*THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + CIVIL REVISION PETITION NO.2037 OF 2009 %12-09-2011 # Pradeep Lohade (died) per L.Rs. and others …… Petitioners Vs. $ Smt. Radhika Agarwal …. Respondent !Counsel for the Petitioners: Smt.Manjiri S.Ganu Counsel for the Respondent: Sri R.A.Achuthanand <Gist : >Head Note: ? Cases referred: 1. (1985) 4 Supreme Court Cases 551 2. (1990) 2 Supreme Court Cases 279 3. AIR 1993 Supreme Court 275 4. AIR 1996 Supreme Court 3057 5. (2004) 3 Supreme Court Cases 684 6. 1985 (Supp.) SCC 416 7. 1986(2) RLR (Madras) 8. (1987) 4 Supreme Court Cases 398 9. 1987 STPL(LE) 13494 SC = AIR 1987 SC 617 10. AIR 1996 PATNA 58 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION NO.2037 OF 2009 Date: 12.09.2011 Between: Pradeep Lohade (died) per L.Rs. and others …..Petitioners And Smt. Radhika Agarwal …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION NO.2037 OF 2009 ORDER This revision is filed against the order, dated 23.3.2009, passed in R.A.No.8 of 2007 on the file of the Additional Chief Judge, City Small Causes Court, Hyderabad allowing the appeal and dismissing the Cross Objections SR.No.1519 of 2007. 2. The petitioners herein are the landlords and the respondent herein is the tenant. For the sake of convenience, the parties hereinafter will be referred as landlords and tenant. 3. The brief facts of the case are as follows: The father of the landlords had given the premises on lease to the father of the tenant in 1967 for carrying on the business of petrol bunk. The father of the tenant did petrol bunk business till he died on 9.4.1996. Thereafter, the tenant continued the same business. The landlords have filed R.C.No.233 of 2004 on the file of III Additional Rent Controller, Hyderabad for eviction of the tenant on two grounds, one is cease to occupy the building for a continuous period of four months without reasonable cause under Section 10 (2) (v) of A.P. Buildings (Lease, Rent & Eviction) Control Act (for short, “the Act”) and other ground is committing acts of waste under Section 10 (2) (iii) of the Act. The landlords’ allegation is that the tenant has not been carrying on business in the premises since more than 1½ years prior to the date of filing of the eviction petition. The Indian Oil Corporation (for short, IOC) has cancelled the licence granted to the tenant and taken away its pumps and other equipment long ago and that the premises has been lying vacant without utilization thereof. It is also their case that their father had obtained decree in O.S.No.164 of 1969 on the file of the I Senior Civil Judge, City Civil Court, Hyderabad against the father of the tenant. However, in E.A.No.33 of 1996 in E.P.No.26 of 1976 in O.S.No.164 of 1969, it was held that the said decree is un-executable, null and void and therefore, the landlords have filed R.C.No.233 of 2004 on the file of III Additional Rent Controller, Hyderabad seeking eviction of the tenant. The other allegation of the landlords is that during the pendency of the above referred suit, a compromise was entered into between their father and father of the tenant on 30.10.1972 and as per Clause (4) of the said compromise, on termination of tenancy, whatever buildings, sheds, etc., constructed by the father of the tenant on the premises shall be the property of the plaintiff therein i.e. the father of the landlords and that the father of the tenant shall not be entitled to dismantle or claim any compensation from the father of the landlords. It is alleged that there was a room used for the office purpose, a service station and a small room situated on the north-western corner of the premises, which have been demolished after filing of the eviction petition. The Advocate Commissioner, who visited the premises, had also noted the factum of demolition. It is further alleged that by demolishing those structures, the respondents violated the terms of the compromise dated 30.10.1972 in O.S.No.164 of 1969 and the demolition of portion resulted in impairment of the value and utility of the premises as the premises can no longer be used as a petrol bunk and thus caused damage to the premises as per the provisions of Section 10 (2) (iii) of the Act and therefore, the tenant is liable to be evicted. The said ground of committing acts of waste has been included in the petition by way of amendment as per the orders passed in I.A.No.149 of 2005 dated 11.7.2005. 4. The tenant filed counter and additional counter after amendment of the petition and denied that she has ceased to occupy the premises and that the entire premises is lying vacant without utilisation for the past 22 months. The specific case of the tenant is that due to some disputes that arose between the IOC and her, the IOC interrupted supplying the petroleum products and the said dispute is now pending before Arbitrator. Her specific case is that IOC has not cancelled her licence and that she is keen to carry on the business in the said premises after settlement of the dispute with IOC. It is her further case that at the time of visit of Advocate Commissioner, the employees of the tenant were removing the damaged asbestos sheets of the washing shed with a view to replace them with new ones. In the additional counter, she has taken a stand that earlier compromise entered into between the parties in O.S.No.164 of 1969 on the file of the I Senior Civil Judge, City Civil Court, Hyderabad dated 30.10.1972 is not binding on her and that the landlords cannot claim to have become the owners of the structure on alleged termination of the tenancy. It is her further case that the rents payable in respect of the premises in question at that point of time were Rs.350/- per month and therefore the Civil Court had no jurisdiction to entertain the suit. She further stated that the Life Insurance Corporation of India (for short, LIC of India) had a primary objection for the room in the north-western corner and it lodged a complaint with the Municipal Corporation of Hyderabad (for short, MCH) and the MCH in turn issued a notice to her and MCH authorities threatened to demolish the structure and that in the meantime, due to heavy rains, the tin roof of the room started leaking and whole structure became dilapidated and the roof almost caved in and under those circumstances, the roofing sheets had to be removed and due to the threat of imminent demolition by the MCH authorities, one of the walls of the structure had to be removed. As the structure itself is illegal and liable to be demolished, the tenant contends that the question of diminishing the value and utility of the premises does not arise. 5. During the course of examination, on behalf of the landlords, the second petitioner was examined as P.W.1 and Exs.P.1 to P.3 have been marked. On behalf of the tenant, the husband of the tenant has been examined as R.W.1 and Exs.R.1 to R.26 have been marked. The Advocate Commissioner was examined as C.W.1 and Exs.C.1 to C.30 have been marked. 6. The learned Rent Controller having considered the oral and documentary evidence, came to the conclusion that the tenant has ceased to occupy the premises without any reasonable cause. Challenging the same, the tenant filed an appeal in R.A.No.8 of 2007. However, on the ground of acts of waste, the learned Rent Controller accepted the version of the tenant. Challenging the same, the landlords filed cross-objections. The Appellate Court heard both the matters together and passed common order on 23.3.2009, accepting the contentions of the tenant on both the grounds. Challenging the same, the present revision has been filed by the landlords. It appears that the first petitioner herein died and his legal representatives have been brought on record as petitioners 4 to 6 as per orders dated 26.8.2011 in CRP.MP.No.4525 of 2010. 7. Smt. Manjiri S.Ganu, the learned counsel for the petitioners submitted that the Appellate Court failed to consider whether the tenant is in actual occupation and user to determine whether she ceased to occupy within the meaning of Section 10 (2) (v) of the Act. Her main submission is that the evidence on record proves that the tenant ceased to occupy the premises and thus the landlords have discharged their initial burden. It is her further submission that once the landlords have discharged their initial burden, then the burden shifts to the tenant to prove that there are reasonable grounds for ceasing to occupy the premises. She further submitted that the tenant has taken contradictory pleas and at one stage, the tenant has taken a plea that the licence issued by IOC has been temporarily suspended, but the documents filed by her show that her licence been cancelled. It is further argued that the tenant has failed to file the copy of the order by which her licence has been cancelled and thereby the tenant has failed to show that her licence was not cancelled for her own fault. It is also her submission that since the tenant has not furnished material in her possession to the court, it is, therefore, clear that she is trying to suppress the real nature of the dispute between herself and the IOC. On the point of acts of waste, it is the submission of Smt. Manjiri S.Ganu that admittedly the Rent Controller and Appellate Court have also found that the tenant had demolished the existing structures and in the above circumstances, the findings of the Rent Controller that the said demolition would not impair the value and utility of the premises is erroneous. Referring to the earlier proceedings in O.S.No.1573 of 1992 and the compromise entered into between the father of the landlords and the father of the tenant, her submission is that as per the terms and conditions of the compromise, the structures though raised by the father of the tenant, become the property of the landlords and the father of the tenant shall not be entitled to dismantle the same or claim any compensation from the father of the landlords. Thus, her submission is that the landlords have made out case of ceasing to occupy and acts of waste by the tenant. Smt. Manjiri S.Ganu, in support of her contentions, relied on the Judgments in the cases between Vora Rahimbhai V. Vora Sunderlal[1], Babu Ram Gopal V. Mathra Dass[2], Shiv Lal V. Sat Parkash[3], Gurbachan Singh V. Shivalak Rubber Industries[4] and Ram Dass V. Davinder[5]. 8. Sri R.A.Achuthanand and Sri K.Arun Kumar, learned counsel for the respondent, submitted that there is no fault on the part of the tenant in not running her business and that she has shown sufficient cause for ceasing to occupy the premises. It is also his submission that the tenant cannot run her business without the licence of IOC and since the IOC has cancelled her licence, she has raised a dispute and the same has been pending before the Arbitrator. It is also his submission that the tenant has subsequently paid the licence fee to IOC and also filed her income tax returns showing that she has been running a service centre and paying wages to the employees working under her and these circumstances show that she has not ceased to occupy the premises. It is also his submission that since the matter has been pending with the Arbitrator, the tenant is helpless and she has established that there is a reasonable cause for ceasing to occupy the premises. His further submission is that it is not necessary to give full particulars of the dispute between the tenant and IOC and the details such as on what ground her licence was cancelled. It is his further submission that the Rent Controller cannot examine whether there is sufficient cause for cancelling the by IOC and who is at fault. It is further submitted that no suggestion was given to the tenant that no Arbitral proceedings are pending or that the dispute has been settled. His further submission is that once the licence has been suspended, the IOC would automatically take the dispensing units and therefore it cannot be said that mere removal of dispensing units does not amount the acts of waste and that since the tenant has explained the circumstances under which the premises was removed, the courts below have rightly held that the tenant has not committed any acts of waste. His further submission is that where some additions have been made or some repairs have been carried out, bonafiedly the same cannot be said to be acts of waste. 9. Sri R.A.Achuthanand, in support of his contentions, relied on the Judgments in the cases between State of Rajasthan V. Shamsher Singh[6], R.R.Dinakaran V. S.L.Chinna (Kar.)[7], Raj Kumar Dey V. Tarapada Dey[8], Om Prakash V. Amar Singh[9] and Commissioner of Wealth Tax, Bihar-I, Patna V. Jagdish Prasad Choudhary, Sahebganj[10]. 10. The points that arise for consideration are: (i) Whether the appellate authority has justified in holding that the tenant has shown sufficient cause for ceasing to occupy the premises? (ii) Whether the findings of the appellate authority and Rent Controller are based on the evidence and material on record to show that the tenant has not committed any acts of waste? (iii) Whether such finding is perverse? 11. Section 10 (2) (v) reads as follows: “(v). That the tenant has secured alternative building or ceased to occupy the building for a continuous period of four months without reasonable cause; or …..” Thus, it is clear that a landlord can seek eviction of his tenant wherein a tenant ceases to occupy the building for a continuous period of four months without reasonable cause. As far as ceasing to occupy is concerned, it appears that there is no dispute in this case. Now the tenant’s case is that though she ceases to occupy the premises, but she has shown reasonable cause for the same and therefore, the landlords cannot evict her on the ground ceased to occupy. Now it has to be seen that whether the tenant has shown the reasonable cause and can take shelter on that ground. 12. “Supreme Court on words and phrases”, ‘Reasonable cause’ has been defined as follows in the book. “Reasonable cause means it must be agreeable to reasons having regard to the facts of the particular controversy”. Smt. Manjiri S.Ganu has furnished a copy of Law Lexicon wherein reasonable cause has been explained as follows. “Reasonable cause, as applied to human action, that which would constrain a person of average intelligence and ordinary prudence; probable cause; legal cause”. In case of Commissioner of Wealth Tax, Bihar-I (10 Supra), the Apex Court explained the words reasonable cause as follows. “sufficient cause which prevents a man of ordinary prudence acting under normal circumstance without negligence or inaction or want of bona fide from furnishing return in time”. 13. The learned counsel for tenant has relied on the decision in the Vora Rahimbhai’s case (1 supra). In that case, the tenant had taken a plea that since he has been paying rent, he does not incur the liability of eviction and for this she banks upon the recital in the rent note that “even if we use or do not use or keep the said property closed, the tenants are bound to pay the rent”. The Apex Court, referring to the said rent deed, observed that the stipulation in the rent deed only talks of the liability of the defendant to pay the rent even if he does not use the property and keeps it closed. The Apex Court further observed as follows: “This, however, does not mean that the defendant can keep the premises closed without using it for years together before the suit. This could never have been the intention of the law makers especially in these days of scarcity of accommodation in towns. Even if the stipulation made in the rent note is construed to mean that the defendant-tenant could keep the premises closed without using it for years together without incurring the liability of eviction, as is sought to be contended for the respondent, it would amount to allowing the parties contracting out of law. Further, in the above case, referring to the scheme of the Act (Bombay Rent, Hotel and Lodging House Rates Control Act, 1947), the Apex Court observed as follows: “The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. The control had to be brought in because of the scarcity of accommodation in the cities. If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of any reasonable cause. The intendment of the legislature could be carried out only when the premises is used and not kept vacant for years together.” 14. The Apex Court, in case of Babu Ram Gopal’s (2 supra), referring to E.P. Urban Rent Restriction Act, 1949, which is similar to the provision in the A.P. Act, observed as follows. “The reason of including clause (v) in Section 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of the tenants who do not actually need them. 15. The Ape Court, in case of Ram Dass (5 supra), observed as follows: “Once the landlord has been able to show that the tenancy premises were not being used for the purpose for which they were let out and the tenant has discontinued such activities in the tenancy premises as would have required the tenant’s actually being in the premises, the ground for eviction is made out. The availability of a reasonable cause for ceasing to occupy the premises would obviously be within the knowledge and, at times, within the exclusive knowledge of the tenant. Once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises”. 16. As seen from the evidence, P.W.1 categorically deposed that father of the landlords had leased out the premises to the father of the tenant in the year 1967, though a part of the premises have surrendered and the father of the tenant continued to occupy the same admeasuring 350 sq. yards on a monthly rent of Rs.350/- per month. His specific case is that since 1½ years prior to the filing of the eviction petition, no business is being carried out in the premises and that he came to know that the IOC had terminated the dealership of the tenant and removed the pumps and other equipment. It is not in dispute that the tenant is not carrying out the business in the premises on the date of filing of the petition and the IOC had removed the pumps and other equipment. More over the same is evidence from the Advocate Commissioner’s report. The tenant has not taken any plea in the counter that she has been running service station in the petition schedule premises. 17. On behalf of the tenant, R.W.1 has been examined. R.W.1 is the husband and G.P.A. holder of the tenant. His specific case is that the tenant never ceased to occupy the premises and she has no intention to cease to occupy the premises and due to some disputes, the IOC interrupted supplying petroleum products and now the said dispute is the subject matter of Arbitration proceedings. Documents filed by the tenant i.e. letters from Arbitrator to the tenant and also to the IOC reveal that the tenant has filed her statement of claim on 25.2.2003 and IOC was directed to file its statement and defence on or before 17.3.2003 and that the matter underwent adjournments on 17.3.2003, 10.4.2003, 21.4.2003, 24.6.2003, 26.5.2003, 30.6.2003, 26.7.2003, 8.8.2003 and on 18.8.2003 and that issues were framed. Some of the issues are as follows: (i) Whether the respondent corporation is justified in terminating the dealership under Clause 9 immediately after the sales were restored on 31.8.2002? (ii) Whether the respondent corporation did not give credit to the claimant’s amount the sum of Rs.6,20,000/- lying with it? (iii) Whether the claimant is entitled to restoration of dealership? Thus it is clear that at least from August 2002, the dealership granted to the tenant stands terminated. 18. The other documents reveal that the Arbitrator posted the matter on 25.8.2003 for filing documents and subsequently the matter underwent adjournments on 4.9.2003, 12.9.2003, 8.10.2003, 22.10.2003, 30.10.2003, 17.11.2003, 17.6.2005 and on 9.7.2005. Ex.R.21 reveals that a suit was filed for ejectment of the defendants therein. However, the said suit was dismissed on the ground that the civil court has no jurisdiction. Ex.R.22 reveals that the tenant has paid fee for trade licence on 5.5.2006 through E-seva. Ex.R.23 is a copy of the Saral Form filed by the tenant showing that she had shown income from business in the name and style of M/s.Car Care Centre. Ex.R.26 reveals that the tenant furnished bank guarantee of Rs.25,00,000/- in favour of IOC through Kotak Mahindra Bank Limited, Somajiguda, Hyderabad. 19. According to R.W.1, the dealership was in favour of the tenant upto 2002. It has to be seen that the eviction petition has been filed on 21.7.2005. Thus, admittedly about three years prior to the date of filing of the eviction petition, the dealership of the tenant was cancelled by IOC. Of course, the fact remains that even on the date of filing of the eviction petition, arbitral proceedings were pending before the Arbitrator. It is not in dispute that the order cancelling the dealership of the tenant has not been furnished or even the date on which the dealership has been cancelled is not furnished. Copies of the statement of claim or the statement of defence have not been furnished. Of course, R.W.1 denied that he has intentionally withheld the said record, however, he has admitted that no record is filed before the Court to show the details of the employees engaged by him. Though R.W.1 claims that service station and other activities are going on, admittedly she has not taken such plea in the counter. Of course, in the income tax returns, the tenant claims that she has done business during the assessment year 2006-2007 and admittedly, income tax returns are not filed into the court. Of course, the documents reveals that the tenant has given bank guarantee for huge amount of Rs.25,00,000/- in favour of the IOC, but it has to be seen that no letter has been filed to show that the same has been accepted by the IOC or that the said Corporation has expressed its inclination to renew licence or grant fresh licence in favour of the tenant. In the absence of any specific document showing the date on which the licence was cancelled or the date on which the tenant stopped her business in the premises, the version of the tenant cannot be accepted. It was obligatory on the part of the tenant to furnish the copy of the claim petition, statement of claim and the statement of defence filed before Arbitrator to reveal the exact nature of dispute pending before the Arbitrator. It is also not clear whether the licence of the tenant has been cancelled due to her own fault as contended by the learned counsel for the landlords. Admittedly, the proceedings were pending since more