THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.5575 OF 2006 Dated:12.08.2010 Between: Goluguri Ramakrishna Reddy and others .. Petitioners And Patengay Someswara Rao and others .. Respondents ORDER: The Judgment and decree in R.C.A.No.3 of 2001 on the file of the Senior Civil Judge-cum-Appellate Authority under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, Vizianagaram, dated 12.09.2006 are under challenge in the present revision petition. R.C.C.No.10 of 1995 was filed before the Rent Controller/Principal District Munsiff, Vizianagaram, for eviction of the revision petitioners from the petition schedule portion of the building in Door No.7-3-6, Rangireeju Street, Vizianagaram, by the respondents 1 and 2 herein. It was alleged that the father of the revision petitioners was the original tenant under Devatrasai Padma Bai. Devatrasai Ratnabhai bequeathed the property to the respondents 1 and 2 herein under a Will, dated 28.05.1974, and the father of the revision petitioners continued as a tenant paying rent to the respondents 1 and 2 herein at Rs.300/- per month. The respondents 1 and 2 claimed that the rent was later enhanced to Rs.400/- and subsequently the respondents 1 and 2 herein started demanding the father of the revision petitioners to vacate the property as they required additional accommodation for their sisters and also for personal use and occupation of the second respondent herein. The respondents 1 and 2 herein further alleged that the father of the revision petitioners sent a sum of Rs.1800/- in lumpsum towards rent in June, 1995 and again sent another sum of Rs.300/- in July 1995 towards the rent. The non- payment of rent at Rs.400/- per month in each month resulted in wilful default and as the respondents 1 and 2 herein have no other residential house within the limits of Vizianagaram Municipality, they are entitled to possession in the light of their bona fide personal requirements. The respondents 1 and 2 herein, therefore, desired to vacate the father of the revision petitioners. The claim was resisted contending that while the landlord and tenant relationship is admitted, the rent was only Rs.300/- per month and the revision petitioners or their father never agreed to increase the rent in spite of such demands by the landlords. The alleged personal requirements are invented only for the purpose of seeking eviction and when the first respondent herein was collecting the rents irregularly, the father of the revision petitioners objected to the same on which the first respondent herein himself gave a letter dated 20.10.1995 acknowledging that he had been collecting the rent once in three months, as per his convenience, as he was employed at Srikakulam and was coming to Vizianagarm now and then. Then the father of the revision petitioners sent the rent from January to June 1995 and also July 1995 by separate Money Orders at Rs.300/- per month and hence after death of the father of the revision petitioners, the revision petitioners desired that the request for eviction be negatived. During the course of enquiry before the Rent Controller, PWs.1 and 2 and RWs.1 and 2 were examined and Exs.A1 to A13 and B1 to B36 were marked. The Rent Controller passed an order on 30.12.2000 considering the questions of wilful default, bona fide requirement and the maintainability of the eviction petition. While noting the admitted relationship of landlords and tenants, the Rent Controller opined that in the absence of anything in writing to show that the rent was enhanced to Rs.400/- per month, the agreed rent has to be considered only as Rs.300/- per month and the Rent Controller also accepted that the first respondent herein has written Ex.B.28 letter about receiving the rents once in three months. The Rent Controller found the tenants to have tendered the rents by means of Money Orders for the months of January to July, 1995 and also to have filed I.A.No.617 of 2000 for permission to deposit the rents which was allowed on 19.04.2000. However, it was observed that the tenants did not file any ledger extract of the Court deposits or the challans issued by the bank showing such deposits of rents, which amounted to committal of wilful default by the tenants entitling the landlords to seek the eviction. The Rent Controller, while considering the question of bona fide requirement, did not place any reliance on the evidence of PWs.1 and 2 in view of the inconsistencies between them and due to non- examination of the second petitioner and the first sister of the landlords residing with her family in her husband’s house. The Rent Controller also concluded that the petition for eviction is maintainable in respect of the lease of the portion of the building both for residential and non- residential purposes and in view of the findings on wilful default by the tenants, ordered eviction of the tenants granting them time for two months to vacate. The revision petitioners herein filed R.C.A.No.3 of 2001 against the said order of eviction before the Appellate Authority-cum-Senior Civil Judge, Vizianagaram, and by the judgment dated 13.09.2001, the appellate authority allowed the appeal reversing the finding of the Rent Controller about the wilful default also. The Appellate Authority concluded that there was no finding by the Rent Controller about any default committed by the tenants in payment of rents from January to July 1995 and in view of the failure of the landlords to prove such wilful default prior to the petition and in the light of the deposit of Rs.10,000/- available with the landlords, which could have been adjusted towards the monthly rents, the tenants cannot be considered to have committed wilful default. Against the said judgment, the landlords filed C.R.P.No.5727 of 2001 before this Court, which was decided on 22.07.2005. The learned Judge referred to the failure of the Appellate Authority to consider the other ground relating to bona fide personal requirement. The learned Judge concluded that the said plea cannot be considered to have been abandoned or to be vague and when the entire matter was under consideration of the appellate authority, the appellate authority ought to have considered all the grounds. Hence, the learned Judge remanded the matter to the appellate authority to give opportunity to both parties towards all the grounds and pass appropriate order. After the decision in the revision and the order of remand, the landlords filed a petition before the appellate authority contending that the second respondent herein was married on 11.02.2005 and desired to be separated and to carry on business separately in the schedule building. They also contended that the tenants purchased a non- residential building on 25.02.2000 in the same locality and shifted the entire business to that premises. The landlords, therefore, desired permission to be accorded to adduce additional evidence in that regard. That petition was allowed on which PW.1 was recalled and further examined and PW.3 was examined as per the said orders in I.A.No.1157 of 2005. RW.1 was also recalled and further examined. The appellate authority rendered the judgment now impugned herein on 12.09.2006 noting that the present revision petitioners have been brought on record after the death of original tenant and considered the rival contentions and evidence exhaustively. The appellate authority concluded that the agreed rent was probablised only to be Rs.300/- per month and while considering the request for eviction to be otherwise maintainable in respect of the lease in question, the appellate authority repelled the contention that the bona fi de requirement of the landlords was frequently changed. The appellate authority noted that by 1995 when the petition was filed, the second respondent herein was about to complete his studies and it was mentioned in the petition originally that the premises were required for his occupation soon after his completion of education. The appellate authority noted that it is now in evidence that the second respondent herein, who was examined as PW.3, completed his studies in I.T.I. and was married on 11.02.2005 and is engaged in a petty job as an attender in a private educational institution at Srikakulam. The evidence of RW.2 was also considered by the appellate authority and it was further considered that the claim that the landlords want to set up their own small business in the petition schedule property cannot be suspected. T h e bona fide personal requirement was, therefore, upheld with reference to the subsequent events also. The appellate authority, while considering the question of wilful default, opined that the tenants have no right to pay rent irregularly, even assuming that the first respondent herein was collecting rent irregularly once in three months in 1992 and 1993. The lumpsum payment of rent from January to June 1995 through a Money Order was held to be wilful default and the appellate authority refused to accept the explanation that the failure of the first respondent resulted in such accumulation of rents. The appellate authority also observed that notice of deposit of rents during the pendency of the case also was not given to the landlords and even in that regard, the tenants have to be termed as chronic defaulters. Consequently, the appellate authority dismissed the appeal without costs and directed the revision petitioners to deliver vacant possession within two months. The revision petitioners challenged the said judgment in this revision firstly contending that in the absence of an application under Section 11(4) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, no eviction can be ordered based on the default during the pendency of the proceedings. The revision petitioners relied on a Full Bench decision of this Court in 2001 (6) ALD 27 (FB) and also contended that the tenants were not given any opportunity to prove the deposits which they were regularly making to the credit of the matter and the appellate authority failed to appreciate that the advance of Rs.10,000/- could have been adjusted towards rent. The revision petitioners also contended that the rent was sent through Money Order in lumpsum as the landlords refused to receive the rents and the jurisdiction of the appellate authority to order eviction on the ground of bona fide personal requirement cannot be merely based on the orders in C.R.P.No.5727 of 2001. They further contended that the brother-in-law of the petitioners examined as PW.2 admitted that the portion in occupation of the sister of the landlords is vacated and therefore the portion under the occupation of the revision petitioners is no longer required by the landlords. Hence, the tenants/revision petitioners desired the impugned judgment be reversed. Sri N.Vijay, learned counsel for the revision petitioners, and Sri P.R.Prasad, learned counsel for respondents 1 and 2 are heard. The point for consideration is whether the revision petitioners are liable to be evicted from the schedule premises? POINT:- Insofar as the default presumed by the Rent Controller and the appellate authority against the tenants in respect of rents that became due subsequent to the filing of the eviction petition and which are claimed by the tenants to have been regularly deposited to the credit of the matter is concerned, the Full Bench decision in Vinukonda Venkata ramana v. Mootha Venkateswara Rao and another[1] may come to the aid of the revision petitioners and the Full Bench held that the question whether the default made subsequent to the filing of the eviction petition can be made a ground for ordering eviction has to be answered in the affirmative subject to fulfillment of the conditions laid down in Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The Full Bench observed that it would have been obligatory on the part of the landlord to file an appropriate application under Section 11(4) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 where upon only a direction to the tenant for handing over the possession of the tenanted premises would have been granted to the landlord. In the present case, no application under Section 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was made by the landlords and the technical lacuna entitles the tenants to contend that they could not have been evicted on such a ground. However, so far as the conclusion of the appellate authority about the default committed in payment of rents from January to July, 1995 is concerned, it is not factually in dispute that the rents from January to June 1995 were sent by Money Order in lumpsum at Rs.300/- per month, while the rent for July 1995 was sent by subsequent Money Order. The sending of rent for six months in lumpsum by Money Order was sought to be justified with reference to the earlier conduct of the first respondent herein in coming from Srikakulam to Vizianagaram once in three months and collecting the rents from the tenants in lumpsum, which is also sought to be probablised with reference to a letter said to have been written by the first respondent herein. However, the appellate authority noted that from December 1993 to December 1994 for 13 months, the rent was paid by the tenants and collected by the first respondent herein every month and even if there was irregular collection of rents earlier, the same habit did not continue after December 1993. It was also noted by the appellate authority that after Ex.A13, the tenants did not pay the rents and this conclusion of fact is based on the evidence on record justifying the inference that the tenants could not have taken advantage of any previous practice in payment or collection of rents irregularly, while it is also well settled that the tenant has no right to pay the rents irregularly. This finding of the appellate authority does not appear open to interference on any strong factual ground. While the ground of wilful default thus appears to be available to the landlords to seek eviction of tenants, insofar as the ground of bona fi d e personal requirement is concerned, the conclusion of the appellate authority appears to be on a more stronger wicket. Sri N.Vijay, learned counsel for the revision petitioners, referred to Hazara Bibi and others v. B.Mangaraju and others[2] wherein it is stated about the need to have the pleadings amended to bring any subsequent events on record which will give an opportunity to the other side to file additional pleadings without which evidence of such subsequent events may not be justifiably permissible. The learned counsel referred to the observation of this Court that no Court would deprive the tenants from exercising such rights with reference to such additional pleadings. The learned counsel also relied on Om Prakash Gupta v. Ranbir B.Goyal[3] wherein the power of the Court to take note of and mould relief appropriately in the light of subsequent events was held to be subject to three conditions, firstly, the relief as originally claimed has become inappropriate or impossible to grant, secondly, taking note of such events or changed circumstances would lead to early end of the litigation and would result in complete justice being done and, thirdly, subsequent events are brought to notice of the Court promptly and in accordance with the rules of procedure to ensure that the opposite party is not taken by surprise. The principles are unexceptionable, but there appears no violation of such principles by the absence of any amendment to the pleadings, as even originally it was stated in the eviction petition that the landlords have no other residential building of their own within the limits of Vizianagaram Municipality and the second respondent herein is going to have his residence in the petition schedule building immediately after completion of his education which takes place within two months from then. By mere efflux of time, the second respondent herein had finished his studies and also got married on 11.02.2005 as stated by PWs.1 and 3 and in addition to the personal requirement of the residence of the second respondent therein, PWs.1 and 3, of course, stated that their desire is to carry on business in tailoring material in the premises. Even assuming that the alleged desire to carry on business in tailoring material expressed by PWs.1 and 3 cannot be considered in the absence of any amendment in eviction petition itself, the personal requirement of the second respondent herein to reside in the house with his family cannot be considered to be a subsequent introduction which has to be subjected to any restrictions before acceptance. Even otherwise, these facts should also be noted to have been brought to notice of the Court and the other side by the affidavit filed in support of I.A.No.1175 of 2005 as per the orders on which PW.1 was recalled and PW.3 was examined after remand. The discretion or liberty to decide the manner in which they have to conveniently enjoy the property is always with the landlords and not for the tenants to dictate and in the absence of any strong and convincing reasons to reject the claims on oath by PWs.1 and 3 regarding their personal requirement, it is not for the tenants to formulate as to whether the landlords have any such personal requirement or not and on that ground they have to necessarily fail. On the question of jurisdiction of the appellate authority to consider this plea of bona fide requirement, it was the specific direction of this Court in C.R.P.No.5727 of 2001 that the appellate authority has to give opportunity to both parties on all the grounds and pass appropriate orders. Therefore, in any view, the revision petitioners are liable to be evicted from the schedule premises. Sri N.Vijay, learned counsel for the revision petitioners, submitted that the revision petitioners are carrying on business in fruits in the schedule premises since long and any sudden dislocation would prejudicially effect their livelihood and, therefore, in case, the contentions of the revision petitioners are not accepted, they would require reasonable time to vacate the premises. Sri P.R.Prasad, learned counsel for the landlords/respondents 1 and 2, referred to the material on record to show that the tenants purchased alternative premises to which they shifted their business, but without going into the said question, which is not part of the pleadings of the parties herein, in view of the long standing business in the premises by the tenants since the times of their father, it would be, but, just and reasonable to allow adequate and reasonable time to vacate the premises in the interests of justice to enable them to settle such business in any alternative premises. Keeping in view all the facts and circumstances, granting six months time for the purpose would be just and sufficient. Therefore, the Civil Revision Petition is dismissed without costs. But the revision petitioners are granted time for six months from today to vacate and deliver possession of the premises to the landlords. ___________________ G. BHAVANI PRASAD, J 12.08.2010 KH [1] 2001 (6) ALD 27 (FB) [2] 2001 (3) ALT 103 [3] (2002) 2 Supreme Court Cases 256