THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 756 of 2003 Date of order: 30.7.2010 Between: Velagala Veera Venkata Satyanarayana Reddy …Petitioner and Adda Manikyamba and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P.NO. 756 of 2003 ORDER: This is a tenant’s revision against the concurrent orders of eviction passed by the learned Rent Controller and confirmed by the Appellate Authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short “the Act”) on the grounds of willful default in payment of rent and the tenant securing an alternative accommodation. The parties are referred to as “the landlady” and “the tenant”. The facts, in brief, are that the deceased-original landlady let out the schedule premises to the tenant in 1980 and as per the findings of both the courts below, the rent payable at the time of filing of the eviction petition was Rs.275/- per month. The landlady had claimed that the rent payable was Rs.600/- per month, but as there was no evidence in support of the same, the tenant’s case that the rent was Rs.275/- per month was accepted by both the courts below. The default, claimed by the landlady, was for the period from April, 1989 onwards, whereas the case of the tenant is that he had filed an application to deposit the rents under Section 8 of the Act being RCC No. 1 of 1990 seeking permission to deposit the rent from December, 1989 onwards. It is the further case of the tenant that he secured an interim order in RCC No. 1 of 1990 permitting him to deposit the rents every month and accordingly he was depositing the rents. The landlady also raised a ground of bona fide personal requirement which, however, has been rejected by both the courts below and the said ground, therefore, does not fall for consideration in this appeal. The third ground on which the landlady sought eviction was that the tenant secured alternative accommodation as he owned two mulgies adjacent to the schedule premises, out of which he let out one for a liquor shop and another mulgi was vacant at the time of filing of the eviction petition. With respect to the ground of alternative accommodation, the tenant filed a counter admitting that he owns only one shop and the same was already let out and was not vacant at the time of filing of eviction petition. On behalf of the landlady, PWs 1 to 3 were examined, whereas the tenant examined himself as R.W.1. The learned Rent Controller framed the following points for consideration, (1) Whether the bona fide requirement of the schedule premises for the petitioner as pleaded in the petition is true and correct? (2) Whether the respondent committed willful default in payment of rent for the schedule building? (3) Whether the petitioners are entitled for eviction orders? (4) To what relief? On the basis of the evidence adduced and the pleadings of the parties, the learned Rent Controller came to the conclusion that the tenant committed willful default and also held that the tenant secured alternative accommodation as he admittedly owns one shop adjacent to the schedule premises and accordingly ordered eviction. On appeal, the appellate authority confirmed both the said findings and further held that the tenant has not been depositing the rents regularly as per the interim orders in RCC No. 1 of 1990, as admittedly he has neither deposited the rents nor paid the rents to the landlady, and consequently the default was held to be willful even on that respect. The aforesaid orders of both the courts below are challenged by the tenant in this revision. I have heard both the learned counsel for the parties. While it is contended on behalf of the tenant that with respect to default in question there is no clear finding by either of the Courts below and both the Courts have proceeded and taken into consideration the subsequent default said to have been committed by the tenant in not deposing the rents in pursuance of the orders in RCC No. 1 of 1990. The learned counsel states that no application under Section 11 of the Act was filed by the landlady and as such in view of the decision of a Full Bench of this Court reported in Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao and another [1] the subsequent default cannot be taken into co0nsideration. To the extent of alternative accommodation the learned counsel states that no such contention was subject matter of any specific issue before the learned Rent Controller and as such the said ground relied upon by the landlady, without framing an issue, is not sustainable. The learned counsel also criticizes the appellate authority’s judgment where it went into the aspect of the subsequent default and gave a finding which was not even pleaded by the landlady. The learned counsel for the landlady, on the contrary, contends that apart from the finding on default in question, both the courts below have further noticed the conduct of the tenant in not depositing the rents even as per the interim orders in RCC No. 1 of 1990. It is also contended that to the extent of alternative accommodation, the same was admitted by the tenant himself and merely because it was not vacant at the time of filing of the eviction petition, is no ground to absolve the tenant of the ground of securing alternative accommodation. The learned counsel also relied upon a decision of this Court in Ballani Ranganayakulu and others Vs. Mattupalli Nageswara Rao [2] for the proposition that delay or default on the part of the tenant in not paying the rent even after notifying the default has to be held willful default. To the extent of ground of alternative accommodation, a decision of this Court in Shamlal Tiwari Vs. Najmunnisa Begum @ Zainabunnisa Begum, Zebunnisa Begum and Sajidunnisa Begum [3] is cited for the proposition that when a tenant secures an alternative accommodation in the name of his wife, the burden is on the part of the tenant to establish that he has nothing to do with the said accommodation and in the absence of such evidence, it has to be held that the tenant has secured alternative accommodation and is liable to be evicted on that ground. On the facts and circumstances of the case and submissions of the learned counsel for the parties, the points that fall for consideration is, (1) Whether the Courts below are justified in passing eviction orders on the ground of willful default? (2) Whether the finding of courts below that the tenant secured alternative accommodation is sustainable? POINT NO.1:- So far as the first point is concerned, the appellate authority has noticed in paragraphs 43 and 44 of its judgment that even for the admitted rent of Rs.275/- per month, there was no evidence to establish payment of rent by the tenant to the landlady. Further RCC No. 1 of 1990 filed by the tenant for deposit of rent was dismissed as abated. Eventually therefore, there is no order permitting the tenant to deposit the rents. The period covered by the said RCC No. 1 of 1990 was from December, 1989 onwards, whereas the willful default in the present case, as claimed by the landlady, is from April, 1989. There is, therefore, no evidence with regard to payment of rent from April, 1989 to December, 1989 and so far as the rent from December, 1989 is concerned, though the tenant secured an interim order permitting him to deposit the rent from December, 1989 onwards, he committed defaults in depositing the said rents. Even if the default for the subsequent period is ignored, as contended by the learned counsel for the tenant, the default with respect to the period claimed in the eviction petition i.e., from April, 1989 to December, 1989 in any case stands established, as there is no evidence on the part of the tenant showing either payment or deposit of rent for the aforesaid period. It is now well settled that the burden of proof that there is no default and if so, it is not willful, is entirely on the tenant. Except his own self- serving evidence, no other evidence is produced and as such the findings of the learned Rent Controller, which is also confirmed by the appellate authority, so far as the default for the aforesaid period is concerned, deserves to be confirmed. There are no grounds to interfere with the said finding. The learned counsel for the tenant is, however, right in contending that the subsequent default after filing of the eviction petition could not have been taken into consideration by the appellate authority, inasmuch as there is no petition under Section 11 of the Act filed by the landlady. This part of contention is fully supported by the decision of the Full Bench of this Court i n Vinukonda Venkata Ramana Vs. Mootha Venkateswara Rao and another (1st supra). However, the point No.1 is answered in favour of the landlady. POINT NO.2:- So far as the point No.2 is concerned, I have seen the pleadings of the parties whereunder the ground of tenant having a shop adjacent to the schedule premises was specifically pleaded and in the counter of the tenant, the same fact was admitted. Only difference was that while the landlady claimed that the tenant owned two shops, the tenant admits only one of the shops. The defence of the tenant, however, that the said shop was not vacant at the time of the filing of the eviction petition, is of no significance in view of the specific provision under Section 10 (2) (v) of the Act which provides that the tenant is liable to be evicted, if he has secured an alternative building. Securing an alternative building as contemplated in the decision of this Court in Shamlal Tiwari Vs. Najmunnisa Begum @ Zainabunnisa Begum, Zebunnisa Begum and Sajidunnisa Begum (3rd supra) would no way be affected if such alternative building is let out to a third party. Even in such case it has to be held that the tenant has secured alternative building and only on account of such securing, he was able to let it out to third parties. The findings of both the courts below on this aspect also requires no interference in view of the aforesaid legal position. The revision petition therefore is devoid of merits and is liable to be dismissed. Since the eviction petition is of 1991 and this revision petition is pending before this Court from 2003 onwards, the petitioner-tenant deserves to be granted some time for vacating the schedule premises to enable him to relocate himself. Therefore, the petitioner-tenant is granted three months from today to vacate and handover the vacant possession to the respondents, subject to his filing an undertaking within three weeks from today before the learned Rent Controller, (1) That he shall vacate and handover the vacant possession of the schedule premises to the respondents within three months from today, (2) That he shall pay and deposit the arrears of rent, if any, on or before end of August, 2010 and shall pay every month’s rent on or before 10th day of every succeeding month regularly to the respondents till he vacates the premises and (3) That he shall not create any third party interest or otherwise part with the possession of the schedule premises in favour of any other persons. (4) That in default of any of the aforesaid conditions, the respondents shall be at liberty to execute the decree of eviction against the petitioner-tenant With the above directions, the revision petition is accordingly dismissed, however, no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 30.7.2010 KR [1] 2001 (6) ALD 27 [2] AIR 1992 ANDHRA PRADESH 294 [3] 2009 (1) ALD 530