· THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR + C.R.P. NOs. 2056 & 2061 OF 2007 % Dated 30.4.2010 # Smt. Urmila Devi ….Petitioner Vs. $ Subhash Kumar ….Respondent ! Counsel for petitioner: Mr. D. Prakash Reddy, Mr. Fazal Yousufuddin, ^Counsel for Respondent: Mr. Mohd. Ghulam Hussain, <GIST: > HEAD NOTE: ? Cases referred 1) (1998) 5 Supreme Court Cases 331 2) 1997 (1) ALT 105 3) AIR 1976 ALLAHABAD 517, 4) AIR 1999 SC 1441 5) AIR 2004 SC 2162 THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NOs. 2056 & 2061 OF 2007 Date of order: 30.04.2010 Between: C.R.P. NO. 2056 OF 2007 Smt. Urmila Devi …Petitioner and Subhash Kumar ..Respondent and C.R.P. NO. 2061 OF 2007 Rupender Pershad …Petitioner and Subhash Kumar ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NOs. 2056 & 2061 OF 2007 COMMON ORDER: 1. These two revisions are preferred by the owners and arise out of two eviction petitions filed against the same tenant. For the sake of convenience, the parties are referred to as landlord (which refers to both ‘landlord/landlady’) and tenant. 2. The common facts, in brief, are as follows, The schedule premises No. 5-4-60 situated at Muralidhar Bagh, Hyderabad was let out, in two different portions viz., southern and northern portions, to the father of the tenant on a monthly rent of Rs.35/- and Rs.40/- respectively under a rental deed dated 19.4.1975. The father of the tenant and after him, the tenant himself was carrying on business under the name and style of Young India Cane Industries. The eviction petitions were filed claiming willful default in payment of rents for the months of May to July, 1999 as well as on the ground that the tenant has ceased to occupy the schedule premises for a period of more than two years prior to filing of the eviction petitions and has kept the schedule premises closed under his lock and key. 3. The tenant filed counter, inter alia, contending that his father had obtained vacant land in the year 1956 from the predecessor of the landlord. In other words, the tenant has set up a claim that he has constructed the schedule premises on his own costs and he is paying rents. He also pleaded that from the beginning the rent was being collected through a rent collector by the landlord. With respect to rent note, he contended that the father of the tenant was made to sign the rent note without reading and explaining the contents thereof. He also contended that there was a practice developed over the years that the rent collector collected the rents at his convenience once in two or three months and receipts were not being issued regularly. With respect to willful default, the tenant contended that he has paid the rent upto April, 1999 and thereafter the representative of the landlord collected the rents from May to July, 1999 and promised to send receipts and believing the general practice, the tenant did not insist. Later in August, 1999 when the tenant tendered the rent, the representative of the landlord demanded rent of Rs.600/- which was refused to be given by the tenant as it is exorbitant. According to the tenant, taking advantage of non-giving receipts from May to July, 1999 the eviction petitions were filed claiming willful default. To the extent of allegation of the landlord that the tenant has ceased to occupy the schedule premises, the tenant has denied the said ground and prayed for dismissal of the eviction petitions. 4. Since both the eviction petitions are against the same tenant raising identical grounds, both the parties filed a joint memo for a joint trial and common evidence was recorded in RC No. 361 of 1999. The petitioner in RC No. 360 of 1999 was examined as P.W.1 and the General Power Attorney holder of landlord was examined as P.W.2. The landlord marked Exs. P1 to P3- rent receipts, Ex.P4- rent receipt book, ExP5-order in IA No. 468 of 1999, Ex.P6-commissioner’s report and Exs.P8 and P9- extracts of assessment registers maintained by the Municipal Corporation of Hyderabad, Ex.P7-certified copy of judgment in RA No. 122/4/58 showing that earlier tenant was ordered to be evicted in respect of the same schedule premises and Exs.P10 and P11-medical certificates. The tenant, though cross-examined the landlord’s witnesses, did not lead any evidence and ultimately opportunity to lead evidence given to the tenant was not availed. The right of the tenant to adduce evidence stood forfeited as there was no representation on behalf of the tenant on the dates on which case was posted for further cross-examination of P.W.2 and for evidence on behalf of tenant and ultimately on 21.12.2000 the learned Rent Controller heard the arguments and allowed both the eviction petitions. 5. The tenant thereafter filed two applications – IA Nos. 79 and 80 of 2001 in RC Nos. 360 and 361 of 1999 respectively seeking to set side the eviction order on the ground that there was an exparte order against him and that he was prevented by sufficient cause. The said applications were contested by the landlord and were dismissed on 19.3.2001. Aggrieved thereby, the tenant filed RA Nos. 229 and 230 of 2001. He also filed RA Nos. 175 and 176 of 2001 against the eviction orders and decrees. The lower appellate court allowed RA Nos. 229 and 230 of 2001 and set aside the eviction orders as well as the order setting the tenant exparte. Aggrieved thereby, the landlord preferred CRP Nos. 4827, 4773, 4891 and 4859 of 2005. This Court, by common order dated 29.8.2006, considered all the four revisions and allowed the revision petitions by holding that the tenant has failed to make out any valid and sufficient cause and the exparte orders were upheld, but consequently this Court did not go into the merits of the order of eviction, as the lower appellate court had set aside the eviction order based upon the judgment in RA Nos. 229 and 230 of 2001. This Court remitted all the appeals to the lower appellate court for fresh consideration on merits. Under the impugned order dated 28.2.2007 the lower appellate court dismissed RA Nos. 229 and 230 of 2001 in view of the findings reached by this Court in the revisions referred to above in so far as lack of sufficient cause found against the tenant is concerned. However, the lower appellate court considered RA Nos. 175 and 176 of 2001 on merits and allowed both the appeals by setting aside the findings of the learned Rent Controller that the tenant is guilty of willful default as well as the ground that the tenant has ceased to occupy the premises for over two years as alleged. The said order is under challenge in these two revisions at the instance of the landlord. 6. Heard Mr. D. Prakash Reddy, learned senior counsel appearing for the landlord and Mr. Mohd. Gulam Hussain, learned counsel appearing for the tenant. 7. It is contended by the learned senior counsel Mr. D. Prakash Reddy that the findings of the lower appellate court that there is no willful default on the part of the tenant is unsustainable, inasmuch as there is no evidence led by the tenant. He points out that the tenant has taken a specific stand in the counter that he has paid the rent for the default period and after filing of the eviction case, he has once again paid the rent as per the legal advice. He therefore submits that the tenant has failed to establish his case that he has paid the rents for the default period, but the lower appellate proceeded to think that there was a practice of payment of rent at regular intervals and therefore even if there was a default on the part of the tenant, the same cannot be held to be willful. He further submitted that to the extent of second ground of ceasing to occupy the premises, again there is no evidence on the part of the tenant, but the lower appellate court has set aside the finding of the learned Rent Controller on the ground that the burden lies upon the landlord to prove the said fact and except the testimony of PWs. 1 and 2, there is no other evidence in support thereof. He submits that the lower appellate court also found that the landlord filed a suit for injunction vide OS No. 3070 of 1999 against the tenant apprehending that the tenant was making unauthorized alterations to the schedule premises by taking up construction and in that suit an advocate commissioner was appointed in IA No. 469 of 1999 who had filed a report-Ex.P6 and the lower appellate court relied upon the said report wherein the learned advocate commissioner visited the suit schedule premises and found inside the premises two old cane chairs, one rotating chair, electrical meter with a new board and the advocate commissioner also found in front of the foot path in the premises seven new single chairs, three sofa cane chairs and 9 new hanging chairs. He, therefore, submits that the lower appellate court concluded that existence of new chairs indicate that the tenant was carrying on business even on the date of visit of the advocate commissioner to note down the physical features and based thereon, it held that the claim of the landlord that the tenant has ceased to occupy the premises, is not sustainable. The learned senior counsel contends that the said report of the advocate commissioner was, firstly, misread by the lower appellate court and secondly, it speaks of the situation at the schedule premises as existing after the eviction petitions were filed and as per the landlord’s contention the tenant has ceased to occupy the premises for two years prior to filing of the eviction petitions and as such even assuming that the advocate commissioner found some new chairs on foot path in front of the schedule premises, the same would not rebut the allegation of the landlord. The learned senior counsel also made further attack on the findings of the lower appellate court on point No.3 where the lower appellate court found that there is no material to prove that the father of the tenant had taken the vacant site on lease and constructed premises thereon and the said contention of the tenant was rejected by the lower appellate court and therefore, the learned senior counsel states that the said contention of the tenant, in fact, amounts to malafide denial of title and though the said ground is not raised in the eviction, the said ground emerges from the counter filed by the tenant himself and even on that ground, the eviction petitions deserve to be allowed. 8. Per contra, Mr. Gulam Hussain, the learned counsel appearing for the tenant contended that the pleadings of the landlord with respect to both the grounds are extremely vague, and he has drawn the attention of the court to paragraphs 4 and 5 of the eviction petition to contend that with respect to plea of willful default, the landlord has not pleaded as to whether the rent is payable in advance or after expiry of every month and with regard to the second ground also in paragraph-6 of the eviction petition, no particulars are mentioned by the landlord except stating that the tenant has ceased to occupy the premises. He has relied upon the decision of the Supreme Court reported in M. Naresh Kumar Vs. B. Nagalaxmi [1] to contend that the claim of willful default is not sustainable as the tenant has established the practice of collection of rents at regular intervals. He also relied upon a decision of this Court reported in Mrs. Sons Optics represented by partner Abdul Kareem Vs. Shyam Sunderbhargava [2] and also on the finding of the lower appellate court that even if there was default, it cannot be said to be a willful. To the extent of second ground of ceasing to occupy he contends that the landlord has filed a suit for injunction and an advocate commissioner was appointed who gave a report-Ex.P6 and in the said report the advocate commissioner found that minor works were being carried out in the schedule premises and old and new furniture was found and as such it cannot be said that the tenant has ceased to occupy the premises. He also submitted that no independent evidence was led by the landlord, as not a single neighbour of the tenant was examined. He also relied upon a decision of the Allahabad High Court reported in Smt. Ram Mani Devi Vs. Rent Control and Eviction Officer and others [3] to contend that the landlord must establish animus on the part of the tenant that he has abandoned the tenanted premises. He, therefore, contended that the order of the lower appellate court does not warrant any interference in these revisions. 9. During the pendency of these revisions, the landlord has filed applications-CRPMP Nos. 1084 and 1101 of 2010 requesting this Court to receive copy of a letter of the tenant dated 28.7.1998 submitted to the Sales Tax Department and the proceedings of the Asst. Commercial Tax Officer dated 6.8.1998. It is alleged in the affidavit filed in support of the said application that during the pendency of the revisions, the landlord has come to know about the factum of the tenant intimating the closure of his business to the Commercial Tax Department and therefore the landlord has made an application under the Right to Information Act and in pursuance thereof, the Sales Tax Department has furnished copies of letter of the tenant as well as the proceedings of the Assistant Commercial Tax Officer. The above said two documents, were not in possession of the landlord earlier nor were within his knowledge earlier and they are sought to be received as additional evidence. Though the prayer in the said application was corrected from ‘Order 41, Rule 27 of CPC’ to ‘Section 151 CPC’ and ‘additional evidence’ was corrected as ‘additional material papers, I have allowed both the learned counsel to address on the said applications, as, in substance, the landlord seeks reception of additional evidence under Order 41, Rule 27 of CPC and pleaded the necessary ingredients in support thereof. The said two documents having emanated from the Commercial Tax Department and are supplied to the tenant through letter of Deputy Commercial Tax Officer, M.J. Market Circle, Hyderabad in RC No. ABS/08/1/1270, dated 3.7.2009 under Section 6 of the Right to Information Act, 2005, and as they relate to the period prior to filing of the eviction petition, I am of the view that they are both relevant and their genuineness cannot be doubted. The counter filed by the tenant contains a general denial of the said documents and the contentions raised are that there is no provision in the Rent Control Act to receive the alleged papers as additional material papers. In the facts and circumstances, I am satisfied that the said documents are, not only relevant, but they have a bearing on the adjudication of the ground relating to ceasing to occupy the schedule premises as alleged by the landlord against the tenant. Ignoring the wrong provisions of law i.e., Section 151 of CPC mentioned in the said applications and treating the said applications as filed under Order 41, Rule 27 of CPC, the aforesaid two documents are received as additional evidence and CRP MP Nos. 1084 and 1101 of 2010 are allowed accordingly. 10. In the facts and circumstances of the case, the following questions arise for consideration, (1) Whether the finding of the lower appellate court that the tenant has committed default, but it is not willful, is sustainable? (2) Whether the finding of the lower appellate court that the ground of ceasing to occupy the schedule premises is not established in view of the advocate commissioner’s report-Ex.P6, is sustainable? and (3) Whether the finding of the lower appellate court on point Nos.3 negativing the tenant’s contention that he is a lessee of vacant site only and that the landlord is not the owner of the schedule premises, does not amount to denial of title by the tenant? 11. POINT NO:1:- The tenant has categorically pleaded in the counter that he has paid the rents even for the default period and therefore for assessing the ground of willful default, the plea taken by the tenant that there was a practice among the parties that the rents were paid at regular intervals is therefore really not relevant. The specific case of the tenant is that he had paid the rents for the default period, but the receipts were not given to him and only in the later month of August, 1999 the representative of the landlord demanded the rent at Rs.600/- which was not accepted and refused to be paid by the tenant. It is, however, noteworthy that the tenant has not tendered himself for evidence nor has adduced any other evidence. His pleadings in the counter are, therefore, not sufficient to establish his case in the absence of any evidence on his part. The tenant being a party to the proceedings ought to have entered into the witness box and deposed in support of the averments made in the counter. The Supreme Court in a decision reported in Vidhyadhar Vs. Mankikrao [4] has specifically dealt with the issue and in paragraph-16 the Supreme Court held, “(16) Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” Apart from the above, the cross-examination of P.W.1 shows that he used to collect rents on behalf of landlord and some times the tenant also used to come and pay the rents. He denied the suggestion that the receipts were not being issued simultaneously with the payment of rents. He admits that after filing of the eviction petitions, he received three months rent. There was no suggestion to P.W1 that the tenant has paid the rent for the default period, but the receipts were not issued immediately nor there is any suggestion that for the month of August, 1999 the rent of Rs.600/- was demanded and that is why the tenant did not pay the rent. The lower appellate court has merely proceeded to consider that there was a previous practice of collecting the rents once in two or three months based upon Exs. P2 and P3 and the landlord never protested. The lower appellate court, therefore, proceeded to think that even if the rent for the default period was not paid, as per the usual practice, the tenant cannot be said to be a willful defaulter, particularly when no notice was given by the landlord relating to willful default prior to filing of the eviction petition. Firstly, there is no such requirement of giving notice prior to filing of the eviction petition in view of the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The lower appellate court has, therefore, apparently got swayed by the provisions of Tamil Nadu Buildings (Lease, Rent and Eviction) Control Act, where a notice of willful default is necessary to be issued before filing of eviction petition. Secondly, when the case of the tenant himself is that he has paid rent for the default period, the lower appellate court has presumed non-payment of rent and non-issuance of receipts by the landlord. Based upon the above assumption, the lower appellate court found that the tenant committed default, but is not willful. The said finding of the lower appellate court is clearly unsustainable especially in the absence of any evidence on the part of the tenant. The said finding, therefore, being perverse is liable to be reversed and is accordingly set aside. 12. POINT NO.2:- section 10 (2) (v) Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 provides the aforesaid ground in the following words, “that the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause;’ It is the specific case of the landlord in the eviction case that the tenant has ceased to occupy the schedule premises and he has kept it under lock and key for the past two years without doing any business. In the counter filed by the tenant in paragraph-5 he has merely denied the said allegation. Even for this ground there is no evidence on the part of the tenant whatsoever. If really the tenant was carrying on business, he could have easily established the same by showing the books of account, electricity bills, telephone bills, proof of business transacted, payment towards sales tax etc. There is absolutely no evidence on the part of the tenant to show that for two years preceding the eviction petition, he was carrying on business. It has to be noted that the eviction petition was filed on 20.7.1999 and the advocate commissioner’s report-Ex.P6 is dated 28.7.1999. The inspection of the premises by the advocate commissioner was made on 27.7.1999. Thus by the date the advocate commissioner visited the schedule premises, the landlord has already filed the eviction petition. The report of the advocate commissioner shows that some construction material is lying in the schedule premises such as iron rods, tarpaulin, plastic and electricity wiring pipes, one old cane shelf, one old counter, 4 old zinc sheets lying on the ground, two pairs of clothes of workers, 15 old supporting rods, 7 old wooden planks, 5 new angle beams of 8 to 10 feet, 30 old iron sheets, 4 Zabbas, one spade, small bag of plastic electrical bends, 800 bricks, mixed sand heap, half a lorry sand etc. The said report, therefore, clearly shows that the tenant was intending to take up some construction work in the premises and it is not as if any stock of goods was found in the premises. Further some new chairs were found by the advocate commissioner on the foot path in front of the shutters and it was taken by the lower appellate court as conclusive proof of the tenant carrying on business. Firstly the said report is totally inclusive of any evidence of business being carried on in the premises even on the date of inspection and secondly the said report is much after the filing of the eviction petition and has no reflection with regard to the period of two years anterior to the eviction petition during which the tenant has ceased to occupy the premises. The Supreme Court in a decision reported in Ram Dass Vs. Davinder [5] has considered the similar situation where the tenant was selling sweats and vending tea