IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1669 of 2008 BETWEEN Kandula Sudarsana Rao. ... PETITIONER AND Sikha Venkateswara Rao. ...RESPONDENT Counsel for the Petitioner: MR. CH. PUSHYAM KIRAN Counsel for the Respondent: MR. P. NARASIMHA RAO The Court made the following: ORDER: Unsuccessful landlord, who had succeeded before the learned Rent Controller – cum- Principal Junior Civil Judge, Rajahmundry in R.C.C.No.34 of 1998 dated 28.02.2005 but had lost before the lower appellate Court in R.C.A.No.21 of 2005 dated 27.12.2007, has filed this revision petition under Section 22 of the Andhra Pradesh Buildings (Lease, Rent & Control) Act, 1960 (for short ‘the Act’). 2. For the sake of convenience the petitioner herein is referred to as ‘landlord’ and the respondent herein is referred to as ‘tenant’. 3. Brief resume of facts is as follows: (a) Landlord is the owner of the petition schedule shop wherein the tenant is carrying on business for more than 15 years as on the date of eviction. The monthly rent payable as on the date of eviction petition is said to be Rs.450/- per month. Admittedly, there are number of other tenants in the same building, who are also paying rent in the same range; but on request of the landlord in September 1997 all of them except the tenant herein enhanced monthly rents payable. It is alleged that negotiations with regard to enhancement of rent were kept pending for a considerable length of time by the tenant and ultimately, the tenant filed injunction suit being O.S.No.284 of 1998 against the landlord on 03.04.1998. It is alleged that by then the tenant had not paid the rent from October 1997 onwards up to January 1998 and thereafter, for February and March 1998 as well. Thus, alleging willful default in payment of rent the landlord filed the eviction case on 24.04.1998. (b) The tenant filed a counter denying the quantum of rent, as pleaded and according to him Rs.300/- was the agreed rent, which was requested to be enhanced by Rs.50/- from January 1998 onwards. The tenant alleged that he paid all the rents but the landlord did not give receipts as per the practice and in March 1998 when the landlord refused to receive the rent, the tenant claimed that he had sent money order dated 30.03.1998, which was not accepted and thereafter, the tenant sent the rents again by money order on 14.05.1998, which was subsequently received by the landlord. The tenant, therefore, denied any default and claimed that at the time of inception of the lease, the landlord had received Rs.5000/- as advance, which is lying in deposit and as such, there is no default much less willful default. (c) The son of the landlord was examined as P.W.1 and Exs.A1 to A3 were marked whereas on behalf of the tenant, he himself was examined as R.W.1 and Exs.B1 to B9 were marked. Out of the documents of the tenant Exs.B1 to B8 are money order coupons commencing from 02.05.1998 up to 20.04.2000 and all of them are much subsequent to the default period. (d) Learned Rent Controller framed three points for determination as follows: 1. Whether the respondent committed willful default in payment of rents from October 1997 till March 1998? 2. Whether the respondent committed willful default in payment of rents for February and March 2000? 3. Whether the petitioner is entitled for eviction of the respondent for demolition of the petition schedule with a view to construct new building in its place? 4. So far as the last of the points is concerned, obviously, there is neither any pleading nor any evidence and as such, on facts, the said question ought not to arise for consideration and is also rightly not pressed in this revision petition by the learned counsel for the landlord. Only the question relating to willful default from October 1997 to March 1998 split into two different points were considered by the learned Rent Controller under points 1 and 2. Learned Rent Controller, on consideration of evidence, found that Ex.B6 is the first attempt of the tenant to pay the rent for the default period that too at the rate of Rs.300/- for February 1998 under money order dated 30.03.1998. So far as October 1997 to December 1997 and January 1998 is concerned, the learned Rent Controller found that there is no evidence of payment. To the extent of the plea of the tenant as to advance of Rs.5,000/- also the learned Rent Controller found that there is no evidence and consequently, the default being evident, it was concluded that the tenant is guilty of willful default for the period 01.10.1997 to January 1998 as well as for the subsequent period of February to March 1998 as on the date of petition. Accordingly, the eviction was ordered on the ground of willful default as well as on the ground of reconstruction under Section 12 of the Act. As mentioned above, since the eviction on the ground of reconstruction is not pressed, it is not necessary to deal with that part. 5. The lower appellate Court has, however, reversed the said judgment of the learned Rent Controller on the ground that the landlord himself has not entered into the box to deny the receipt of rent, as pleaded by the petitioner and that landlord had not given any notice for default prior to filing eviction petition. The lower appellate Court, therefore, felt that the case of the tenant ought to have accepted as genuine, in view of his plea of payment, which was not denied by the landlord and consequently, set aside the order of eviction. 6. Learned counsel for the petitioner has submitted that keeping in view the plea of the tenant that he had paid the rent from October 1997 to January 1998, the lower appellate Court misplaced the burden of proof on the landlord and merely on the ground on non-examination of landlord, the eviction petition was dismissed, which is erroneous. Learned counsel states that P.W.1, who is the son of the landlord, has categorically stated that his father/landlord has undergone a surgery for knee replacement but on account of his old age, his memory is lessened and as such, there is sufficient explanation for his non-examination. Learned counsel also placed reliance upon a decision of this Court in RAJESH GOTHI v. GRANDHI PADMANABHAM[1], particularly para 13 thereof, wherein it was held that burden of proof lay on the tenant to show that he paid the rent for the period in dispute. To the same effect is another decision of this Court in E. VIJAYACHANDRA REDDY v. DR. PRASAD AND OTHERS[2] and learned counsel relies upon para 18 wherein also it was held that it is for the tenant to show payment of rent when denied by the landlord. Learned counsel, therefore, submits that initial burden being on the tenant and he, admittedly, having failed to prove and discharge the said burden, there was no justifiable reason for the lower appellate Court to set aside the eviction order passed by the learned Rent Controller. 7. Learned counsel for the respondent/tenant, on the other hand, supported the judgment of the lower appellate Court by contending that there were disputes between the landlord and the tenants, including the present tenant, since November 1997 itself. He also points out and relies upon the admission of P.W.1 that his father used to collect the rent and was not in the habit of issuing any receipts. Learned counsel, therefore, submits that though the tenant has paid the rents, as per practice the landlord has not issued any receipts and as such, the absence of any document showing payments to rent from October 1997 to January 1998 cannot be blamed on the tenant. He, further, relies upon the bonafide conduct of the tenant in sending the money order under Ex.B6 dated 30.03.1998 followed by subsequent money orders Ex.B1 dated 02.05.1998; Ex.B2 dated 15.05.2008 and submits that subsequently the landlord has been receiving the rents which negatives any plea of willful default on the part of the tenant. Learned counsel also submits that since the legislation is beneficial to the tenant, the order of the lower appellate Court requires no interference under revisional jurisdiction of this Court. 8. I have considered the contentions, as above, and as is evident from the record, the disputes, admittedly, commenced between the landlord and the tenant when the negotiations for enhancement of rent started in November 1997. As per the averments in the eviction petition, the negotiations between the landlord and the tenant continued and the tenant continued to stretch it without any result up to the date when he filed the injunction suit being O.S.No.284 of 1998 on 03.04.1998. During all this period, up to the date of filing of the suit, there is no evidence on the part of the tenant that he paid the rent for the period commencing from 01.10.1997. In the counter filed by the tenant, he states that the rent of January 1998 was received by the landlord on 15.02.1998 without issuing any receipt. The aforesaid plea of the tenant of having paid the rent without obtaining the receipts for the entire period during which there were disputes between the landlord and the tenant, appears highly improbable. It is also opposed to logic that when disputes have arisen between the landlord and the tenant, the tenant would keep on paying every month’s rent without obtaining receipts covering the period of about six months. Further, his subsequent conduct in sending the rent by money order under Ex.B6 dated 30.03.1998 shows that it is rent for February 1998, which is sent at the end of March 1998 and nothing is stated in the money order coupon with regard to rents, allegedly, paid earlier without obtaining receipts. Thereafter, in April there is no payment whereas on 02.05.1998 another money order – Ex.B1 is sent for Rs.300/- followed by Ex.B2 dated 14.05.1998 for Rs.600/- covering two months rent i.e. March and April 1998. The learned Rent Controller, therefore, was right in concluding that in the absence of any proof on the part of the tenant to support his plea of payment of rent from October 1997 to January 1998, the default has to be held as willful. It is also well settled and a reference can be had to the decisions in RAJESH GOTHI’s case (1 Supra) and E. VIJAYACHANDRA REDDY’s case (2 supra), referred to above, to the effect that the burden of proof is entirely on the tenant and it is not for the landlord to depose in the negative when there is no evidence on the part of the tenant. 9. The lower appellate Court, therefore, was not justified in putting the burden on the landlord and non-suiting the landlord on the ground of non- examination of the landlord, who was, apparently, under some disability on account of old age and the surgery. The admission of P.W.1 that receipts were not being issued by the father when he was collecting the rents though pressed by the learned counsel for the tenant, does not advance his case inasmuch as even otherwise the tenant could have produced other evidence such as his account books to show that he regularly paid the rents by showing the respective entries in his accounts. No such evidence is produced by the tenant, obviously, as he has not paid the rents but he has taken a plea of payment only to escape the consequences of default. The default being clearly willful, I have no hesitation to conclude that the order of the lower appellate Court is liable to be set aside by restoring the order of the learned Rent Controller. The civil revision petition, therefore, deserves to be allowed and is accordingly allowed. The tenant is granted time for vacating the premises up to 31.12.2011 subject to: 1. The tenant shall given undertaking before the learned Rent Controller within two (2) weeks from today that he shall voluntarily hand over the vacant schedule premises to the landlord. 2. The tenant shall pay arrears of rent, if any, as well as the rent for the period up to the vacation of the premises on/before 15.12.2011. 3. The tenant shall not sell, alienate or otherwise part with possession over the schedule premises by creating any third party interest during the time granted to him for vacating the premises. 4. In default of any of the conditions 1 to 3, as above, the landlord is free to approach the executing Court for execution of the order of eviction. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September , 2011 DSK [1] 2007 (2) ALD 824 [2] 2008 (2) ALD 553