment of rents from June 2002 to December 2002 under Exs.B-1 to B-5 entries for the year 2002-03. Therefore, the landlord failed to establish the alleged default in payment of rents. Coming to the aspect of bona fide requirement, it was held by the learned Rent Controller that the landlord failed to establish the bona fide requirement since the tenant was evicted in R.C.C No. 45 of 1987 but the said premises was not occupied by the landlord and the same was let out to PW 3 for a monthly rent of Rs.2,500/-. Hence, the landlord does not require the premises for bonafide requirement. Insofar as fixation of fair rent is concerned, the learned Rent Controller after considering the evidence adduced by the parties fixed the fair rent at Rs.2,500/- per month. Questioning the dismissal of R.C.C No. 9 of 2003, the landlord filed R.C.A No. 15 of 2006 and the tenant filed R.C.A No.22 of 2006 against the order of fixation of fair rent at Rs.2,500/- per month in R.C.C No. 7 of 2003. The learned appellate Judge by two separate orders, dated 25-08-2009 allowed the appeal preferred by the landlord ordering eviction of the tenant and dismissed the appeal preferred by the tenant confirming fixation of fair rent. Hence these two revisions by the tenant. The learned counsel for the petitioner – tenant contends that the conduct of the landlord in enhancing the rent in January 2002 and filing the petitions for fixation of rent and also for eviction is not bona fide. He contends that the tenant had paid the rents for the period from June 2002 to November 2002 and that the landlord did not visit the shop to collect the rent for the month of December which is due in January. A letter was addressed on 28-01-2003 calling upon the landlord to mention his bank account to which a reply was issued stating that he has already filed the R.C.C. Subsequently, for the months of December, 2002, January, February and March, 2003 the tenant sent rents under different demand drafts and, therefore, he has not committed any default. The lower appellate Court after considering the oral and documentary evidence as per Exs.A-4, A-9 to A-30 held that the landlord has established that he has been issuing receipts to the tenant whenever he is paying the rents and the tenant is also putting his signature on the counter foils of the rent receipts. Though the tenant was confronted with his signature on Exs.A-4 and A-9 to A-12, he denied his signatures on the said document. Ex.A-9 is the counter foil dated 09-02-2002, wherein it was mentioned that the rent for the month of November 2001 was paid by the tenant on that date, Ex.A-10 is the counter foil dated 27-03-2002, wherein it was mentioned that the tenant paid the rent for the month of December 2001 on the said date and Ex.A-11 is the counter foil dated 28-03-2002 wherein it was mentioned that the tenant paid the rent for the month of January, 2002 on the said date. Similarly, Ex.A-12 is the counter foil dated 07-5-2002 which discloses that the tenant paid the rent for the month of April 2002 on the said date. The entire receipt book containing the counter foils bearing Nos.1 to 100 was filed by the landlord. Counter foil No.9 makes it abundantly clear that the tenant paid the rent for the months of February and March, 2002 on 30-03-2002. Whereas, rent for the month of May, 2002 was paid by the tenant on 08-06-2002 as evidenced by Ex.A-4 counter foil. As the counter foil dated 30-03-2002 does not contain the signature of the tenant, it was not marked in the cross examination of RW 1 and the tenant is not disputing his signatures on Exs.A-13 to A-30 counter foils which are during the period 1998-99. A careful examination of the two counter foil books filed by the landlord clearly establishes that the landlord is in the habit of issuing receipts to all his tenants whenever he received the rents. In the letter addressed by the tenant dated 28- 01-2003, Ex.A-1 there is no mention about the landlord not issuing the rent receipts from 01-01-2002 onwards and thus, the said letter was addressed only to create a defence in the RCC and by the date of issuance of the said letter, the landlord has already filed the RCC for eviction and, therefore, no reliance can be placed on Exs. B-1 to B-5 entries in the account book filed by the tenant as he failed to establish that he is in the habit of maintaining the accounts in regular course of transaction. Further, the book wherein the entries are mentioned under Exs.B-1 to B-5 is said to have been verified by the ACTO on 30- 04-2004, but the same does not contain the seal or stamp of any of the officials of the sales tax department. Since the tenant has not filed the account books for the preceding years for establishing that he is in the habit of maintaining the accounts in regular course of transaction mentioning the payment of rents in his account books earlier to the account books contained under Exs.B-1 to B-5, no credence can be given to the said account book. PW 2 categorically stated that he intends to commence kirana business and there is no reason to disbelieve the said statement made by him. Holding thus, the learned appellate authority ordered the eviction of the tenant. It is now well settled that it is open for the landlord to choose the premises convenient to his business. In the case on hand, the landlord has established that himself is doing kirana business in Samalkota assisted by his son. Apart from that, since he clinchingly established that the tenant has committed wilful default in payment of rents for the period mentioned i..e, from June 2002 to November 2002 and the tenant failed to establish about his payment of rents, no infirmity is discernible with the findings of fact arrived at by the lower appellate Court on the basis of the evidence adduced by the parties, particularly when the tenant who produced Exs.B-1 to B-5 failed to establish that the said transactions were recorded in the usual course of business and the said fact was also not stated in Ex.B-1. In view of the same, the findings of fact arrived at by the lower appellate Court does not call for any interference. Similarly, the concurrent findings of fact arrived at by the Courts below in fixing the fair rent on the basis of the evidence adduced by the parties about the prevalent rent in the vicinity of the locality having regard to the fact that the premises is situated in a commercial area where adjacent shops are fetching rent @ Rs.3,500/- per month, also does not suffer from any infirmity. In the result, both the revisions are dismissed. However, as the tenant was directed to vacate and handover the possession to the landlord within three months from the date of the order i.e., 25-08-2009 and since he is continuing in the premises for more than eight months, keeping the same in view, he is granted four months time to vacate and handover possession of the petition schedule property to the landlord, subject to his paying rent @ Rs.2,500/- per month on or before tenth of every succeeding month and also on payment of arrears of rent as directed by the lower Court within month from the date of this order i.e., on or before 10-05-2010, if not already paid and on a further condition of giving an undertaking before the Rent Controller that he will vacate and handover the possession on expiry of four months from today. In default, the landlord is at liberty to proceed against the tenant in accordance with law. A. GOPAL REDDY, J 09-04-2010 ks