IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 2 07 OF 2009. Between: Mir Azam Ali, s/o Mir Hashim Ali, aged about 62 years, 0ccupation: Business, Tenant in Mulgi No. 5-2-23, Jambagh Road, Mozaam Jahi Market, Hyderabad. … Revision Petitioner V/s. Ahmed Ataullah, s/o Late Sibbgatullah, Aged about 69 years, 0cc. Rtd. Govt.service, r/o Hyderabad & 6 0rs. … Respondents Counsel for the Revision Petitioner: Sri M.Basith Ali Yavar Counsel for the Respondents : None Appeared THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION NO: 5 2 0 7 OF 2009 O R D E R : Aggrieved of the judgment dated 05-10-2009 passed in RA.No. 10 of 2008 by the learned Chief Judge, City Small Causes Court, Hyderabad, confirming the order dated 03-12-2007 passed in RC.No. 233 of 2006 by the III-Additional Rent Controller, Hyderabad, directing the petitioner-tenant to vacate the petition schedule premises and hand over vacant possession of the same to the respondents-petitioners 1 to 6 within one month from the date of judgment dated 05-10-2009 passed in RA.No. 10 of 2008, this Civil Revision Petition is filed by the Revision Petitioner-tenant. 2. For the sake of convenience, the parties to this revision will be hereinafter called as they are arrayed in RC.No. 233 of 2006 i.e., respondents 1 to 7 herein will be referred to as petitioners 1 to 7 respectively, and the revision petitioner will be referred to as the respondent. 3. The facts of the case are that the petitioners 1 to 6 are the owners and landlords of the petition schedule premises. By virtue of partition, the said mulgi fell to the share of petitioners 1 to 6. The partition was held as per compromise recorded in pursuance of the orders in I.A.No. 342 of 2002 in OS.No. 1448 of 1987, in pursuance of which, a decree has been passed by the IV Senior Civil Judge, City Civil Court, Hyderabad, dated 30-12-2003. Respondent is a tenant to the said mulgi. It is stated that by the date of partition, the partition of the property, petitioners become owners of the same, by virtue of the said partition has been brought to the notice of the respondent by 7th petitioner in the first week of January, 2004 and the respondent accepted the petitioners 1 to 6, as owners and landlords has agreed to pay monthly rent to them from January 2004 onwards. Respondent obtained the petition schedule premises for the purpose of carrying on his business from 7th petitioner. It is stated that the 7th petitioner being co-owner let out the said property to the respondent under rental agreement dated 08-2-2002. To avoid complications, 7th petitioner is arrayed as one of the petitioners in the petition. It is further stated that agreed monthly rent of Rs.1500/- is exclusive of water and electricity consumption charges. It is stated rent is payable on or before 5th of every month in advance. In spite of the same being intimated about the factum of petitioners 1 to 6 becoming owners of the petition schedule premises and that he has to pay rents to them, respondent failed to pay monthly rent to the petitioners 1 to 6 from January 2004, he filed OS.No. 20 of 2006 against 7th petitioner, seeking for injunction restraining him from raising any sort of interference in respondent’s possession and enjoyment of the petition schedule premises, on false grounds. In the said suit, petitioner No.7 put up his appearance and filed his counter, intimating the respondent and his counsel that the petition schedule premises fell to the share of other petitioners herein, by virtue of orders dated 30-12- 2003 passed in IA.No. 342 of 2002 in OS.No.1448 of 2007 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad and that the tenant has been duly informed about the ownership of the petitioners 1 to 6 and that he is bound to pay rents to them. Thus, it is evident that the respondent is aware of the partition and that petitioners 1 to 6 are owners of the same in respect of the petition schedule premises. It is further stated that the respondent has not only committed breach of agreement but also avoided provisions of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960. He failed to pay rent from January 2004 to April 2006 for 28 months @ Rs.1500/- per month amounting to Rs.42,000-00. Thus he is a willful defaulter in payment of rents and is liable to be evicted. 4. On the other hand, the respondent-tenant filed his counter and additional counter with the following averments in brief: It is averred that the petitioners 1 to 6 forged the signature of petitioner No.7, who is the actual landlord of the petition schedule premises and of the respondent, from whom respondent obtained the premises and made construction by incurring expenses. It is averred that the petitioners have not approached the court with clean hands. It is also averred that they suppressed real facts. The respondent further averred that he has no knowledge about the petitioners 1 to 6 becoming owners of the petition schedule premises, by virtue of compromise decree passed in OS.No. 1448 of 2007 on the file of IV- Senior Civil Judge, City Civil Court, Hyderabad, dated 30-12-2003. Further the respondent averred that he never received any intimation or notice of such event. He came to know of the same only when he appeared in the above case and after obtaining copies of the documents filed by the petitioners counsel. It is averred that the respondent obtained open space from the petitioner No.7 and constructed mulgi in it incurring expenditure of Rs.70,000/-. Thereafter, both parties executed rental agreement in March 2002 for 11 months on rent of Rs.1500/- per month, exclusive of electricity and water charges. After expiry of 11 months, period tenancy was extended orally. There is no practice of passing rent receipt. When the landlord visited the petition schedule premises, used to collect rent. No date was fixed for payment of rent. It is averred that the respondent directly paid rents till October 2005 to the petitioner No.7. Later in the month of November 2005, the attitude has been changed. He used to visit the petition schedule premises and disturbing the day-to-day affairs of the business of the respondent, as such he filed OS.No.20 of 2006. It is averred that to the credit of OS.No.20 of 2006 he deposited the rents through demand draft till March 2006. It is averred that the petitioners counsel as well as second petitioner know about the said fact, who is the petitioner and who is advocate has filed OS.No.20 of 2006 on 07-2-2006. Thereafter, another vakalath has been filed in the same for the petitioner No.7, M/s. Narayana Rao Mandewalakr and Sri Krishna Mandewalakr on 02-3- 2006 with the consent of the second petitioner. Thereafter, they filed written statement in the said suit, but the signatures of petitioner No.7 was the sole defendant in the said suit are different in the said two vakalath as well as in the written statement as well as in the present eviction petition. Original signature only appears on the first vakalath filed in OS.No.20 of 2006. It is averred that after appearance in the said case, respondent tendered rents through demand draft for an amount of Rs.1500/- per month each in the name of petitioner No.7. Same was received by their counsel on 16-6-2006. Thereafter, they were returned by filing a memo, as such, respondent again paid three months rent @ Rs.4500/- to the counsel for the petitioner for the months of April to June 2006. Thus, the respondent has not committed default in payment of rents. The contention of petitioners that respondent is liable to pay rents on or before 5th of every month in advance to the petitioners is not correct, as he has not given intimation about the change of ownership. In OS.No.20 of 2006, a written statement was filed for the petitioner No.7 but his signature is forged, as such, respondent filed certified copy of vakalath dated 07- 2-2006, which bears real signature of petitioner No.7. Therefore, the petition is liable to be dismissed. 5. On the basis of rival contentions, the trial court framed the following issues for trial: 1. Whether the respondent had committed willful default in paying rents from January 2004 to April 2006 and therefore, the respondent is liable to be evicted from the petition schedule premises ? 2. Whether the denial of title of the petitioners 1 to 6 over the petition schedule premises by the respondent is bonafide one or malafide one ? 3. Whether the respondent had obtained open space from petitioner No.7 on lease and got constructed the petition schedule premises by spending Rs.70,000/- ? 4. To what relief ? 6. To substantiate their case, the petitioners examined PWs. 1 to 3 and marked Exs.P1 to P3. On behalf of respondent, RWs. 1 to 3 were examined and Exs.R1 to R14 were marked. 7. On appreciation of the oral and documentary evidence adduced, and arguments advanced on either side, the trial court allowed the petition and directed the respondent to vacate the petition schedule premises and hand over the vacant possession of the premises to the petitioners 1 to 6 within one month, failing which the petitioners 1 to 6 are at liberty to get vacate the respondent from the premises under due process of law. 8. Aggrieved thereby, the respondent-tenant preferred R.A.No.10 of 2008 on the file of the Court of Chief Judge, City Small Causes Court, Hyderabad, contending that he is the tenant of petitioner No.7. Thereafter, petitioners became landlords. He further contended that he has taken open space from petitioner No.7 and constructed mulgi by spending Rs.70,000/- from his own funds and after completion of construction in the month of March, rental agreement has been executed between him and the petitioner No.7 on a monthly rent of Rs.1500/- and there is no passing of rent receipts from the beginning. Petitioner No.7 used to collect rents once in two or three months. He also contended that he paid rents to the petitioner No.7 upto October 2005. Thereafter, he refused to receive the rents and forced him to vacate the premises, so he filed OS.No.20 of 2006 and sought for depositing rents from November 2005 and he deposited rents for five months through demand draft to the credit of the said suit for the months, from November 2005 to March 2006. The Rent Controller has jurisdiction to entertain the case, as the said mulgi is a newly constructed mulgi. He further contended that after appearing in RC.No. 233 of 2006, he tendered rents to the petitioners counsel. Some of the receipts were marked as Exs.R8 to R14. Before that he paid rents upto December 2006. There are no arrears of rents as on the date of filing of the eviction petition. He further contended that taking advantage of there being no practice of passing of receipts alleging that there is practice of passing receipts, the eviction petition is falsely filed. He contended that as per Ex.R4, petitioner No.7 is the sole owner of the petition schedule premises. It is also contended that the petitioners failed to prove that respondent got information of the petitioners 1 to 6 becoming owners of the petition schedule premises by virtue of decree dated 30-12-2003, rendered in OS.No.1448 of 1987 and that he got obligation to pay rents to them from January 2006 onwards. He further contended that the trial court failed to appreciate the evidence adduced for the respondent. Therefore, he prayed that the impugned order is liable to be set aside. 9. The first appellate court after hearing either party and on considering the written arguments filed by either of the parties, framed the following points for determination: 1. Whether the Rent Controller has got jurisdiction to entertain the petition? 2. Whether the respondent malafidely denied title of the petitioners 1 to 6 over the petition schedule premises and also claimed permanent tenancy over the same, at any point of time ? 3. Whether the respondent has not committed willful default in payment of rents ? 4. Whether the impugned order is liable to be set aside ? 5. To what relief ? 10. On re-appreciation of the oral and documentary evidence adduced, considering the written arguments filed by either of the parties and on hearing their arguments, the first appellate court negatived all the above points against the respondent-tenant by confirming the orders passed by the trial court and ordered eviction of the respondent-tenant. 11. Aggrieved by the same, the present revision is filed. 12. The main contention of the learned counsel for the revision petitioner-tenant is that the ground of willful default is concerned, the rents were paid to the respondent No.7 herein till October 2005 and from November 2005 onwards he declined to receive the rents, therefore, he filed OS.No.20 of 2006 against the respondent No.7 for perpetual injunction. He contended that the respondent No.7 appeared and engaged the counsel and he had tendered the rent through demand draft and the same was received by the counsel of respondent No.7 and subsequently also he paid three months rent from April 2006 to June 2006. Therefore, there is no default on his part. The learned counsel further contends that the appellate court failed to appreciate the admission of the landlords on this aspect, therefore, the findings of the trial court based on surmises and conjectures and liable to be set aside. Further the revision petitioner incurred an expenditure of Rs.70,000/- for construction of the mulgi and the monthly rent was only Rs.1500/- , therefore, the Rent Controller has no jurisdiction to entertain the eviction petition. Further the appellate court without appreciating the fact that the revision petitioner-tenant has constructed the mulgi and the period of 15 years has not been elapsed, hence, the civil court alone has got the jurisdiction. Therefore, the findings passed by the appellate court is against the evidence on record and the same are liable to be set aside. 13. At the hearing, this court suggested the learned counsel for the revision petitioner that sufficient time will be granted to the revision petitioner-tenant to vacate the petition schedule premises. The learned counsel for the revision petitioner-tenant also fairly concedes and sought reasonable time to vacate the petition schedule premises. 14. Considering the submissions made by the learned counsel for the revision petitioner-tenant and on perusing the oral and documentary evidence placed on record and also the concurrent judgment of both the courts below, this court is of the opinion to direct the revision petitioner-to vacate the petition schedule premises on or before 30-06-2010 and he shall hand over the petition schedule premises to the respondents-landlords, failing which the respondents-landlords are at liberty to get vacate the revision petitioner-tenant from the petition schedule premises by due process of law and if necessary seek police aid. However, the revision petitioner is further directed that under any circumstances, he shall not renew his request hereafter seeking further extension of time to vacate the petition schedule premises. 15. With the above direction, the Civil Revision Petition is dismissed at the stage of admission. No costs. ______________________ JUSTICE T. MEENA KUMARI 06-11-2008. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 5 2 0 7 OF 2009 Circulation Entry No. 22 Date: 06-11-2009 Court Master : I s L Computer No. 43.