THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION Nos.1367 of 2006 & 1597 of 2007 Dated:- _______April, 2011 C.R.P.No.1367 of 2006 Between:- Abdul Razzak …Petitioner AND Mohd.Khaja …Respondents C.R.P.No.1597 of 2007 Between:- Mohd.Khaja …Petitioners AND Abdul Razzak …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION Nos.1367 of 2006 & 1597 of 2007 COMMON ORDER:- Since both these revisions are directed against the same order and arise out of the same dispute, both these revisions are being disposed of by this common order. 2. Both these revisions are directed against the order dated 28.01.2006 passed in R.A.No.97 of 2002 by the Additional Chief Judge, City Small Causes Court, Hyderabad (‘the appellate authority’, for brevity), whereby and whereunder, the order dated 22.01.2002 passed in R.C.No.567 of 1998 by the Principal Rent Controller, Hyderabad (‘the Rent Controller’, for brevity) was partly set aside and partly maintained. 3. C.R.P.No.1367 of 2006 is preferred by the appellant/tenant before the appellate authority, aggrieved by the order of eviction in respect of Mulgi bearing number 12-1- 870/A situated at Asifnagar, Hyderabad, and C.R.P.No.1597 of 2007 is preferred by the respondent/landlord before the appellate authority, aggrieved by the order of dismissal of rent control application for eviction of the tenant in respect of Mulgi bearing municipal number 12-1-870/B situated at Asifnagar, Hyderabad. 4. For the sake of convenience, the parties will be referred to as they were arrayed before the Rent Controller. 5. The petitioner – Mohd. Khaja is the landlord. His specific case is that he is the absolute owner of two Mulgies bearing number 12-1-870/A and 12-1-870/B situated at Asifnagar, Hyderabad, and that he became owner of said two Mulgies by virtue of the registered Gift Deed dated 13.11.1984 executed by his maternal uncle. It is also his case that the respondent – Mohd. Abdul Razzak is the tenant of the said two Mulgies on a monthly rent of Rs.600/- per month and that the tenancy is oral. It is also his case that the respondent failed to pay the rents of these two Mulgies from January, 1985 in spite of repeated demands and thus committed willful default in payment of rent to a tune of Rs.21,000/-. It is also his case that the respondent filed a civil suit against his father – Noor Mohd. in O.S.No.736 and 737 of 1997 on the file of the VII Assistant Judge, City Civil Courts, Hyderabad, by making false and baseless allegations. It is also his case that he is a butcher by profession and he requires the said two Mulgies for starting his own business in those Mulgies and he has no other properties in Hyderabad and Secunderbad except those two Mulgies. 6. The respondent filed counter contending inter alia that he is the tenant of Mulgi bearing number 12-1- 870/A and not the tenant of Mulgi bearing number 12-1- 870/B situated at Asifnagar, Hyderabad, and that his brother – M.A.Rahim obtained Mulgi number 12-1-870/B on lease and that the father of the petitioner – Noor Mohd. who had leased out those two Mulgies to him and his brother on a monthly rent of Rs.300/- per month per each Mulgi separately and that he had deposited an amount of Rs.1,000/- with the father of the petitioner and that he had also spent about Rs.50,000/- for furniture, fixtures etc. It is also his case that when the father of the petitioner refused to receive the rents, he filed R.C.No.474 of 1992 on the file of the III Additional Rent Controller, Hyderabad, and that the said R.C. was allowed on 23.12.1992 and that subsequently, he deposited the rent to the credit of the said case, but however, subsequently, Noor Mohd. – the father of the petitioner executed a declaration and agreed to receive the rent directly from him from July, 1993 onwards and accordingly, he paid the rents to Noor Mohd. upto February, 1997, and that again in February, 1997, Noor Mohd. started harassing him and, therefore, he filed a suit in O.S.No.736 of 1997 on the file of the VII Assistant Judge, City Civil Courts, Hyderabad, and obtained interim injunction on 05.03.1997 in I.A.No.306 of 1997 and even after contesting the matter, the said I.A. was allowed on 15.10.1997. It is also his case that said Noor Mohd. died on 06.02.1988 and that he filed I.A.No.672 of 1998 in O.S.No.736 of 1997 and brought the Legal Representatives of Noor Mohd. on record and that since then, he had been depositing the rents to the credit of R.C.No.474 of 1992 on the file of the II Additional Rent Controller, Hyderabad. His specific case is that at no point of time, Noor Mohd. informed him that the petitioner is the owner and the landlord of the said two Mulgies and that he has not committed any default in payment of rents. It is also his case that neither the petitioner nor his father – Noor Mohd. informed him about the alleged Gift Deed dated 13.11.1984, by virtue of which the petitioner claims to have become the owner of the said two Mulgies. It is also his case that the petitioner is having Mulgies at Begumbazar, Hyderabad, for doing his own business and the claim of the petitioner that the two Mulgies in question are required for his business is not bonafide. The respondent has also referred about the litigation between his brother – M.A.Rahim and Noor Mohd. and further averred that M.A.Rahim filed R.C.No.547 of 1992 on the file of the III Additional District Judge, City Civil Courts, Hyderabad, against Noor Mohd. and that the case of M.A.Rahim is similar to his case. 7. The rent controller formulated the following points for consideration:- 1) Whether the petitioner is entitled for eviction of respondent from the schedule property on the ground of willful default in payment of rents under Section 10(2)(i); 2) Whether there is any relationship of landlord and tenant between the petitioner and the respondent in respect of schedule property of Mulgies bearing No.12-1-870/A and 12-1- 870/B; and 3) Whether the petitioner is entitled for eviction of the respondent on the ground of bonafide personal requirement for starting his own business. 8. On behalf of the petitioner, he himself was examined as P.W.1 and Exs.P.1 to P.4 were marked. On behalf of the respondents, the first respondent himself was examined as R.W.1 and Ex.R.1 to R.171 were marked. 9. The learned Rent Controller, on appreciation of oral and documentary evidence on record, came to the conclusion that the respondent admitted that he paid Rs.600/- as rent to Noor Mohd. and, therefore, these circumstances establish that he is the tenant for both the Mulgies and that after the death his father, the respondent has not paid the rents to him and that the respondent has committed willful default in payment of rents and that denial of his title, by the respondent, is not bonafide and that M.A.Rahim did not file any application to get himself impleaded as party to the proceedings and that Exs.R.48 to R.171 are created and brought-up documents for the purpose of this litigation and that the tenant is liable to be evicted. Holding so, the learned Rent Controller allowed the petition filed by the petitioner and directed the respondent to vacate and handover the vacant possession of the petition schedule premises to the petitioner within one month from the date of that order. 10. Aggrieved by the same, the respondent preferred an appeal before the appellate authority and the appellate authority, having re-appreciated the oral and documentary evidence on record and the earlier round of litigation between M.A.Rahim and Noor Mohd. and holding that M.A.Rahim is a tenant of the Mulgi bearing municipal number 12-1-870/B and, therefore, the petitioner is not entitled to seek eviction of M.A.Rahim without impleading him as a party to the proceedings, set aside the order of eviction of tenant in respect of Mulgi bearing No.12-1-870/B. However, the appellate authority, holding that the respondent committed default in payment of rents and that Exs.R.48 to R.96 and R.108 to R.156 seems to have been invented for the purpose of deciding the claim of the respondent and, therefore, the eviction order passed by the Rent Controller in respect of house bearing municipal number 12-1-870/A is proper, maintained the order of the learned Rent Controller in respect of Mulgi bearing No.12-1- 870/A and directed the respondent to vacate and deliver vacant possession within two months from the date of that order. Thus, the appellate authority allowed the appeal in part and dismissed the appeal in part. 11. The main contention of Sri Basith Ali Yavar, learned counsel for the petitioner is that the respondent, in his evidence, had admitted that he paid Rs.600/- towards rent to Noor Mohd. which is sufficient to prove that he is the original tenant of both the Mulgies and that the respondent had sub-leased the Mulgies to M.A.Rahim – his brother and there is no need to implead the sub-lessee as party to the proceedings and that the sub-lessee is bound by the eviction order passed against the original lessee. 12. Per contra, Sri A. Ravi Shankar, learned counsel for the respondent, submitted that he has adduced number of receipts issued by Noor Mohd. and there is clinching documentary evidence to prove the aspect of payment of rent and, therefore, the respondent has not committed any default in payment of rents. It is also his submission that the appellate authority, having examined the entire oral and documentary evidence on record, came to the conclusion that the tenant leased out only one premises. i.e., Mulgi number 12-1-870/A and has further rightly held that the brother of the respondent is the tenant of other Mulgi, i.e., Mulgi number 12-1-870/B and such finding of the appellate authority is based on proper appreciation of evidence and that there is no need for this Court to take a contra view. It is also his submission that a single petition by the landlord for the eviction of two different tenants in respect of two separate premises is not maintainable. 13. Having considered the above rival contentions, the points that that arise for consideration in both these revisions are (1) Whether the respondent is the tenant of both the premises; and (2) Whether the respondent has committed willful default in payment of rents. POINT No.1 14. As observed by the appellate authority and as seen from the evidence let in, admittedly, M.A.Rahim was examined as R.W.2. His evidence shows that he filed R.C.No.547 of 1992 on the file of the III Additional Rent Controller, Hyderabad, against Noor Mohd. and subsequently, he had filed O.S.No.737 of 1997 on the file of the VII Assistant Judge, City Civil Court, Hyderabad. Thus, the earlier litigation between Noor Mohd. and M.A.Rahim shows that M.A.Rahim claimed that he is the tenant in respect of Mulgi bearing number 12-1-870/B since 1992 onwards. The petitioner has not whispered anything about the earlier round of litigation between his father – Noor Mohd. and M.A.Rahim in his pleadings. Moreover, in his evidence, he pleaded ignorance about the filing of separate Rent Control cases by the respondent and M.A.Rahim. Thus, the finding of the appellate authority that both the Mulgies were separately obtained by the respondent and M.A.Rahim under different leases on a monthly rent of Rs.300/- each appears to be correct. Of course, the respondent had deposed that the father of the petitioner collected Rs.600/- towards rent from him, but immediately, he had added that Rs.300/- relates to one Mulgi and Rs.300/- relates to another Mulgi belonging to his brother – M.A.Rahim. Therefore, the earlier sentence of the respondent cannot be treated as admission made by him. Therefore, the findings of the appellate authority on this aspect appears to be justified and based on proper appreciation of evidence and, therefore, needs no interference by this Court. POINT No.2 15. As far as default committed by the respondent in payment of rent is concerned, both the Courts below have given concurrent findings that the rental receipts said to have been executed by Noor Mohd. are not acceptable. It was found that all the receipts, which are in Urdu language and with English translation, show that they are on white paper of same size, written with same ink and all of them were filed before the Court on 06.11.2001 during the pendency of cases and those receipts said to have been issued by Noor Mohd – the father of the petitioner, who is no more, appears to have been created and brought-up for the purpose of this case after the death of Noor Mohammad. The appellate authority also observed as follows:- “…..It is clear that Exs.R.48 to R.96 and R.108 to R.156 are invented for the purpose of deciding the claim of the tenant.” 16. Thus, both the Courts have categorically held that the respondent has committed default in payment of rents from January, 1995 onwards. There is yet another circumstance, i.e., admittedly, the father of the petitioner – Noor Mohd. filed written statement in O.S.No.736 of 1997 on 16.07.1997, in which, he had categorically deposed that he is not the owner of the petition schedule Mulgies and that the petitioner is the owner of the said Mulgies by virtue of a Gift Deed dated 13.11.1994 executed in his favour by Mohammad Ramzani. Moreover, Noor Mohd. died on 06.02.1988. There is no dispute among the legal heirs of said Noor Mohd. There appears to be no rival claims to the claim of the petitioner. Merely bringing the Legal Representatives of Noor Mohd., admittedly, who did not claim any right, will not serve the purpose. Depositing rents to the credit of a dead person amounts to committing willful default, when particularly, the dead person himself declared in previously civil proceedings that the petitioner is the owner of the Mulgi, depositing of rents to the credit of such suit cannot be said to be bonafide. The claim of the respondent that even after the death of Noor Mohd., he continued to deposit the rents to the credit of R.C.No.474 of 1992 on the file of the II Additional Rent Controller, Hyderabad, clearly shows that he had no paid any rents to the petitioner as alleged by the petitioner. Thus, the findings of the appellate authority on the aspect of willful default of payment of rents by the respondent are based on proper appreciation of evidence and such findings cannot be disturbed. It is clear that both the revisions are devoid of merit and are liable to be dismissed. 17. In the result, both the revisions are dismissed without any order as to costs. However, in the circumstances, the tenant is granted eight (08) weeks time from today to vacate and hand over the vacant possession of Mulgi bearing number 12-1-870/A situated at Asifnagar, Hyderabad, to the petitioner/landlord, subject to the condition of paying the arrears of rent. ____________________________ JUSTICE B.CHANDRA KUMAR 19th April, 2011 Bvv