IN THE COURT OF THE PRINCIPAL RENT CONTROLLER: CITY SMALL
CAUSES COURT : HYDERABAD.
Present: Sri J.Hanumantha Rao,
Principal Rent Controller,
City Small Causes Court, Hyderabad.
Wednesday, the 6th day of March, 2019.
R.C.No. 178 of 2006 and R.C.No.179 of 2006
R.C.No.178 of 2006
Between:
1.Noor Jehan Begum W/o. Khaja Moinuddin, Muslim, aged about 65 years, Occ: Household, rep.by her General Power of Attorney Holder Khaja Arshad Moin, s/o Khaja Moinuddin, Muslim, aged about 44 years, Occ: Business, R/o H.No.207264, Inside Fateh Darwaza, Hyderabad.
2. Khaja Arshad Moin, S/o. Khaja Moinuddin, Muslim, aged about 44 years, Occ:Business, R/o H.No. 207264, Inside Fateh Darwaza, Hyderabad ( died per LRs)
3. Smt.Yazdani Banu W/o.Late Khaja Arshad Moin, aged about 40 years, Occ: Household, R/o 207264, Inside Fateh Darwaza, Hyderabad 4.Smt.Sheeba Arshad W/o. Sohail Ahmed D/o Late Khaja Arshad Moin, aged about 26 years, Occ: Household, R/o 83734/21, Bowenpally, Ghouri Nagar,Secunderabad 5.Smt.Sheemrina Arhad W/o. Iftekar Shareef D/o Late Khaja Ashad Moin, aged about 22 years, Occ: Household, R/o 19229/A/28, Behind Shama Talkies, Jahanuma, Hyderabad.
6. Smt.Khaja Ahwar Arshad S/o. late Khaja Arshad Moin, Muslim, aged about 20 years, R/o 207264, Inside Fateh Darwaza, Hyderabad.
7. Khaja Junaid Arshad S/o. late Khaja Arshad Moin, Muslim, aged about 18 years, R/o 207264, Inside Fateh Darwaza, Hyderabad.
.. Petitioners.
A n d 2
1. T.V.Ratna Rao S/o. T.S.Krishna Murthy, Hindu, aged about 53 years, Occ: Business, mulgi No.611063/1/4, Saifabad, Hyderabad.
2. T.S.Rama Krishna Rao S/o. T.S.Krishna Murthy, Hindu, aged about 45 years, Occ: Business, mulgi No.611063/1/3, Saifabad, Hyderabad.
... Respondents
R.C.No. 179 of 2006
Between:
1.Noor Jehan Begum W/o. Khaja Moinuddin, Muslim, aged about 65 years, Occ: Household, rep.by her General Power of Attorney Holder Khaja Arshad Moin, S/o Khaja Moinuddin, Muslim, aged about 44 years, Occ: Business, R/o H.No.207264, Inside Fateh Darwaza, Hyderabad.
2. Khaja Arshad Moin, S/o. Khaja Moinuddin, Muslim, aged about 44 years, Occ:Business, R/o H.No. 207264, Inside Fateh Darwaza, Hyderabad ( died per LRs)
3. Smt.Yazdani Banu W/o. Late Khaja Arshad Moin, aged about 40 years, Occ: Household, R/o.207264, Inside Fateh Darwaza, Hyderabad.
4.Smt.Sheeba Arshad W/o. Sohail Ahmed D/o Late Khaja Arshad Moin, aged about 26 years, Occ: Household, R/o. 83734/21, Bowenpally, Ghouri Nagar,Secunderabad 5.Smt.Sheemrina Arshad W/o. Iftekar Shareef D/o. Late Khaja Arshad Moin, aged about 22 years, Occ: Household, R/o 19229/A/28, Behind Shama Talkies, Jahanuma, Hyderabad.
6. Smt.Khaja Ahwar Arshad S/o. late Khaja Arshad Moin, Muslim, aged about 20 years, R/o 207264, Inside Fateh Darwaza, Hyderabad.
7.Khaja Junaid Arshad S/o. late Khaja Arshad Moin, Muslim, aged about 18 years, R/o 207264, Inside Fateh Darwaza, Hyderabad.
.. Petitioners.
A n d
1. T.V.Ratna Rao S/o. T.S.Krishna Murthy, Hindu, aged about 53 years, Occ: Business, mulgi No.611063/1/4, Saifabad, Hyderabad.
2. T.S.Rama Krishna Rao S/o. T.S.Krishna Murthy, Hindu, aged about 45 years, Occ: Business, mulgi No.611063/1/4, Saifabad, Hyderabad.
... Respondents
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These petitions are coming on this day for hearing on 28.2.2019
before me in the presence of Sri R.A.Achutanand, Advocate for the
petitioners and of Sri M.Papa Reddy, Advocate for the respondents and the matter having stood over for consideration till this day, the court passed the following;
C O M M O N O R D E R
RC.No. 178 of 2006
This is a petition filed by the petitioners under Section 10(2) (i), 10(2)(ii)
(v), 10(3)(a)(iii)(b) and 10(C) of the A.P. Buildings (Lease, Rent & Eviction)
Control Act, 1960, praying the court to evict the respondents from the petition schedule premises bearing No. 611063/1/3, Saifabad, Hyderabad.
RC.No. 179 of 2006
This is a petition filed by the petitioners under Section 10(2) (i), 10(2)(ii)
(v), 10(3)(a)(iii)(b) and 10(C) of the A.P. Buildings (Lease, Rent & Eviction)
Control Act, 1960, praying the court to evict the respondents from the petition schedule premises bearing No. 611063/4, Saifabad, Hyderabad.
2. The petitioners and the respondents are one and the same in both the petitions i.e., RC.No.178 of 2006 and RC.No.179 of 2006.
3.The learned counsel for the petitioners filed a petition in IA No.276 of 2007 praying the court to club both the RC.No.178 of 2006 and RC.No.179 of 2006 and to record common evidence in RC.No.178 of 2006; the said IA
No.276 of 2007 was allowed on 15.7.2009. Accordingly this court recorded common evidence in both the RCs and are being disposed of by this Common
Order.
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4.The pleadings in RC 178 of 2006 are that the petitioner is the absolute owner of the double storied building and open land behind the mulgies bearing Municipal No. 611063/1/2, 611063/1/3, 611063/1/4 and 611063/1/5, on the ground floor and premises bearing Municipal
No.611063/1/1, on the first floor, Saifabad, Hyderabad, having purchased under five registered sale deeds, dated 05.05.1990 and that the respondents 1 and 2 along with their father are the tenants in the petition schedule premises bearing Municipal No. 611063/1/3 and 611063/4 and the said shops were leased out by the petitioner’s father to the respondents 1 and 2 and their father under a rental agreement dated 8th May, 1981 along with the fixtures and fittings and the said rental agreement has been lost and that after the purchase of the property the tenancy in respect of two shops have been attorned by the petitioners vendor in favour of the petitioners in the month of May, 1990 under letter of attornment wherein it was informed to the respondents about the change of ownership. The said shops have been let out specifically for the purpose of carrying business of medical hall and general stores only.
5.The further case of the petitioners is that the monthly rent of the premises is inclusive of fixtures and fittings at the rate of Rs.225/ per month exclusive of electricity consumption charges. As per the terms and conditions of the rental agreement, the monthly rent is payable on or before 5th of every calendar month and the respondents shall obtain the receipt. The electricity charges are to be borne out by the respondents. It was also agreed that the respondents shall not commit any default in payment of monthly rent.
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Respondents also have agreed to pay the municipal property tax and that earlier the petitioner has filed two eviction petitions in RC No. 258/92, and
RC.No. 261/92 against the respondents 1 and 2 and their father and that the
said eviction petitions were dismissed for default on 5.11.1996 and that the restoration applications filed were also dismissed and that an appeal was also filed against the above said order was also dismissed on 22.9.1999.
6.The further case of the petitioners is that the respondents have committed willful default in payment of municipal property tax and that the respondents are due a sum of Rs.11,495/ up to 31.3.2006 as such the respondents have committed willful default in payment of property tax and that the respondents have also withheld the rents for the month of November and December, 2005 and January to march, 2006 thereby, the respondents have committed willful default for non payment of property tax and also rents intentionally and deliberately and they are liable to be evicted on the ground of willful default.
7.The further case of the petitioner is that the petition schedule premises and the mulgi bearing No. 611063/4 were leased out for the purpose of carrying on medical and general stores and that the same is mentioned in clause 3 of rental agreement and that the respondents 1 and 2 have violated the terms and conditions of the agreement have not been using the premises for which it was leased by starting Xerox business. Hence, the respondents 6 are liable to be evicted from the petition schedule premises on the ground of change of user.
8The further case of the petitioners is that the petitioner No.1 is the owner of the shop bearing No.611063/1/2, shop bearing M.No. .61 1063/1/3 and 1063/1/4. The shop bearing M.No.611063/1/5 is in occupation of the Nice Tiffin Centre, in occupation of Gulam Rabbani and
Mohd.Jalaluddin and the first floor premises was let out to M/s Raghu Press.
The rear side premises is open land, and a part of it is in occupation of petitioner’s son’s brotherinlaw where a motor garage is run on permissive possession and that the petitioner’s younger son by name Khaja Shahed Moin expired in the month of January, 2006 who left behind his wife, six daughters and a son and that the total family is depending on the petitioner and his elder son. The petitioner’s son by name Khaja Arshad Moin is running a hotel business of Tea and snacks at RTC X Roads on a monthly rent of Rs.7,935/ and that the landlord of the hotel premises demanded the petitioner’s son to vacate the premises and that the petitioner’s son intends to open a restaurant in the entire property and that the petition schedule premises is suitable and convenient for the hotel business which is located in a commercial locality where there are number of offices, shops, commercial establishments and that petitioner is not owner of any other non residential property apart from petition schedule property in twin cities of Hyderabad and Secunderabad as such the requirement of the petition schedule premises is bonafide, genuine and pressing.
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9.The further case of the petitioner is that originally the petitioner filed two eviction petitions against the respondents on the ground of wilful default, personal requirement and after filing of the petitions, the petitioner came to know that respondent has secured alternative accommodation and wherein he is carrying on business in xerox under the name and style of “Dhanalaxmi
Xerox centre”, apart from it, the respondent has entered into construction activities and he is a builder of “M/s. Dhanalaxmi constructions” and that the respondents themselves have developed and constructed their own non residential properties and that they have secured alternative accommodation, as such the respondents are liable to be evicted from the petition schedule premises on this ground, hence, this petition.
10. The respondents filed counter denying the allegations made by the petitioner and contended that the petitioner suppressed the true facts and that she filed the present petition on false and baseless allegations. The contention of the respondent is that as per the cause title, the petitioner is represented by her so called Power of Attorney. Copy of alleged General Power of Attorney is not furnished to the respondents. The petitioner is hereby called upon to prove to the satisfaction of this court that Khaja Arshad Moin is duly constituted Power of Attorney and is entitled to represent the petitioner No.1 and continue the proceedings of present case.
11. The further contention of the respondents is that the petitioner is the owner of the petition schedule premises and that the respondents are tenants in respect of the petition schedule premises and that the 8 respondents’ father late Sri T.S.Krishna Murthy and second respondent
T.S.Rama Krishna Rao, joined as partners in the business and together have executed Rental agreement in favour of the predecessors in title of the petitioner herein on 8.5.1981 and that attornment of tenancies in favour of petitioner No.1 is not disputed. The further contention of the respondent is that the petition schedule premises obtained on lease along with the fixtures and fittings on a monthly rent of Rs.225/ and that the respondents are regularly paying the rents and that the respondents are not liable to pay the municipal property tax. The respondents were forced to pay the property tax in respect of the petition schedule premises and adjoining mulgi vide receipt
No.92 of Book No.4043 dated 15.12.2005 amounting to Rs.11,495/ vide cheque No. 181050 dated 15.12.2005 drawn on Andhra Bank, Khairtabad,
Hyderabad and that there are no arrears of property tax as on the date of the
RC petition. The respondents have informed about the payment of tax to the
M.C.H. authorities and asked to refund the excess amount paid to MCH authorities after deducting Rs.900/ towards the rent for the month of
November and December 2005 in respect of petition schedule premises and adjoining mulgi vide letter dated 29.12.2005 and that the petitioner failed to give any reply nor refunded the excess amount and that the respondents have not committed any willful default in payment of municipal property tax in respect of the petition schedule premises and adjoining mulgi. The respondents have sent rents by way of money orders in respect of the petition schedule premises as the petitioner refused to receive the rents and that to avoid further litigation the respondents paid entire arrears as alleged by the 9 petitioner on 5.6.2006 amounting to Rs.1800/ rents for the months of
November, 2005 to June, 2006 @ Rs.225/ per month.
12. The further contention of the respondents is that the respondents have been carrying on business of Xerox and medical under the name and style of
Dhanalaxmi Xerox Centre and Medicals since the beginning in both the mulgies. The respondents have not violated any terms of the written agreement. The respondents are entitled to carry on lawful business and they are doing the said business after obtaining required license and no such ground was taken in the earlier proceedings and that the petitioner is not entitled to claim eviction on the ground of change of nature of business.
13. The further contention of the respondents is that, the requirement as pleaded by the petitioner is not bonafide, genuine and pressing and that the petitioner is the owner of several non residential properties in the twin cities and that the son of the petitioner by name Khaja Arshad Moin is a builder by profession and carrying on business activities under the name and style of
M.N. Constructions and that he has constructed a complex consisting of five shops in ground floor and two upper floors opposite to Madina Hotel,
Hyderabad and he is also having link travel agency and apart from this he is also carrying on hotel business at RTC Cross roads. Hence, the requirement of the petitioner is not bonafide and genuine and that the petitioner filed the present eviction petition so as to get evict the respondents illegally. Hence, the respondents prayed for dismissal of the petition with costs.
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14.During the pendency of the petition, the petitioner filed a petition in
I.A.No 181 of 2006 in RC.No.178 of 2006 seeking amendment of the petition and to add para 12A and the said petition was allowed on 26.11.2008.
15. Thereafter, the respondents 1 and 2 filed additional counter and submitted that the respondents have not secured any alternative accommodation and that Dhanalaxmi Construction is a partnership firm of respondents family members and that the said firm constructed a residential complex known as Dhanalaxmi residency for the benefit of respondents family members and that it is not commercial property and that Ratna
Complex is a partnership firm consisting of family members of respondents and it is also purely a residential one and as such the question of respondents secured alternative accommodation does not arise at all and pray to dismiss the petition.
16.The petitioner filed a petition in I.A.No.398 of 2009 in RC 178 of 2006 under Order 1 Rule 10 of CPC praying this court to implead Khaja Arshad
Moin as petitioner No.2 and also for consequential amendments and the said petition was allowed on 16.12.2009.
17.Thereafter the respondents have filed additional counter dated 26.3.2010 and submitted that the petitioner no.2 in the capacity as General
Power of Attorney Holder No.1, has specifically pleaded that the petitioner
No.1 i.e. his mother is mentally unstable and her health is not good and sound position and in such circumstances, the execution of Gift settlement 11 deed in favour of petitioner No.2 is under suspicion and that when the document is executed by an unsound person, such gift deed is not a valid document in the eye of law and pray to dismiss the petition.
18. Pending petition, petitioner No.2 died on 11.10.2010. The Legal representatives of the deceased petitioner No.2 filed a petition in I.A.No. 496 of 2010 in RC.No.178 of 2006 to bring them, as petitioners 3 to 7 and the said petition was allowed on 30.11.2010.
19.Thereafter the respondents 1 and 2 filed additional counter and submitted that the petitioners are seeking eviction on the baseless grounds with malafide intention and admitted that the petitioner No.2 is expired on 11.10.2010. It is denied that the petitioners 3 to 7 are only legal heirs of petitioner No.2. The petitioner No.1 had alone filed the case. Petitioner No.2 was impleaded claiming under a gift deed and hence, the petitioner No.1 can prosecute the matter and sought for dismissal of petition.
20. The petitioners filed I.A.No.26 of 2011 in RC 178 OF 2006 under Order 6 Rule 17 of CPC for amending para 5 of the eviction petition by adding para 5A and the same was allowed on 12.12.2011.
21.Thereafter, the respondents have filed additional counter and submitted that the bonafide personal requirement of petitioners 3 to 7 is baseless and with a malafide intention and that the proposed intention to 12 start business by the legal representatives of petitioner No.2 is false and that after the death of petitioner No.2 there is no bonafide requirement.
22.The pleadings in RC 179 of 2006 are that the petitioner is the absolute owner of the double storied building and open land behind the mulgies bearing Municipal No. 611063/1/2, 611063/1/3, 611063/1/4 and 611063/1/5, on the ground floor and premises bearing Municipal
No.611063/1/1, on the first floor, Saifabad, Hyderabad, having purchased under five registered sale deeds, dated 05.05.1990 and that the respondents 1 and 2 along with their father are the tenants of the petition schedule premises with shop bearing Municipal No. 611063/1/3 and 611063/4 and the said shops were leased out by the petitioner’s father to the respondents 1 and 2 and their father under a rental agreement dated 8th May, 1981 along with the fixtures and fittings and the said rental agreement has been lost and that after the purchase of the property the tenancy in respect of two shops have been attorned by the petitioners vendor in favour of the petitioner in the month of May, 1990 under a letter of attornment wherein it was informed to the respondents about the change of ownership. The said shops have been let out specifically for the purpose of carrying business of medical hall and general stores only.
23.The further case of the petitioners is that the monthly rent of the premises is inclusive of fixtures and fittings at the rate of Rs.225/ per month exclusive of electricity consumption charges. As per the terms and conditions of the rental agreement the monthly rent is payable on or before 5th of every 13 calendar month and the respondents shall obtain the receipt. The electricity charges are to be borne out by the respondents. It was also agreed that the respondents shall not commit any default in payment of monthly rent.
Respondents also have agreed to pay the municipal property tax as per the demand made by the Municipal authorities and that earlier the petitioner has instituted two eviction petitions bearing RC. No. 258/92, and RC.No. 261/92 against the respondents 1 and 2 and their father and that the said eviction petitions were dismissed for default on 5.11.1996 and that the restoration applications were filed were also dismissed and that an appeal was also filed against the above said order and the same was dismissed on 22.9.1999.
24.The further contention of the petitioners is that the respondents have committed willful default in payment of municipal property tax and that the respondents are due a sum of Rs.11,495/ up to 31.3.2006 and that the respondents have committed willful default in payment of property taxes and that the respondents have withheld the rents for the month of November and
December, 2005 and January to March, 2006 and that the respondents have committed willful default for non payment of property tax and also rents intentionally and deliberately as such the respondents have committed willful default in respect of petition schedule premises and that they are liable to be evicted on the ground of willful default.
25.The further case of the petitioner is that the petition schedule premises and the mulgi bearing No. 611063/4 were leased out for the purpose of carrying on medical and general stores and that the same is mentioned in 14 clause 3 of rental agreement and that the respondents 1 and 2 have violated the terms and conditions of the agreement have not been using the premises for which it was leased out by starting Xerox business. Hence, the respondents are liable to be evicted from the petition schedule premises.
26.The further case of the petitioners is that the petitioner no1 is the owner of the shop bearing No.611063/1/2, shop bearing M.No. .61 1063/1/3 and 1063/1/4. The shop bearing M.No.611063/1/5 is in occupation of the Nice Tiffin Centre, in occupation of Gulam Rabbani and
Mohd.Jalaluddin and the first floor premises was let out to M/s Raghu Press.
The rear side premises is open land and a part of it is in occupation of petitioner’s son’s brotherinlaw where a motor garage is run on permissive possession and that the petitioner’s younger son by name Khaja Shahed Moin expired in the month of January, 2006 and he left behind his wife, six daughters and a son and that the total family is depending on the petitioner and his elder son. The petitioner’s son by name Khaja Arshad Moin is running a hotel business of Tea and snacks at RTC X Roads on a monthly rent of Rs.7,935/ and that the landlord of the hotel premises demanded the petitioner’s son to vacate the premises and that the petitioner’s son intends to open a restaurant in the entire property and that the petition schedule premises is suitable and convenient for the hotel business which is in a commercial locality where there are number of offices, shops, commercial establishments and that petitioners are not owner of any other non residential property apart from petition schedule property in twin cities of 15
Hyderabad and Secunderabad as such the requirement of the petition schedule premises is bonafide, genuine and pressing. Hence, this petition.
27. The respondents filed counter denying the allegations made by the petitioner and contended that the petitioner suppressed the true facts and that she filed the present petition with false allegations. The contention of the respondents is that as per the cause title the petitioner is represented by her so called Power of Attorney. Copy of alleged General Power of Attorney is not furnished to the respondents. The petitioner is hereby called upon to prove to the satisfaction of this court that Khaja Arshad Moin is duly constituted
Power of Attorney and is entitled to represent the petitioner and continue the proceedings of the present case.
28. The further contention of the respondents is that the petitioner is the owner of the petition schedule premises and that the respondents are tenants in respect of the petition schedule premises and that the respondents’ father late Sri T.S.Krishna Murthy and second respondent
T.S.Rama Krishna Rao, joined as partners in the said business and together have executed Rental agreement in favour of the predecessors in title of the petitioner herein on 8.5.1981 and that attornment of tenancies in favour of petitioner is not disputed. The further contention of the respondent is that the petition schedule premises obtained on lease along with the fixtures and fittings on a monthly rent of Rs.225/ and that the respondents are regularly paying the rents and that the respondents are not liable to pay the municipal property tax and that as the petitioners failed to pay the municipal property 16 tax in respect of the petition schedule premises. The respondents were forced to pay the property tax in respect of the petition schedule premises and adjoining mulgi vide receipt No.92 of Book No.4043 dated 15.12.2005 amounting to Rs.11,495/ vide cheque No. 181050 dated 15.12.2005 drawn on Andhra Bank, Khairtabad, Hyderabad and that there are no arrears of property tax as on the date of the petition. The respondents have informed about the payment of tax and asked to refund the excess amount paid to
MCH authorities after deducting Rs.900/ towards the rent for the month of
November and December 2005 in respect of petition schedule premises and adjoining mulgi vide letter dated 29.12.2005 and that the petitioner failed to give any reply nor refunded the excess amount and that the respondents have not committed any willful default in payment of municipal property tax in respect of the petition schedule premises and adjoining mulgi. The respondents have sent rents by way of money orders in respect of the petition schedule premises as the petitioner refused to receive the rents and that to avoid further litigation the respondents paid entire arrears as alleged by the petitioner on 5.6.2006 amounting to Rs.1800/ rents for the month of
November, 2005 to June, 2006 at the rate of Rs.225/ per month.
29. The further contention of the respondents is that the respondents have been carrying on business of Xerox and medical under the name and style of
Dhanalaxmi Xerox Centre and Medicals since the beginning in both the mulgies. The respondents have not violated any terms of the written agreement. The respondents are entitled to carry on lawful business and they are doing the said business after obtaining required licenses and no such 17 ground was taken in the earlier proceedings and that the petitioner is not entitled to claim eviction on the ground of change of nature of business.
30. The further contention of the respondents is that the requirement as pleaded by the petitioners is not bonafide, genuine and pressing and that the petitioner is the owner of several non residential properties in the twin cities and that the son of the petitioner by name Khaja Arshad Moin is a builder by profession and carrying on business activities under the name and style of
M.N. Constructions and that he has constructed a complex consisting of five shops in ground floor and two upper floors opposite to Madina Hotel,
Hyderabad and he is also having link travel agency and apart from this he is also carrying on hotel business at RTC Cross roads. Hence, the requirement of the petitioner is not bonafide and genuine and that the petitioner filed the present eviction petition so as to get evict the respondents illegally. Hence, the respondents prayed for dismissal of the petition with costs.
31. During the pendency of the petition, the petitioner filed a petition in
I.A.No 463 of 2006 in RC.No.179 of 2006 seeking amendment of the petition and to add para 12A and the said petition was allowed on 26.11.2008.
32. Thereafter, the respondents 1 and 2 filed additional counter and submitted that the respondents have not secured any alternative accommodation and that Dhanalaxmi Construction is a partnership firm of respondents family members and that the said firm has constructed a residential complex known as “Dhanalaxmi residency” for the benefit of 18 respondents family members and that it is not commercial property and that
Ratna Complex is a partnership firm consisting of family members of respondents and it is also purely a residential one and as such the question of respondents secured alternative accommodation does not arise at all and pray to dismiss the petition.
33.The petitioner filed a petition in I.A.No.436 of 2009 in RC.No. 179 of 2006 under Order 1 Rule 10 of CPC praying this court to implead Khaja
Arshad Moin as petitioner No.2 and also for consequential amendment and the said petition was allowed on 16.12.2009.
34. Thereafter the respondents have filed additional counter dated 26.3.2010 and submitted that the petitioner no.2 in his capacity as General
Power of Attorney Holder No.1, has specifically pleaded that the petitioner
No.1 i.e., his mother is mentally unstable and her health is not good and sound position and in such circumstances, the execution of Gift settlement deed in favour of petitioner No.2 is under suspicion and that when the document is executed by an unsound person, such gift deed is not a valid document in the eye of law and pray to dismiss the petition.
35. Pending petition, petitioner No.2 died on 11.10.2010. The Legal representatives of the deceased petitioner No.2 filed a petition in I.A.No. 497 of 2010 in RC.No.179 of 2006 to bring them, as petitioners 3 to 7 and the said petition was allowed on 30.11.2010.
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36. Thereafter the respondents 1 and 2 filed additional counter and submitted that the petitioners are seeking eviction on the alleged grounds is baseless and with malafide intention. It is admitted that though the petitioner
No.2 is expired on 11.10.2010. It is denied that the petitioners 3 to 7 are only legal heirs of petitioner No.2. The petitioner No.1 had alone filed the case.
Petitioner No.2 was impleaded claiming under a gift deed. Hence, the petitioner No.1 can prosecute the matter and sought for dismissal of petition.
37. The petitioners filed I.A.No.27 of 2011 in RC.No.179 OF 2006 under
Order 6 Rule 17 of CPC for amending para 5 of the eviction petition by adding para 5(a) and the same was allowed on 12.12.2011.
38. Thereafter, the respondents have filed additional counter and submitted that the bonafide personal requirement of petitioners 3 to 7 is baseless and with a malafide intention and that the proposed intention to start business by the legal representatives of petitioner No.2 is false and that after the death of petitioner No.2 there is no bonafide requirement.
39. Both the RC No. 178 of 2006 and RC No. 179 of 2006 were clubbed and Common Evidence recorded in both the RCs as per the orders in IA
No.276 of 2007 in RC No. 178 of 2006 dt: 15.7.2009.
40.During the course of trial, on behalf of the petitioners, the General
Power of Attorney Holder of petitioner No.1 was examined as PW1 and Exs.P1 20 to P8 were marked. The petitioner No. 6 was examined as PW2 and Ex.P9 and
P10 were marked. During the course of cross examination of RW1, the learned counsel for the petitioner confronted the deposition of RW1 pertaining to RC.No. 209/2006 on the file of I Additional Rent Controller, Hyderabad and got marked portions of deposition as Ex.P11 and Ex.P12. The petitioner
No.3 was examined as CW1. The petitioner No.1 was examined as CW2. On the other hand, the respondent No.1 examined himself as RW1 and Exs.R1 to
R3, were marked.
41.Heard the arguments of both the learned counsels.
42. To consider the said rival contentions of both parties, the following points that arose for consideration in RC No. 178 of 2006,
1) Whether the eviction petition filed by Khaja
Arshad Moin as the General Power of Attorney Holder of petitioner No.1 is maintainable?
2) Whether the respondents have committed willful default in respect of payment of municipal property tax?
3) Whether the respondents have committed willful default in payment of rents from November, 2005 to March, 2006 ?
4) Whether the requirement of petition schedule premises by the petitioner No.6 is bonafide one?
5) Whether the respondents have secured alternative accommodation?
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6) Whether the respondents have changed the nature of business in the petition schedule property?
7) To what relief?
43.To consider the said rival contentions of both parties, the following points that arose for consideration in RC.No. 179 of 2006, 1Whether the eviction petition filed by Khaja
Arshad Moin as the General Power of Attorney Holder of petitioner No.1 is maintainable?
2Whether the respondents have committed willful default in respect of payment of municipal property tax?
3Whether the respondents have committed willful default in payment of rents from November, 2005 to March, 2006 ?
4Whether the requirement of petition schedule premises by the petitioner No.6 is bonafide one?
5Whether the respondents have secured alternative accommodation?
6Whether the respondents have changed the nature of business in the petition schedule property?
7To what relief?
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44. The admitted facts in both the RC petitions are that:
i)There is no dispute about jural relationship between the petitioner No.1 and the respondents as landlady and tenants in respect of the petition schedule mulgies.
ii)The identification of the petition schedule mulgies is not in dispute.
iii)Filing of eviction petitions by the petitioner in R.C.No.258 of 1992 and RC.No.261 of 1992 on the file of II Additional Rent
Controller, Hyderabad and that the said petitions were dismissed for default on 5.11.1996; aggrieved by the same, the petitioner filed restoration applications, the same were dismissed; against which the petitioner preferred an appeal and the appeal was also dismissed on 22.9.1999.
iv)The petitioner No.2 (alleged General Power of Attorney Holder of petitioner No.1) died on 11.10.2010.
v)The petitioner No.1 i.e., Noor Jehan Begum died during the pendency of these eviction petitions.
vi)There is no dispute of filing of suit by the petitioner No.6 against the petitioner No.1 and other family members of petitioner No.6 in O S.No. 777 of 2011 on the file of Hon’ble II Additional Chief
Judge, City Civil Court, Hyderabad for declaration that the
registered cancellation of gift settlement deed, dated 16.4.2011 as illegal, null and void and not binding on the plaintiff therein and to restrain defendant No.1 therein from alienating the petition 23 schedule premises to third parties and for necessary entries in the office of the Sub Registrar, S.R.Nagar Branch, Hyderabad.
vii)The petitioners filed I.A.No. 180 of 2018 in RC No. 178 of 2006 and I.A.No.183 of 2018 in RC 179 of 2006 under Rule 7 (5) of the
Andhra Pradesh Buildings (Lease, Rent & Eviction) Control
Rules, 1961 to receive the certified copy of General Power of
Attorney dated 16.3.2006, the said petitions were allowed by this court on 24.10.2018. Against the same, the respondents preferred two Revision Petitions in C.R.P.Nos.6807 of 2018 and 6808 of 2018 and both the revision petitions were allowed by setting aside the orders in I.A.No. 180 of 2018 in RC No. 178 of 2006 and I.A.No.183 of 2018 in RC 179 of 2006 dt:24.10.2018.
Point No.1 in RC No.178 of 2006 and RC No.179 of 2006:
45.The case of the petitioners is that the petitioner No.1 is the absolute owner of the double storied building in which both the petition schedule mulgies are part and parcel and that both the mulgies are in the ground floor bearing Municipal No.611063/1/3 and 611063/4 and that the petitioner
No1 filed both the eviction petitions through her son Khaja Arshad Moin by executing General Power of Attorney on 16.3.2006 and basing on the same, the eviction petitions were being prosecuted against the respondents, on the ground that the respondents have committed willful default in payment of property tax and also monthly rents and that the petition schedule mulgies 24 are required for bonafide requirement of General Power of Attorney Holder and that the respondents have secured alternative accommodation and that the respondents have changed the nature of business and that the petitioner is not the owner of any other non residential properties in the twin cities.
46.On the other hand, the case of the respondents is that they have not received copy of alleged General Power of Attorney and that the petitioner is hereby called upon to prove that Khaja Arshad Moin is duly constituted power of attorney holder of petitioner No.1 and is entitled to represent the petitioner No1 and continue the present proceedings and that they have not committed any willful default in payment of property tax and rents and that they have not secured any alternative accommodation and that the bonafide requirement as pleaded by the petitioners is false and sought for dismissal.
47. To prove the case of the petitioner, her General Power of Attorney Holder was examined as PW1 and he stated in his chief examination affidavit that, he is the General Power of attorney Holder of the petitioner No.1 in the eviction petition and he is well acquainted with the facts of the present case and he along with his mother gave instructions to file the eviction petition and he further reiterated the contents of the main RC petition. He exhibited
Exs.P1 to P8. During the course of cross examination PW1 deposed that he does not know what was mentioned in his affidavit, filed as a General Power of Attorney Holder of his mother and that his mother’s mental health is unstable. He adds that, he said that his mother’s health is not good.
25
48.Thereafter, the petitioner No 6 was examined in chief and cross as
PW2 and in the entire testimony of PW2, there is no whisper about the alleged General Power of Attorney. Thus the evidence of PW2 is not helpful in support of the case of petitioner in deciding the point No.1.
49.Later, the respondent No.1 was examined as RW1 and he stated in his chief examination affidavit that, the petitioner No.2 had filed the present eviction cases in the capacity as General Power of Attorney Holder of petitioner No.1 who is his mother and he has specifically pleaded that the petitioner No.1 is mentally unstable and her health is not in a good and sound position and that as per the cause title of the petition, petitioner No1 was represented by General Power of Attorney holder and whereas the petitioner No.1 was got examined as CW1 and denied the execution of any such document, as such the petitioners are hereby called upon to prove to the satisfaction of this court that Khaja Arshad Moin is duly constituted power of Attorney and whether his legal heirs are entitled to represent the original landlady of petitioner No.1 who passed away on 1.3.2016 after getting herself examined as CW1 in the present case. RW1 also reiterated the contents in his counter in his chief examination affidavit. The learned counsel for the petitioners cross examined RW1 at length and during the course of cross examination, RW1 deposed as follows:
“ It is true that the present RC is filed by the General Power of Attorney Holder of petitioner No.1. It is true that the General
Power of Attorney Holder is the son of petitioner No.1. I do not know whether I mentioned in my counter that the son of the present petitioner No.1 cannot represent the petitioner No.1 as her 26
General Power of Attorney Holder. I do not know whether we have any problems for execution of General Power of Attorney by the petitioner No.1 in favour of her son. It is true that as per the understanding among the family members of the petitioner No.1, a
Gift deed was executed in favour of the son of the petitioner No.1 who is her General Power of Attorney Holder. Witness adds that the said Gift deed was canceled by the petitioner No.1 in the year 2011.
It is true that the General Power of Attorney Holder of the petitioner
No.1 i.e., petitioner No.2 also died.”
50. The respondents during the course of trial, filed petitions Under Order 16 Rules 1 of CPC in I.A.No.344 of 2012 in RC.No.178 of 2006 and
I.A.No.345 of 2012 in RC.No.179 of 2006 to issue summons to the respondents / petitioners 1 & 3 to appear and depose before this court and also to produce the original of Gift Settlement Deed, dated 30.3.2009 vide document No.479/2009 and the original cancellation of Gift Settlement Deed,
dated 16.4.2011 vide document No.594/2011 and the said petitions were
allowed on merits on 2.7.2013.
51. The petitioner No.3 was examined as CW1. In her chief examination, there is no whisper about the alleged General Power of Attorney dated 16.3.2006 and she was cross examined by the learned counsel for the petitioners and during the course of cross examination, she deposed that:
“ I do not know who filed this RC against the tenant” 27
52. The petitioner No.1 who is the original owner was examined as CW2 and she is none other than the mother of PW1 and she stated in her chief examination that, “she is the first petitioner. Khaja Moinuddin is her husband.
She has two sons Khaja Arshad Moin and Khaja Shahed Moin and she has one daughter Afshan Patel”. she has not executed General Power of Attorney in favour of Khaja Arshad Moin to file the present case and that at present she is the owner of the petition schedule premises. The tenants in the petition schedule premises are paying rents to her. The petitioner No.6 is not entitled to receive rents from the tenants. Petitioner No.2 never disclosed her about present proceedings from 2006 and that While road widening, the Department of Metro acquired part of the petition schedule premises and gave remuneration for acquisition of land for an amount of Rs.36 lakhs by way of cheque to her as she is the owner”.
53.During the course of cross examination by the learned counsel for the petitioners, CW2 deposed that petitioner No.2 is her elder son. She further deposed that she does not remember whether the petitioner No.2 discussed with her for seeking eviction of the tenants of the petition schedule building and that she does not know whether the eviction petitions were filed by the petitioner No.2 on her behalf and that she has not given any power to her sons to take action against the tenants. She further deposed that she did not make any enquiry from the petitioner No.2 whether he filed eviction cases as he was looking after the matters. CW2 denied the suggestion that on 16.3.2006 she executed General Power of Attorney in favour of the second petitioner and based on that document, petitioner No.2 filed eviction cases against all the tenants.
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54. During the course of oral arguments, the learned counsel for the petitioners submitted that, the petitioner No.2 is the son of petitioner No.1 and he used to look after the affairs of the petitioner No.1 and that the petitioner No.1 has executed the General Power of Attorney in favour of petitioner No.2 to file the eviction case against the tenants, hence these petitions filed by the petitioner No.2 representing petitioner No.1 for eviction of the respondents from the petition schedule property. On the other hand, the respondents during the course of their arguments contended that these rent control petitions are not maintainable as no General Power of Attorney is filed and that the petitioner No.1 who is the original landlady herself examined in chief and cross as CW2 deposed that “she never executed any
General Power of attorney in favour of petitioner No.2”.
55. Admittedly, on perusal of Ex.P1 to Ex.P12 documents filed by the petitioners they do not support the contention of petitioners that, the petitioner No.1 executed General Power of Attorney in favour of petitioner
No.2. The petitioners filed I.A.NO.180 of 2018 in RC.No.178 of 2006 and
I.A.No.183 of 2018 in RC.No. 179 of 2006 under Rule 7(5) of the Andhra
Pradesh Buildings ( Lease, Rent & Eviction) Control Rules, to receive the certified copy of the General Power of Attorney dated 16.3.2006 allegedly executed by the petitioner No.1 in favour of the petitioner No.2 and the said
IAs were allowed on 24.10.2018. Aggrieved by the said orders, the respondents preferred Revisions vide C.R.P.Nos. 6807 and 6808 of 2018 on the file of Hon’ble High Court and the Hon’ble High Court vide common order
dated 18.2.2019 observed as follows:
29 “ 22nd para: Thus, the respondents, who were fully aware that petitioners had already raised the plea that the General
Power of Attorney was not furnished to them in the counter filed by them to the eviction petitions in December, 2007, and who were also aware of the evidence of 6th respondent given on 19.11.2013 that she had never executed such
General Power of Attorney, waited till 10.10.2018 to file these applications.
23rd para: No doubt procedure is a hand maid of justice, but in the instant case unfortunately, the Rent Controller did not focus on the delay on the part of the respondent Nos.2 to 5 in filing this document or on the statement in the evidence of RW2 and focused more on when relevancy of the said document is to be looked into. He ought to have considered whether good cause is shown by the respondent
Nos. 2 to 5 for not filing the General Power of Attorney at the first hearing of the RC but failed to do so.
24th para:Also when 6th respondent had denied ever executing any such General Power of Attorney dated 16.3.2006 in favour of her son Khaja Arshad Moin, the document purporting to be certified copy of the GPA executed by her in favour of her son, cannot be received in evidence.
25th para: In this view of the matter, I am of the opinion that the orders passed by the Principal Rent Controller,
Hyderabad, in I.A.No.180 of 2018 in R.C.No. 178 of 2006 and I.A.No. 183 of 2018 in RC 179 of 2006 are liable to be interfered with in exercise of the jurisdiction of this court under Article 227 of the Constitution of India.
30 26th para: Accordingly, both these Revision Petitions are allowed and the said orders are set aside. No costs.”
56. The orders under Revisions have become final since the petitioner No.2 has not preferred any SLP before the Hon’ble Supreme Court. Hence, in view of the orders of the Hon’ble High Court in CRP Nos. 6807 of 2018 and 6808 of 2018 and also on considering oral evidence of CW2 who clearly deposed that:
“She has not given any power to her son to take action against the tenants and that she does not know whether the eviction petitions were filed by the second petitioner on her behalf”.
57. In view of above evidence of CW2, this court is of the opinion that the alleged General Power of Attorney dated 16.3.2006 was not executed by the petitioner No.1 in favour of petitioner No.2 and hence the eviction petitions filed by the petitioner No.2 basing on the alleged General Power of
Attorney is not maintainable. Therefore, this point is answered against the petitioners and in favour of the respondents.
Points 2 and 3 in R.C.No. 178 of 2006 and R.C.No.179 of 2006:
58.The case of the petitioner is that the respondent committed willful default in payment of municipal property tax of Rs.11,495/ up to 31.3.2006 and that as per the terms of the rental agreement, the respondents have agreed to pay municipal property tax and that non payment of municipal property tax by the respondents amounts to willful default and hence, they 31 are liable to be evicted from the petition schedule premises on the ground of willful default in nonpayment of municipal tax.
59.Further the case of the petitioners is that the respondents have intentionally and deliberately withheld the rents for the months of
November and December, 2005 and January to March, 2006 amounting to
Rs.1225/ at the rate of Rs.225/ per month and as such the respondents are liable to be evicted on the ground of willful default in nonpayment of monthly rents in respect of the petition schedule premises and as such they are liable to be evicted.
60. On the other hand, the case of the respondents is that the respondents have not committed any default in payment of monthly rents and that the petitioners vendor never intimated about the quantum of municipal tax nor the petitioners sent any demand notice received by them from the Municipal Corporation enabling the respondents to pay the same and that the terms of agreement are not binding on the respondents, as the same is expired by efflux of time and that the said agreement is executed between the respondents and the vendor of the petitioner No.1 and that the demand notice was never served on the respondents by the municipal authorities, but they have paid the entire arrears of municipal tax in respect of schedule premises and adjoining mulgi vide receipt No.92 of Book No.
4043 dated 15.12.2005 for Rs.11,495/ vide cheque No. 181050, dated 15.12.2005 drawn on Andhra Bank, Khairatabad, Hyderabad as such there are no arrears due in payment of property tax as on the date of the petition.
The respondents have informed to the petitioners about the payment of 32 property tax to Municipal Corporation of Hyderabad authorities and asked to refund the excess amount paid to MCH authorities after deducting a sum of
Rs.900/ towards the rent for the month of November and December, 2005 in respect of the petition schedule premises and adjoining mulgi vide letter
dated 29.12.2005 duly enclosing copy of the cheque and receipt issued by
the Municipal authorities. The petitioner No.1 failed to give any reply nor refunded the excess amount lying with her and the respondents further submitted that to avoid further litigation, the respondents paid entire arrears of rents as alleged by the petitioner on 5.6.2006 for Rs.1800/ for the months from November, 2005 to June, 2006 at the rate of Rs.225/ per month. The petitioners never demanded any rents nor demanded the respondents to pay the municipal tax as alleged.
61. Admittedly, whenever willful default ground is pleaded by the petitioner / landlord, the burden of proof lies on the respondents/tenants that they have to establish the same by filing cogent evidence. In the present case also the burden of proof lies on the respondents that they have to establish that they paid rents to the petitioner No.1 regularly and they did not commit any default in payment of rents much less willful default. It is the specific contention of the petitioner that the respondent has not paid the municipal tax for Rs.11,495/ and also the respondent has not paid the rents from November, 2005 to March, 2006. The learned counsel for the respondent cross examined PW1 at length and could elicit the following:
“I have not filed rental agreement dated 8.5.1981. I am in possession of the same. I have not filed any document to show that 33 respondent has to pay municipal tax. I do not know what was the
MCH tax of the schedule mulgi per year. I have not received any notice from the MCH demanding municipal tax. I do not know respondent paid tax through cheque No.181050 dated 15.12.2005 by Andhra
Bank, Khairatabad, Hyderabad. Myself never paid MCH tax as the tenants have to pay. I did not pay municipal tax before filing RC. It is true that the respondent wrote a letter on 29.12.2005 to my mother intimating about the payment of municipal tax under the distress warrant by enclosing a xerox copy of the cheque issued to the MCH.
We did not issue any rejoinder reply to the said letter dated 29.12.2005. We did not refund any excess amount to the respondents after receipt of the letter dated 29.12.2005. I am aware of the payment of rents by the respondents subsequent to filing of the present eviction petitions.”
62.The original owner was examined as CW2 in chief and cross and she deposed that she has not executed General Power of Attorney in favour of petitioner No.2 and that the tenants of the petition schedule property are paying rents to her. Further, the learned counsel for the petitioners cross examined RW1 at length but could not elicit anything in support of the case of the petitioner that the respondents have committed willful default in payment of municipal tax and that they have also committed willful default in payment of rents from November, 2005 to March, 2006.
34
63.On considering the entire oral evidence of PW1 and also the documents, it is clear that the petitioners have not filed the alleged rental deed which is in possession of the petitioner No.2/PW1 as admitted by him during the cross examination. Further PW1 clearly admitted that there is no due of property tax. The CW2 who is none other than the original owner of the petition schedule property clearly admitted that she has not executed any
General Power of Attorney in favour of petitioner No.2 and the same is discussed at length at point No.l above. In view of the above discussion, it is clear that the respondents are able to establish their contention that they have not committed willful default in payment of municipal tax and rents as alleged by the petitioners and therefore, these points are answered against the petitioners and in favour of the respondents.
Point No.4 in RC No.178 of 2006 and RC No.179 of 2006::
64. Another ground pleaded by the petitioner is that, the petitioners require the petition schedule property on the ground of bonafide requirement. The contention of the petitioners is that the petition schedule mulgies are bonafidely required along with the other mulgies for the establishment of hotel business by the petitioner No.2/ alleged General Power of Attorney
Holder of petitioner No.1 and that the petition schedule mulgies are suitable and are located in a commercial area and that the General Power of attorney holder is running a hotel business at RTC cross roads, in a rented premises and that his owner requested him to vacate from the rented premises and as such, he needs the petition schedule mulgies for his bonafide requirement.
35
65. During pendency of the eviction petitions, the petitioners filed a petition in I.A.No.496 of 2010 in RC.No.178 of 2006 to bring the legal representatives of the deceased petitioner No.2 as petitioners 3 to 7 and the said petition was allowed on 30.11.2010. As per the orders in I.A.No. 497 of 2010 in RC. No. 179 of 2006 dt:30.11.2010, the petitioners 3 to 7 brought on record in RC. No. 179 of 2006.
66.Thereafter the petitioners 3 to 7 filed I.A.No.26 of 2011 in RC.No. 178 of 2006 and I.A.No.27 of 2011 in RC.No.179 of 2006 for amendment of the eviction petition and the same were allowed. Later the main petition was amended in respect of the ground of bonafide requirement. As per the amended petition, it is submitted by the petitioners that the petitioner No.2 expired on 11.10.2010 leaving behind the petitioners 3 to 7 being his legal heirs and successors. It is stated that petitioner No.2 is only earning member and carrying on business at RTC X Roads and that after the death of petitioner No.2, the petitioner No.6 has to take care of the family members and that petitioner No.6 intends to commence restaurant business in the petition schedule premises in order to support the family and that the petition schedule property is suitable and convenient to establish hotel business and that petitioners 3 to 7 do not own any other non residential buildings in the twin cities as such the requirement is bonafide and pressing.
67.It is further submitted that petitioner No.6 requires the petition schedule premises as the petitioner No.6 is educated and that he can manage the restaurant business and that the requirement of petitioner No.6 is bonafide, genuine and pressing .
36
68.On the other hand the respondents filed counter denying the bonafide requirement of petitioner No.6 in respect of petition schedule mulgies and contended that the requirement of the petitioner No.6 is not bonafide, genuine and pressing.
69.In point No.1 above, this court has discussed at length regarding maintainability of the eviction petition and came to conclusion that the main eviction petition filed by the petitioner No.2 as General Power of attorney
Holder of petitioner No.1 is not maintainable. Admittedly, no cogent evidence filed by the respondents in support of their contention that the petitioner
No.6 is having any other non residential property in the twin cities apart from the petition schedule mulgi.
70.Admittedly, petitioner No.6 is an unemployed and moreover during the course of cross examination of RW1, deposed that he cannot say whether the petition schedule mulgies are suitable for starting hotel business and he cannot say if he vacate the petition schedule mulgies, they are suitable for running hotel business and that he does not know whether petitioner No.1 and her legal heirs are having any other non residential premises apart from the petition schedule building in the cities of Hyderabad and Secunderabad.
RW1 further deposed that he does not know that the petition schedule mulgies are genuinely required for starting hotel business by the petitioner
No.1 and her legal heirs. The learned counsel for the respondent cross examined PW1 and PW2 at length but could not elicit anything favorable to the case of the respondents.
37
71.Hence, in view of the above said admissions of RW1 it is clear that the respondents allegation in the counter that the petitioners are having other non residential properties apart from the petition schedule mulgies is a bald allegation and further the RW1 clearly admitted during the course of cross examination that the petition schedule mulgies are suitable for hotel business.
72.Further, this court also relied on the following decision in Krishna
Kumar Rastogi Vs.Sumitra Devi reported in AIR 2014 SC 3635 wherein the
Hon’ble Apex court held that:
“ It is the choice of the landlord to choose the place for the business which is most suitable for him and he has complete freedom in the matter and the landlord is the best judge of his requirement and courts have no concern to dictate the landlord as to how and in what manner he should live”.
73.Hence, by relying on the above said decision, and the admissions of
RW1 it is clear that the bonafide requirement pleaded by the petitioners is genuine and pressing and therefore, this point is answered in favour of the petitioners and against the respondents.
Point Nos. 5 and 6 in RC No.178 of 2006 and RC No.179 of 2006:
74.The contention of the petitioners is that the respondents have secured alternative accommodation and also that the respondents have changed the nature of business from “medical hall and general stores” to that of “Xerox business” and that the respondents are owning several nonresidential properties under the name and style of “Ratna Complex” at Yellareddyguda, 38
Hyderabad and also “Dhanalaxmi Residency” etc. On the other hand, the respondents contended that since the beginning in both the mulgies the respondents are carrying on business in “Xerox and Medical” under the name and style of “Dhanalaxmi Xerox centre and Medicals” and that the allegation that the respondents are owning other properties is false. Infact, Dhanalaxmi
Constructions is a partnership firm of respondents family members. The said firm has constructed residential complex known as Dhanalaxmi Residency and it is purely a residential one and that the Ratna Complex is also a partnership firm consisting of family members of respondents which is also a purely residential one. The allegation of the petitioner that the said complexes are commercial is false.
75.Admittedly, whenever the ground of securing alternative accommodation and change of nature of business is pleaded by the landlord / petitioner the burden of proof is on the landlord and she has to establish the same by filing cogent evidence. In the present case the petitioner/landlord has to prove the same by filing cogent evidence. The petitioners examined PW1 and PW2 and Exs.P1 to P12 were marked and on perusal of the said Exhibits, they do not support the contention of the petitioners that the respondents have secured alternative accommodation and that the respondents have changed the nature of the business from “medical and General stores” to that of “Xerox centre”. Further RW1 deposed that he is not having any own buildings near Oriental Bank of commerce, S.R.Nagar and that Dhanalaxmi Constructions is owned by his father and his brothers.
RW1 admitted that his father and brothers constructed the complex prior to 39 the year 2000 and the same was sold away. He further deposed that commercial complex by name Ratna complex is owned by his father and his brothers and is a residential one. Hence, from the above said testimony of
RW1, it is clear that the learned counsel for the petitioners could not elicit anything during the cross examination of RW1 that, the respondents have secured alternative accommodation and the respondents changed the nature of the business from “medical and general stores” to that of “Xerox centre”.
The contention of petitioners is that at the time of inception of the tenancy as per the rental deed, the petition schedule premises was obtained for the purpose of medical and general stores and that he changed the nature of business by converting the medical and General stores into Xerox centre without oral or written permission either from the vendor of the petitioner or the petitioner No.1. Admittedly, the petitioners did not file any rental deed in the court to prove their contention that the vendors of the petitioner No.1 leased out the petition schedule mulgies to the respondents for doing medical and general stores business. Even though PW1 deposed during the course of his cross examination the said rental deed is in his possession, the petitioners failed to file the said rental deed to show that the said terms and conditions under the rental deed are being violated by the respondents for the best reasons known to them. Hence, in view of the above said discussion, this court comes to the conclusion that the petitioners failed to establish that the respondents secured alternative accommodation and that the respondents changed the nature of the business from “medical and general stores” to “Xerox center”. This court discussed at length about the maintainability of the eviction petition filed by the alleged General Power of 40
Attorney holder representing the petitioner No.1 at point no.1, and this court already gave finding that the General Power of attorney is not executed by the petitioner No.1 in favour of petitioner No.2 and as such the main eviction petitions are not maintainable. Therefore the petitioners are not entitled for the relief as prayed. Thus, these points are decided against the petitioners and in favour of the respondents.
Point No.7 in RC No.178 of 2006 and RC No.179 of 2006:
76.In view of answering point Nos.1, 2, 3, 5 and 6 against the petitioners and in favour of the respondents, these petitions are to be dismissed.
In the result, these petitions are dismissed without costs.
Dictated to the Stenographer, transcribed and typed by him, corrected and
pronounced by me in open court this the 6th day of March, 2019.
Sd/
PRINCIPAL RENT CONTROLLER,
HYDERABAD.
Appendix of Evidence
Witnesses examined for
Petitioners: Respondents; PW1: Khaja Arshad MoinRW1: T.V.Ratna Rao PW2: Khaja Ahwar Arshad
Witnesses gave evidence on receipt of summons from the Court:
CW1: Yazdani Banu CW2: Noor Jahan Begum
Documents marked for
Petitioners: Ex.P1: Certified copy of eviction petition in RC.No.261/92 Ex.P2: Certified copy of counter in RC.No.261/92 Ex.P3: Letter dt:29.12.2005 issued by Dhana Laxmi Medical hall along with cover. Ex.P4: Certified copy of Eviction petition in RC.No.258/92 Ex.P5: Certified copy of counter in RC.No.258/92 41
Ex.P6: Certified copy of Gift settlement deed, dated 30.3.2009 Ex.P7: Certified copy of Gift settlement deed, dated 30.3.2009 Ex.P8: Original gift settlement deed, dated 30.3.2009 Ex.P9: Certified copy of judgment in OS.No. 777/2011 dt:14.6.2013 passed by the Hon’ble II Additional Chief Judge, CCC, Hyderabad. Ex.P10: Certified copy of decree in OS.No. 777/2011 dt:14.6.2013 Ex.P11: Marked portion in the deposition of RW1 in RC.No.209/2006 Ex.P12: Marked portion in the deposition of RW1 in RC.No.209/2006
Respondents:
Ex.R1 : Certified copy of Cancellation of Gift settlement deed, dated 16.4.2011. Ex.R1(a): Postal Receipt dt:4.5.2006 Ex.R2 : Acknowledgement of money order, dated 4.5.2006 Ex.R3 : Acknowledgement of money order, dated 24.5.2006.
Sd/
PRINCIPAL RENT CONTROLLER
HYDERABAD.
Schedule of property in RC 178 of 2006
All that Mulgi bearing M.No.611063/1/3, Saifabad, Hyderabad, admeasuring 254.03 sq.ft bounded by:
North: 611063/1/2 South: 611063/1/4 East : Open land West : Road. Sd/
PRINCIPAL RENT CONTROLLER
HYDERABAD.
Schedule of property in RC 179 of 2006
All that Mulgi bearing M.No.611063/4, Saifabad, Hyderabad, admeasuring 254.03 sq.ft bounded by:
North: 611063/1/3 South: 611063/1/5 East : Open land West : Road.
Sd/
PRINCIPAL RENT CONTROLLER
HYDERABAD.