HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.NO.5657 OF 2005 AND C.R.P.NO.969 OF 2006 AND CR.P.NO.2440 OF 2007 DATED: 18.06.2010 C.R.P.No.5757 of 2005 Between: Nagubandi Venkata Sukumari .. Petitioner And Kaki Visweswara Rao .. Respondent C.R.P.No.969 of 2006 Between: Kaki Visweswara Rao .. Petitioner And Nagubandi Venkata Sukumari .. Respondent C.R.P.No.2440 of 2007 Between: Kaki Visweswara Rao .. Petitioner And Nagubandi Venkata Sukumari .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.NO.5657 OF 2005 AND C.R.P.NO.969 OF 2006 AND CR.P.NO.2440 OF 2007 COMMON ORDER: All these revision petitions arise out of the common order dated 06.06.2005 passed by the Appellate Authority under the Rent Control Act cum Principal Senior Civil Judge, Rajahmundry. C.R.P.No.5657 of 2005 is filed by the tenant against R.C.A.No.16 of 2001, C.R.P.No.969 of 2006 is filed by the tenant against R.C.A.No.14 of 2001 and C.R.P.No.2440 of 2007 is filed by the landlord against R.C.A.No.15 of 2001. 2. Since the revision petitions involve common questions of law and facts between the parties, they are disposed of by the following common order. 3. For the convenience sake the parties will be referred to, as landlord and tenant. 4. I have heard Sri T.S.Anand, learned counsel appearing for the landlord and Sri K.Subrahmanyam, learned counsel appearing for the tenant. 5. The landlord leased out the schedule mentioned building bearing No.9-25-58, Gunduvari Street, Rajahmundry for the purpose of doing business in utensils by the tenant. The lease commenced about 13 or 14 years prior to the date of filing of the rent control cases and it is an oral lease. All these facts are admitted. According to the tenant, the correct rent is only Rs.75/- per month, but as per the landlord it is Rs.500/- per month. The landlord filed R.C.C.No.47 of 1997 seeking eviction of the tenant on the ground of willful default in payment of rent and also for his bona fide requirement for residential purpose under Sections 10(2) (i) and 10(3)(c) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. He also filed R.C.C.No.48 of 1997 seeking fixation of fair rent under Section 4 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The tenant, on the other hand, filed R.C.C.No.51 of 1993 seeking permission to deposit the rent into the Court under Section 8(5) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 on the ground that the landlord has been refusing to receive the agreed rents. 6. The learned Rent Controller accepted the version of the tenant that the landlord has been refusing to receive the rents tendered to him and allowed R.C.C.No.51 of 1993 and permitted the tenant to deposit the rents in to the Court, he dismissed R.C.C.No.47 of 1997 filed by the landlord seeking eviction of the tenant on the ground that there is no willful default in payment of rents and also considering the requirement of the landlord is not bona fide. The learned Rent Controller accepted the version of the tenant that the agreed rent is Rs.75/- and fixed the fair rent at Rs.500/- per month. In the appeals, preferred against the said orders of the Rent Controller in R.C.C.No.48 of 1997 the appellate authority on reappraisal of the entire evidence on record fixed the fair rent at Rs.850/- per month. The orders passed by the appellate authority have been assailed in the present revision petitions. 7. As regards the permission accorded to the tenant to deposit the rents by virtue of the order passed in R.C.C.No.51 of 1993, which is confirmed by the appellate authority in the appeal requires no further consideration. It may be noticed that in the books of account maintained by the tenant in the regular course of his business it is mentioned that the rent of the schedule mentioned premises is Rs.75/- per month. In all the relevant entries of the books of account the signatures of the landlord were obtained by the tenant, which fact is not in dispute by the landlord, except the oral assertion of the landlord that in fact, the rent is Rs.500/- per month and that for municipal tax purpose it is mentioned only as Rs.75/-, no proof has been placed before the Rent Controller by the landlord. As rightly held by the Courts below to substantiate his contention, the landlord ought to have placed some documentary proof such as books of account or income tax returns etc showing that in fact he is receiving Rs.75/- per month only as rent of the premises. Since the burden is on the landlord to establish that the rent, in fact, is Rs.500/- but was mentioned as Rs.75/- per month in the books of account of the tenant for municipal tax purpose and as he failed to discharge the same it has to be necessarily held that the agreed rent is only Rs.75/- per month as contended by the tenant and in my opinion the learned Courts below did not commit any mistake in arriving at the said conclusion. As per Ex.B.1 entry in the books of account of the tenant, the rent for the premises is Rs.75/- per month from 20th March to 20th April. The genuineness of the said entry is not at all disputed by the landlord. Further from Exs.B.2 to B.6 (Ex.B.2 money order receipt for Rs.75/-, Ex.B.3 money order refusal coupon, Ex.B.4 refused registered postal cover, Ex.B.5 money order receipt and Ex.B.6 refused money order coupon) it is made out that when the tenant sent the rent by money order, the landlord refused to receive the same. Further admittedly, for the registered notice issued by the tenant calling upon the landlord to furnish the bank account number so as to enable her to deposit the rent, the landlord did not respond either by furnishing bank account number or by sending suitable reply. Considering all these aspects, more particularly the contents of Ex.B.1-day book maintained by the tenant which clearly indicated that the landlord signed the said books of account by receiving rent of Rs.75/- from 20th March to 20th April for the year 1993-94 which is admitted by the landlord. The Courts below rightly permitted the tenant to deposit the rent in to the court and the orders passed by the Courts below on this point also needs no interference. 8. Since it is proved that the landlord refused to receive the rents and thereafter from the direction issued by the rent controller to deposit the rents into the court, the tenant is depositing the rents it cannot be said that the tenant committed willful default in payment of rent and as such on the said ground she is not liable for eviction. 9. I n PANGULURU RAJESWARI (LANDLADY) v N.V.MADHUSUDHANA GUPTA[1] the learned Single Judge of this Court held in similar circumstances where an amount of Rs.5,000/- deposited by the tenant was admittedly lying with the landlord, “the amount deposited takes care of arrears of rent, if any and there is no willful default”. 10. In the instant case also having regard to the facts and circumstances referred in the foregoing paragraphs, there is no willful default on the part of the tenant in paying rent. Therefore, she is not liable for eviction on the said ground. 11. The other ground on which the eviction was sought is that the landlord required the premises for residential purpose as additional accommodation, which is found to be not bona fide and the tenant is not liable for eviction on the said ground also. Admittedly, the schedule mentioned premises which is required for residential accommodation, in fact was leased out for non residential purpose i.e.for carrying on business by the tenant. The landlord admitted in his evidence that the schedule mentioned premises is 15 x 15 feet, a single room having a window by the side of the lane and if it is used as a bedroom there will not be any privacy. It is also an admitted fact that the entire portion of first floor is in occupation of the landlord and the said portion consists of six rooms and it is being used as residential accommodation of the landlord. The schedule mentioned premises and another non residential accommodation are abutting to each other. 12. It is the contention of the landlord that his married daughter quite oftenly visits his house and he is going to perform the marriage of his son and if his son gets married, residential accommodation now which they are using becomes insufficient and therefore, the premises let out to the tenant is required as additional accommodation for residential purpose. On the application filed by the landlord, the learned Senior Civil Judge- Appellate Authority made a personal inspection to the schedule mentioned premises in the presence of both the parties and counsel and he observed that there are five rooms which are used by the landlord i.e. one is bed room and second room is used as common hall abutting to it. There is a small room used by thelandlord as dining room and abutting to the said dining room there is another small room which is a pooja room. Adjacent to the dining room there is also akitchen and bath room. The learned Senior Civil Judge further observed that on the second floor there is a room under construction with a provision for attached bath room and latrine. On inspection, the learned Senior Civil Judge reached the opinion that the construction which was in progress on the second floor was being made by the landlord for his additional accommodation. 13. As rightly held by the rent controller as well as the appellate authority, except the schedule mentioned room there is no other premises for the tenant to carry on business and the schedule mentioned room is situated in the business locality. Further it is found that both the Courts below basing on the evidence of PW.1 another tenant under the very same landlord held that the room leased out to PW.2 for his business purpose which has bath room and latrine facility is more convenient for the landlord if at all he requires it as additional residential accommodation. A positive finding is recorded by the Courts below that the schedule mentioned premises is not suitable for residential purpose since it is only 15 x 15 ft and has no other facility like bath room and latrine. It was observed by the learned Senior Civil judge in his personal inspection that from the lane situate by the side of the schedule mentioned premises, the customers will be passed through and if it is used for residential purpose, there is lot of disturbance. The learned appellate authority also took in to consideration, the admission made by the landlord that he demanded the tenant for enhancement of rent at Rs.1000/- as per the prevalent rates in the locality, if at all the tenant wants to continue his business in the schedule mentioned premises. Basing on the admission of the landlord the learned appellate authority agreed with the contention urged by the tenant that the eviction petition was filed only for the purpose of getting enhancement of rent and in fact, the requirement of the landlord is not bona fide. The learned Courts below also rightly held that the portion let out for non residential purpose, is separate and distinct from the residential accommodation of the landlord., the landlord is not entitled to seek non residential premises for his residential purpose. Thus, both the Courts below considering the entire evidence on record rightly arrived at the conclusion that the requirement of the landlord is not bona fide and the dismissal of the petition filed by the landlord on the ground of bona fide requirement of the residential accommodation is on justifiable grounds. 14. Coming to the aspect of fair rent the learned appellate authority rightly held that the leaned rent controller did not take into consideration the evidence of PW.3, who is an independent witness, who is doing business in a rented premises in Kakivari lane near to the schedule mentioned premises, that he is paying rent of Rs.850/- to the room similar to the schedule mentioned premises. In proof of the said fact, he also filed Ex.X.1 and X.2- rent receipts issued by the landlord for receiving the rents of August, 1999 and January, 2000. There is also the evidence of PW.5 before the learned Rent Controller which is to the effect that for the rented premises from which he is carrying on business which is situated behind the schedule mentioned premises he paid rent of Rs.1200/- in May, 1997 and Rs.1597/- for the month of September, 1999 and in proof of the said fact, he filed Ex.X.5, X6 and X.8 counter foils. Further the evidence of PW.2 also indicates that his rented shop room is equivalent to the schedule mentioned shop room in all respects. The appellate authority placed much reliance on the evidence of PW.2 on the ground that he is an independent witness and his shop room is situated near to that of the schedule mentioned premises and absolutely no motive was attributed to him for giving false evidence. The learned appellate authority disagreed with the conclusions reached by the learned rent controller in fixing the fair rent at Rs.500/- and basing on the above mentioned evidence rightly fixed the rent at Rs.850/- per month on reappraisal of the evidence on record concurrent finding of the both courts below regarding the enhancement of rent at the rate of 10% once in two years being reasonable and in accordance with law also need no interference. 15. It is true that the jurisdiction of this Court under Section 22 of the Rent Control Act is wider to that of the revisional jurisdiction under Section 115 of the Code of Civil Procedure, but it cannot be equated to the appellate jurisdiction unless the order passed by the appellate authority is perverse, not based on evidence or not in accordance with law, this Court is not supposed to reverse the finding of the appellate authority even though it may appear that a different conclusion is also possible. This Court while exercising revisional jurisdiction under Section 22 of the Act cannot therefore, reappraise the evidence. In view of the settled legal position, this Court is of the considered view that the findings of the courts below are based on evidence, reasonable and also in accordance with law. This Court is not supposed to upset the said findings in exercise of its powers of revisional jurisdiction under Section 22 of the Act. 16. For what all stated herein above, the orders passed by the appellate authority are confirmed and the civil revision petitions are dismissed. There shall be no order as to costs. ___________________ Date: 18.06.2010. R. KANTHA RAO, J Kvrm HON’BLE MR JUSTICE R. KANTHA RAO C.R.P.NO.5657 OF 2005 AND C.R.P.NO.969 OF 2006 AND CR.P.NO.2440 OF 2007 DATED: 18.06.2010 [1] 2002(1)An.W.R 360 (A.P.)