IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD , THE DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION Nos.5571 and 5802 of 2006 Between: Pydah Rama Mohan Rao. ... PETITIONER AND Dr. S. Chandra Reddy. ...RESPONDENT Counsel for the Petitioner : MR. M.S.R. SUBRAHMANYAM Counsel for the Respondent: MR. CH. DHANAMJAYA The Court made the following: COMMON ORDER: These revisions are preferred by the landlord against the judgment of the lower appellate Court dated 19.06.2006 allowing the rent appeals being RCC.Nos.8 and 9 of 2004 filed by the tenant. 2. The parties are referred to as landlord and tenant. The landlord filed two separate eviction petitions being RCC.Nos.35 of 1997 and 25 of 1998. The facts, in brief, are as follows: RCC.No.35 of 1997: (a) Landlord is the owner of Door No.21-1-5 situated in Pydahvari Lane, Kakinanda. The tenant had obtained Western side portion of the said building comprising of five rooms. It is stated that the tenant has his own property situated to the West of the schedule property and he wanted to construct a nursing home therein. It is alleged by the landlord that at the time of construction the tenant had obtained the said portion of five rooms of landlord’s building on lease on 31.04.1992 for the purpose of keeping his building material. The monthly rent agreed was Rs.800/- per month payable on first of every succeeding month. Though the tenant completed construction of nursing home he did not vacate the schedule property and started using it for the purpose of keeping serious patients and dead bodies in the said portion. The said conduct has caused lot of inconvenience and nuisance to the landlord as well as the neighbours. It is also alleged that the tenant failed to pay rents for the months of September 1995 and April and May 1997 and only after the landlord issued notice dated 04.06.1997 – Ex.A1 that the tenant sent the arrears of rent by money order and also sent a reply notice – Ex.A2 dated 06.06.1997 making false allegation as if the landlord refused to receive the rent tendered for the months of April and May 1997. The said money order sent by the tenant was received under protest by the landlord and the present eviction petition is filed on the ground of change of user as well as creating nuisance and willful default. (b) The defence of the tenant was that there was no willful default, as alleged and that he actually approached the landlord to receive the rents but it was malafide refused and thereafter, the rent was sent to the landlord’s Kakinada address on 05.06.1997, which was received under protest by the landlord. Subsequently, the rents were sent by registered post by demand draft and though the rent for July 1997 was paid on 31.07.1997, the landlord filed the present eviction petition. It is also alleged that during the pendency of the eviction petition the bank account of the landlord was furnished and since then there is no default whatsoever. The tenant also denied that he had taken the schedule premises for keeping the building material, as alleged. He also denied any nuisance to the landlord as well as to he neighbours and asserted that he used the schedule premises initially for hospital purposes and he is continuing to use for the same purpose. RCC.No.25 of 1998: (c) Landlord filed eviction petition in RCC.No.25 of 1998 on the ground that subsequent to filing RCC.No.35 of 1997 the tenant has caused serious damage to the property by erecting angulars on the Western side of the compound wall and fixed barbed wire to the angulars and also fixed PVC pipeline by making deep grooves on the wall resulting in damage to the compound wall as well as the house and as such, is guilty of acts of waste, which are totally unauthorized. (d) The tenant denied causing any acts of waste and liability for eviction. (e) Both the said RCC’s were clubbed together and common evidence was recorded and common judgment was rendered by the learned Rent Controller. 3. The landlord examined himself as P.W.1 and the Advocate Commissioner appointed pending RCC was examined as P.W.2 while the tenant examined himself as R.W.1. The notice and the reply notice exchanged between the parties prior to the eviction case was marked as Exs.A1 and A2 apart from the office copy of the landlord’s notice, photographs and the tenant’s notice marked as Exs.A3 to A5 respectively. The tenant filed money order coupon – Ex.B1 and photocopy of the demand draft as Ex.B2 and legal notice and letters exchanged between the parties were marked as Exs.B3 to B13. P.W.2’s report is marked as Ex.C1. 4. On the basis of the aforesaid evidence, the learned Rent Controller found that the tenant was using the premises for the purpose other than for which it was leased out and also found that the tenant did not commit willful default in payment of rent and to the extent of damage to the property, the tenant has committed acts of waste, which have impaired the value and utility of the said property and accordingly allowed the RCC’s. 5. The tenant preferred RCA.No.8 of 2004 against RCC.No.25 of 1998 and RCA.No.9 of 2004 against RCC.No.35 of 1997. On reconsideration of the evidence, the appellate Court disposed of and allowed both the appeals by cryptic order. The appellate Court noted that even according to the tenant the construction of the fourth floor of the nursing home is still not completed and accordingly, came to the conclusion that there is no change of user. The appellate Court also found that there is no independent evidence to establish nuisance being created by the tenant. Further with respect to acts of waste also the appellate Court overruled the findings of the learned Rent Controller by holding that the Commissioner’s report does not show any acts of waste. 6. The aforesaid order of the appellate Court is in challenge at the instance of the landlord in CRP.No.5571 of 2006 directed against the order of the appellate Court in RCA.No.9 of 2004 and CRP.No.5802 of 2006 is directed against the order of the appellate Court in RCA.No.8 of 2004. 7. Heard Mr. M.S.R. Subrahmanyam, learned counsel appearing on behalf of the landlord and Mr. Ch. Dhanamjaya, learned counsel appearing on behalf of the tenant. 8. Learned counsel for the landlord has criticized the judgment of the appellate Court, as it has failed to discuss the oral and documentary evidence and merely by citing the decision of the Supreme Court in MOHAN LAL v. JAI BHAGWAN [AIR 1988 SC 1034] the ground of change of user is held against the landlord. Similarly, the appellate Court has completely misread the evidence of Advocate Commissioner as P.W.2 and his report Ex.C1. 9. Learned counsel for the respondent – tenant, on the contrary, submits that since the premises was let out for the purpose of storing building material during the construction of nursing home and as the fourth floor is still being constructed, it cannot be said that the construction of nursing home is completed. He, therefore, submits that the tenant is continuing to use the premises for the same purpose and neither there is any change of user nor any damage, as alleged. 10. The report of the Advocate Commissioner, which was discussed in detail by the learned Rent Controller in Para 19 of it’s order shows that there is a well on the North-East corner of the schedule property, which is used for throwing dust and waster newspapers. Further, a bathroom on the North-East corner emanates foul smell and is not in usable condition. The inner ceiling of the front room is in dilapidated condition and the plastering of the roof has fallen down and iron rods are visible. In another room the window is completely eaten away by white ants. I have perused the report of the Commissioner – Ex.C1, material portions of which read as follows: “On Western side wall at one point to the drainage channel there is PVC pipe visible. In the first room the respondent kept barbed wire, construction materials are there. The plastering of the walls and the roof is in dilapidated condition and iron rods are visible. There is no electricity supply but electricity meter and wire are visible. In the second room there are two iron cots, cement bags and generator and other construction material and two heavy wooden rafters are placed to support the slab. Further on the South-West corner there is a hole in the wall and PVC pipe is visible. The roof of the third room is having wooden rafters etc.” 11. The evidence and the cross-examination of the aforesaid witness examined as P.W.2 is only to the extent of suggesting to him that on the day on inspection plastering work was already completed and the rest of his evidence was not subjected to any cross-examination. It is, therefore, noticeable that the allegation of the landlord, as P.W.1, and the evidence of the Advocate Commissioner, as P.W.2, read with Ex.C1 report shows that there is extensive damage to the schedule premises, which, no doubt, has affected the value and utility of the said building. The damage to the roof is also exhibited, as is evident, from the cross-examination of the landlord. ‘It is not true to suggest that the roof of the schedule portion is damaged, as no repairs were effected and not due to falling of the building material…It is not true to suggest that the respondent has fixed barbed wire to the iron angulars and also fixed PVC pipeline with my permission…’ This would, therefore, establish that the tenant is now taking a stand in the evidence, as if, the alterations made in the said property are with permission of the landlord. The said stand, however, is not taken in the counter filed and the counter is, in fact, one of complete denial. The lower appellate Court, therefore, has obviously missed on this evidence on record and has come to an erroneous conclusion, as if, there are no acts of waste committed by the tenant. 12. The legal position with regard to the acts of waste, which result in eviction of the tenant was considered by me in PODUGU APPA RAO v. GRANDHI SATHIRAJU[1] based on various decisions including the decisions of the Supreme Court, relevant portions of which are extracted hereunder: “5. Section 10(2)(iii) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 (for short "the Act") provides that the landlord is entitled to seek eviction of the tenant on the ground that the tenant has committed acts of waste which is likely to impair materially the value and utility of the building. A similar case came up for consideration before the Hon'ble Supreme Court in Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors. [1996]2SCR997 wherein the Supreme Court observed as follows, 12. Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act which provides a ground for eviction of tenant reads as under: 13 (2)(iii).- that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land. A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing.... 14....The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2)(iii) of the Act.... 6. Similar provision was considered in G. Reghunathan v. K.V. Varghese [AIR 2005 SC 3680] wherein the Supreme Court referred to its earlier judgment and held as follows, “...In Om Prakash v. Amar Singh ([1987] 1 SCR 968) interpreting the same provision, it was held that the question whether a construction materially altered the accommodation was a mixed question of fact and law. The dictionary meanings of the expressions "materially" and "alter" were considered. It was held to mean "a substantial change in the character, form and the structure of the building without destroying its identity". It had to be seen whether the constructions were substantial in nature and they altered the form, front and structure of the accommodation. No exhaustive list of constructions that constitute material alteration could be given. The determination of that question depended on the facts of each case...” 7. Further in British Motor Car Co. v. Madan Lal Saggi [AIR 2005 SC 240] the above two decisions were also considered by the Supreme Court and it was held that, “...When the construction is alleged to have materially impaired the value and utility of the premises; the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building...” On the facts and circumstances of the present case, therefore, I am of the opinion that the lower appellate Court committed serious error in reversing the said finding of the learned Rent Controller by excluding the evidence on record. The said point, therefore, deserves to be answered in favour of the landlord. 14. So far as the change of user is concerned, the tenant as R.W.1 admits in his cross-examination that he was running his nursing home in Ramayya Street prior to purchasing vacant site situated to the West of petition schedule property. Later, R.W.1 has constructed a hospital and opened it in May 1993. Though he contended that the fourth floor of the hospital is still not completed, the schedule premises is being used for the same purpose. He, however, admits that in 1993 itself the slab of the fourth floor was also completed and he has applied for regularization of the construction by paying necessary fee and the construction was regularized by the Government. The above evidence, therefore, shows that the purpose for using the schedule premises was fulfilled after May 1993 itself and even according to R.W.1 the schedule house is not fit for running nursing home and for human inhabitation. It is for that reason that the allegation of the landlord that the tenant is using the schedule premises for keeping dead bodies and serious patients appears probable. In any case, the purpose for which the tenant had secured the said premises having been fulfilled, it cannot be said that the tenant continues to use the premises for the same purpose when the purpose itself does not exist on account of completion of construction of the entire hospital. The said evidence on record including the admissions of R.W.1 also were excluded by the lower appellate Court from consideration and as such, the findings reached by the lower appellate Court are clearly not sustainable. 15. Since the finding on willful default was against the landlord and as he did not question the same before the appellate Court, the learned counsel for the landlord has fairly not pressed the said aspect in these revisions. It is, therefore, not necessary to deal with the said aspect. 16. In view of the findings on acts of waste and causing nuisances and change of user being held against the tenant, the revision petitions deserve to be allowed. The judgment of the lower appellate Court is set aside and that of the learned Rent Controller is restored. The tenant is granted three (3) months time to vacate and hand over the vacant possession of the schedule premises to the landlord subject to the condition of the tenant filing usual undertaking before the learned Rent Controller on or before 05.06.2010 that he shall not alienate or create third party interest and shall pay the rents up to the date of vacation. In the event of non-filing such undertaking, as above, the landlord shall be free to seek execution of the order of the eviction in accordance with law. With the above directions, the civil revision petitions are allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J April , 2010 DSK [1] 2009 (2) ALT 15