IN THE COURT OF THE ADDITIONAL CHIEF JUDGE,
CITY SMALL CAUSES COURT AT HYDERABAD.
Thursday, the 17th day of October, 2019.
PRESENT: Mr. M.V.RAMESH,
CHIEF JUDGE
ADDL. CHIEF JUDGE (FAC)
R.C.A. No.74 of 2017
Between:
1. Smt. Manthapuram Yashoda (died)
2. M. Krishna, S/o. late Bhagwantha, aged about 56 years, R/o. 1st floor H.No.41631, situate at Troop Bazar, Hyderabad.
3. M. Prakash (died) per LRs.
4. M. Anitha, W/o. M. Prakash, aged about 52 years, Occ: Housewife.
5. M. Pravallika, D/o. M. Prakash, aged about 31 years, Occ: Housewife.
6. M. Pratibha, D/o. M. Prakash, aged about 30 years, occ: Housewife.
7. M. Pragnaya, D/o. M. Prakash, aged about 28 years, Occ: Housewife.
8. Sai Pradwish, S/o. M. Prakash, aged about 26 years, Occ: Student. (Appellants No.4 to 8 are residents of 41631 & 632, Troop Bazar, Hindustan Galli, Hyderabad.) (Appellants No. 4 to 8 are added as per orders, dt. 23.1.2019 vide I.A. No.280/2018 in the appeal).
.. AppellantsLandlords
(Petitioners in R.C.) A n d
Mohd. Zaffaruddin Siddiqui, S/o. Mohd. Badaruddin Siddiqui, aged about 35 years, Occ: Business, R/o. H.No.177153, Dabeerpura, Hyderabad.
...RespondentTenant
(Respondent in R.C.) 2
Appeal against the orders, dated 21st February 2017 in R.C.
No.314 of 2012 on the file of the I Additional Rent Controller,
City Small Causes Court, Hyderabad.
Between:
1. Smt. Manthapuram Yashoda (died)
2. M. Krishna
3. M. Prakash ...Petitioners.
And
Mohd. Zaffaruddin Siddiqui ... Respondent.
This Rent Control Appeal having listed on 16.9.2019 before this Appellate Authority for final hearing in the presence of Mr. R.A.
Achuthanand, Advocate for the appellants and Mr. Mohammed
Turab Ali Irfan, Advocate for respondent and the matter having been stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The unsuccessful landlords preferred this appeal under
Section 20(1) of the Telangana Buildings (Lease, Rent & Eviction)
Control Act 1960 (for short 'the Act') against the sole tenant being aggrieved by the orders, dated 2122017 passed in R.C. No.314 of 2012 on the file of the I Additional Rent Controller, City Small
Causes Court, Hyderabad, dismissing the eviction application filed under Section 10(2)(i) wilful default in payment of monthly rents, under Section 10(2)(vi)denial of title and Section 10C of the Act first petitioner being the senior citizen and widow in respect of the nonresidential premises on the southern part of the property bearing shop No.41631 and 632, situate at Troop Bazar, 3
Hyderabad (in brevity 'the PSP'), with a prayer to allow the appeal by setting aside the impugned orders, dt. 21.2.2017 and consequently allow the R.C. No.314 of 2012 and order eviction against the tenant on the grounds enumerated in the R.C. application, in the interests of justice.
2.For the sake of convenience the parties hereinafter referred to the Appellants herein as 'landlords' and the Respondent herein as the 'tenant'.
3.The Trial Tribunal framed the following points for determination and examined the following witnesses:
“(1) Whether there was wilful default in payment of rents, as alleged in the eviction petition? (2) Whether the respondent ceased to occupy the petition schedule property without reasonable cause? (3) Whether the requirement of the petition schedule property by the petitioners is bona fide requirement?
4.Before the Rent Controller, the second landlord
M.Krishna himself was examined as PW1 and Ex.P.1 was got marked. The sole tenant himself was examined as RW1 and Exs.R1 to R5 documents were got marked on behalf of the tenant in support of his defence.
5.During the pendency of the Appeal as per the orders passed in I.A. No.146 of 2019 in R.C.A. No.74 of 2017, dated 4 3.9.2019, the tenant got marked the certified copies of Judgment and decree, dt. 25.9.2018 in O.S. No.1463 of 2012 on the file of the
Addl. JudgecumVI Senior Civil Judge, City Small Causes Court,
Hyderabad, as Exs.R6 and R7 respectively.
6.POINTS FOR DETERMINATION:
1) Whether the impugned orders passed by the learned I
Additional Rent Controller, City Small Causes Court,
Hyderabad, in R.C.No.314 of 2012, dated 21.2.2017 suffer from any material irregularity or illegality?
2) To what relief and costs?
7.Before addressing to the rival contentions of the parties let us have a bird's eye view of the admitted facts which are important and germane under Sections 17 and 58 of the Indian
Evidence Act:
ADMITTED FACTS:
(1) The jural relationship of landlords and tenant in respect of the PSP between the parties is not in dispute and originally the tenancy in respect of the PSP was commenced between the first landladylate M. Yashoda and the tenant in the month of April 2001 under a rental agreement, dated 6.5.2001 with an initial monthly rent of Rs.500/.
(2) It is an undisputed fact that there was negotiation between the original landladyM.Yashoda and the tenant and the tenant agreed to pay Rs.2,50,000/ towards security deposit amount in respect of the PSP which is interest free refundable amount at the time of vacating the premises and 5 out of the promise the tenant paid Rs.2,00,000/ towards security deposit amount while promising to pay the balance of Rs.50,000/ within two months and the landlady executed a receipt under Ex.R2, dt. 6.5.2001 in the presence of two witnesses but the same is not paid by the tenant for want of funds.
(3) The PSP building consists of ground + two upper floors and the PSP shop is situate in ground floor and the second landlord is residing in the first floor whereas the third landlord is residing in the second floor of the premises.
(4) The tenant is doing electrical business in the PSP in the name and style of 'Roshan Electricals' and the PSP is situate at
Troop Bazar, Hyderabad, which is located in a prime commercial locality and in the heart of Hyderabad
Metropolitan town, which is popular commercial hub for electrical, sanitaryware and other commercial establishments like Hotels, Banks etc.
(5) The original landlady M. Yashoda (first petitioner) died during the pendency of the R.C. proceedings leaving behind her, her two sons petitioners 2 and 3.
(6) While things stood thus, the tenant claimed that he purchased the PSP under an agreement of sale, dated 26.7.2004Ex.R1 for a total sale consideration of
Rs.10,00,000/ from the original landladyM.Yashoda and out of the total sale consideration an amount of
Rs.4,00,000/ was paid under Ex.R1Agreement of sale, dt.26.7.2004 towards advance amount promising to repay the balance sale consideration within 10 years as per the terms and conditions No.1 of Ex.R1. The said landlady agreed to execute a registered sale deed after receipt of balance sale consideration of Rs.6,00,000/ and since the tenant was already in possession of the PSP shop.
6 (7) The tenant also got issued Ex.R4legal notice, dated 2.2.2012 to M.Yashoda calling upon her to receive the balance sale consideration amount of Rs.6,00,000/ and to execute a registered sale deed in favour of the tenant and the same was received by the original landlady under Ex.R5postal acknowledgements. Thereafter the tenant filed civil suit vide
O.S. No.1463 of 2012 on the file of the Addl. JudgecumVI
Senior Civil Judge, City Small Causes Court, Hyderabad,
seeking specific performance of agreement of sale Ex.R1 and the said suit was decreed after disposal of the Rent
Control Application, on 25.9.2018 on merits (vide Exs.R6 and R7certified copies of judgment and decree in O.S.
No.1463 of 2012).
(8) Pursuant to the judgment and decree, dt. 25.9.2018 passed by the trial Court in O.S. No.1463 of 2012, the tenant deposited the balance sale consideration amount of
Rs.6,00,000/ within one month from the date of decree by way of challan on 1.10.2018 itself and it is stated that the landlords preferred Appeal on the file of the Hon'ble High
Court for the State of Telangana vide CCCA No.50 of 2019 and the same is pending for adjudication.
(9) The self same landlords also filed an application under
Section 4(1) of the Act seeking determination of fair rent in respect of the PSP and the learned Rent Controller determined the fair rent on merits at Rs.10,000/ per month by virtue of orders, dated 21.2.2017 with a periodical enhancement at 10% for every two years on the existing rate of rent.
(10) Aggrieved by the said orders under Section 4(1) of the Act determining the fair rent in respect of the PSP the tenant preferred appeal R.C.A. No.51 of 2017 on the file of this
Court and the same is pending.
7
Being disappointed by the quantum of fair rent determining by the learned Rent Controller, the landlords also preferred Cross Appeal vide R.C.A. No.124 of 2017 seeking determination of fair rent at Rs.30,000/ per month as prayed for before the learned Rent Controller under
Section 4(1) of the Act and the same is also pending for adjudication.
(11) Before the learned Rent Controller the landlord claimed the monthly rent at Rs.3,000/ exclusive of payment of electricity consumption charges + property taxes under oral tenancy and the monthly rent is payable on or before 5th of every succeeding month, whereas the tenant claimed that the tenancy was materialized between the parties on oral terms on a monthly rent of Rs.500/ at the time of inception of tenancy and strangely the said controversy was not answered by the learned Rent Controller and failed to decide the quantum of rent.
8.The appellantslandlords raised grounds of appeal, inter alia, stated that the impugned orders are against to the law, justice and good conscience as the learned Rent Controller failed to consider the oral and documentary evidence available on record in right perspective and dismissed the eviction application erroneously.
That the learned Rent Controller failed to consider the plea of the landlords that the alleged agreement of sale under Ex.R1 is fabricated document and denied by the landlady and the burden of proof is on the landlady to establish that they have not received the monthly rents from August 2010 to August 2012. That the Court below failed to consider that there is a contractual obligation on the 8 part of the tenant to pay the municipal property taxes and there is no record produced by the tenant to show that he has paid the municipal property taxes. It is urged that there is no privity of contract that the tenant has to pay the property taxes. It is also urged that the Court below failed to consider the eviction application was filed by the first petitionerlandlady who is a senior citizen of 90 years old and there is no dispute as regards to filing of the eviction application by the widow.
POINT NO.1
9.The second petitionerAppellantM.Krishna himself examined as PW1 and got relied on Ex.P1 in support of the eviction application. PW1 stated that he filed the chief affidavit on behalf of the first petitioner who is his mother and senior citizen aged about 90 years old and that she is bedridden, her eyes have become weak and hearing is also impaired. He is deposing on behalf of her mother also. That his mother is the absolute owner of three shops in the ground floor and the PSP is situate on the southern part of the said property. PW1 stated that he has been managing the affairs of the PSP on behalf of his mother and the respondent is the tenant of the first petitionerfirst landlady in respect of the PSP on a monthly rent of Rs.3,000/ exclusive of payment of electricity consumption charges and municipal taxes and that the tenancy is one oral from month to month as per 9
English calender month. The rent is liable to be paid on or before 5th of every succeeding month.
10.PW1, interalia, stated that the tenant obtained the PSP from the first landladylate M.Yashoda who settled the terms and conditions of the tenancy, which was settled by his brotherPrakash (petitioner No.3) and thereafter PW1 is managing the affairs of the
PSP, in the month of April 2001 on a monthly rent of Rs.3,000/ exclusive of payment of electricity consumption charges and municipal taxes. As and when the rent was being paid by the tenant, the first landlady's son M.Prakash (3rd petitioner) used to pass the rent receipts. That the tenant is irregular in payment of monthly rents to the landlords and the tenant lastly paid the rent for the month of July 2010 to the first landlady's son M.Prakash and he has passed the rent receipt and thereafter the tenant committed wilful default in payment of monthly rent from August 2010 to August 2012 at the rate of Rs.3,000/ per month. The tenant has not paid the rents even after several requests and demands made by the landlords and that there is supine indifference on the part of the tenant in withholding the monthly rents payable to the landlords. Thus the tenant is a chronic and wilful defaulter in payment of monthly rents and therefore he is liable to be evicted from the demised premises. That the tenant has also not paid the property taxes in respect of the PSP to the
Municipal Authorities for the past 1 1/2 years and that the tenant 10 also committed wilful default in payment of electricity consumption charges of Rs.4,000/.
11.On the other hand, the sole tenant himself examined as
RW1 and interalia stated that he is the tenant of the PSP shop admeasuring 122 sq.ft., and he obtained the PSP on 6.5.2001 on oral lease on a monthly rent of Rs.500/ and he paid an amount of
Rs.2,00,000/ to the original landladyM.Yashoda who passed receipt, dated 6.5.2001 towards advance deposit. RW1 stated that he obtained the PSP for carrying on business of sale of electrical goods in the name and style of 'Roshan Electricals', that there is no fixed time for payment of monthly rents whenever landlady
M.Yeshoda or her agents approaches him the rent is paid to them, there is no practice of issuing rent receipts by the landlady. RW1 denied that the monthly rent is Rs.3,000/ as on the date of filing of the R.C. application and also denied that rent is payable on or
before 5th of every succeeding month apart from municipal taxes in
respect of the PSP to the Municipal Authorities.
12.RW1 stated that original landladyM.Yeshoda being the owner of the premises offered the PSP and he agreed to purchase the same for a total sale consideration of Rs.10,00,000/ and he accepted the offer of the original landlady and that the terms and conditions were reduced into writing as agreement for sale and on the same day he paid Rs.4,00,000/ towards earnest sale 11 consideration amount under a receipt. That all the receipts and agreement of sale was executed by the landlady in the presence of witnesses who attested the receipt and agreement of sale. That as the landlady failed to perform her part of contract he filed a civil suit vide O.S. No.1463 of 2012 seeking specific performance of agreement of sale by giving prior notice to her and that the landlady received monthly rents upto November 2012 and thereafter deliberately the first petitionerlandlady failed to receive the rents and since December 2012 he has been depositing the monthly rents to the credit of R.C. as per the directions of the Rent Controller.
Thus RW1 is not a defaulter in payment of monthly rents.
13.Since the tenant, interalia, claimed that in view of surrender of lease by virtue of agreement of sale between lessor and lessee, there is no jural relationship of landlady and tenant between the parties and such relationship ceases to exist once an agreement of sale is materialized between the parties, it is just and appropriate to address the primary issue of jural relationship, surrender of lease and wilful default in payment of monthly rents.
JURAL RELATIONSHIP + SURRENDER OF LEASE:
14.The learned counsel for the appellantslandlords have relied on the following two decisions reported in
1. Nandinampati Lakshmi Narsimha Rao vs. Srikonda Veera Raghavamma 2000 (2) RCR (AP) 256.
2. M.Narhari Rao vs. Master Chaitanya 1994 (2) An.W.R. 65 12 and vehemently contended that the term 'sale' and 'lease' being two different and distinct rights there cannot be any novation of a smaller relief in the in the larger relief and the jural relationship of landlord and tenant cannot be put an end to by the transaction of a contract of sale, in the absence of a regular conveyance of the property. Even in the presence of agreement of sale, unless it is culminated into a transaction of a regular registered sale deed, thereby putting an end to the jural relationship of landlord and tenant and till such finalization of the sale deed the tenant is liable to pay the rents unless there is a contract to the contrary. Further it is also canvassed by the landlords that the jural relationship of landlords and tenant continues to exists in spite of execution an agreement of sale between the parties and the learned Rent Controller has subject matter jurisdiction to entertain the eviction application.
15.On the other hand, the learned counsel for the tenant relied on a decision reported in R.KANTHIMATHI VS. MRS.
BEATRICE XAVIER AIR 2003 SUPREME COURT 4149 and contended that any jural relationship between two competent persons could be created through an agreement and similarly such relationship would be changed through an agreement subject to limitations under the Law. It is also urged that since the landlords in this case executed agreement of saleEx.R1, dated 26.7.2004 the relationship of landlords and tenant ceases to exist once the said 13 agreement of sale is materialized between the parties and portion of sale consideration amount is paid and accepted by the landlady.
16.Before adverting to the evidence adduced by both the parties in order to answer the controversy it is essential to have a quick look to the terms and conditions of agreement of sale, as it is the case of the landlords right from the beginning and that they have denied Ex.R1 agreement of sale, dated 26.7.2004 in toto.
Even assuming for the sake of arguments, Ex.R1agreement for sale is true, genuine document, its terms and conditions include
As per clause (1) of Ex.R1agreement for sale, dated 26.7.2004 the tenant paid a sum of Rs.4,00,000/ towards advance sale consideration amount and the tenant also agreed to pay the balance of sale consideration amount of
Rs.6,00,000/ within 10 years and the time is essence of the contract.
It is also one of the terms and conditions mentioned in agreement of sale that on receipt of balance of sale consideration amount of Rs.6,00,000/ vendor agreed to execute a registered sale deed failing which the vendee is at liberty to move the Civil Court seeking specific performance of agreement of sale.
17.A careful perusal and reading of Ex.R1 agreement for sale, dated 26.7.2004 it is a crystal clear that there is no covenant materialized between the parties and incorporated in the agreement that from the date of agreement there is surrender of lease by 14 consent and that the jural relationship of landlords and tenant ceased to exist and thus prima facie the facts and circumstances of the instant matter are quite different than that of the decision relied on by the learned counsel for the tenant and even assuming for the sake of arguments Ex.R1 was materialized between the parties with the same terms and conditions, by virtue of it only since the sale transaction is not made final culminated into a registered sale deed, the jural relationship of landlords and tenant subsists between the parties and especially the time is the essence of the contract and when the tenant was offered a clear 10 years time to repay the balance sale consideration amount it is needless to say that the tenant is liable to pay the monthly rents till the sale transaction is finalized and culminated into a registered sale deed by executing registered sale deed after receipt of balance of sale consideration amount of Rs.6,00,00/. Of course, within 10 years the tenant filed the said suit seeking specific performance of agreement of sale and the same was decreed after disposal of the R.C. and the matter is subjudice in the Appellate Court. Of course, even it is never the defence of the tenant that by virtue of Ex.R1 agreement of sale there is surrender of lease and the jural relationship of landlords and tenant cease to exist and the jural relationship of vendor and vendee created under the agreement and that it is one of the agreed terms that the tenant is not liable to pay the rents from the date of agreement.
15
18.Adding to the aforesaid legal propositions, contractual obligation, specific terms and conditions of Ex.R1agreement for sale, certain beneficial points have been elicited from the cross examination of the tenant as RW1 which are also substantiating in crystal clear terms that there the jural relationship of landlord and tenant not ceased to exist by the date of Ex.R1agreement for sale and that there is no surrender of lease by consent between the parties. In the cross examination, dated 20.10.2016 RW2 admitted in categorical terms that there is no recital in Ex.R1agreement of sale that the tenant need not pay the rents in respect of the PSP to the landlords after execution of the said agreement of sale. He also admitted that there is no mention in Ex.R1 with reference to the payment of rents to the demised premises. RW1 further stated that he paid the rents even after filing of the eviction application to the landlords. RW1 also claimed that he paid the monthly rents from
August 2010 to August 2012 to the first landladyM.Yasadha, but he has no documentary evidence to establish the same. In the same cross examination RW1 further admitted that even after filing of the suit seeking specific performance of agreement of sale, first petitioner has collected monthly rents from August 2012 to
November 2012. There is no rental agreement executed between the parties on 6.5.2001.
19.Even from the cross examination, dated 20.11.2014 of
PW1 the tenant has got elicited that himself and his brother 16
M.Prakash, 3rd petitioner have been collecting the rents from the tenant as per their convenience and it postulates without any doubt and hesitation that even after Ex.R1 the tenant has been paying the rents to the landlords. Even assuming for the sake of arguments that the entire terms and conditions as mentioned in
Ex.R1agreement for sale have been settled in toto the question of jural relationship of landlords and tenant ceased to exist does not arise as according to the tenant 10 years time has been granted to repay the balance of sale consideration amount of Rs.6,00,000/ and after receiving the balance of sale consideration amount only the vendor promised to execute a registered sale deed in respect of the PSP and therefore Ex.R1 is best mute witness and document to record findings that legally there is no surrender of lease even after execution of Ex.R1agreement of sale and the jural relationship of landlords and tenant continues.
20.In this case it is also significant to note that these contentions have been raised for the first time in this Appellate
Court as right from the beginning it is the case of the tenant even in the counter filed that even after execution of Ex.R1 the tenant has been paying the rents regularly to the original landladyM.Yashoda without default and therefore now it is not open to the tenant to invoke the plea of surrender of lease.
17
WILFUL DEFAULT IN PAYMENT OF MONTHLY RENTS +
QUANTUM OF RENT:
21.Though the parties have raised dispute as regards to the quantum of monthly rents as on the date of filing of the R.C., as according to the landlords it is at Rs.3,000/ per month, whereas according to the tenant it is Rs.500/ per month but the learned
Rent Controller though negatived the ground of wilful default in payment of monthly rents by misplacing the burden of proof upon the landlords but has not chosen to answer the quantum of rent dispute and since the evidence on behalf of both the parties is at large it is inevitable for this Court to decide the said dispute also incidentally. Right from the beginning it is the case of the landlords that the monthly rent is at Rs.3000/ but the tenant right from the counter constantly contended that the monthly rent is only
Rs.500/ as on the date of filing of the R.C.
22.RW1, interalia, stated that he obtained the PSP on 6.5.2001 on oral lease on a monthly rent of Rs.500/ and at the time of inception of tenancy he paid Rs.2,00,000/ towards advance under Ex.R2receipt, dt.6.5.2001. Prima facie, when the monthly rent is at Rs.500/ at the time of inception of tenancy on 6.5.2001 the same rent would not continue even after lapse of 11 years ie., by the date of filing of the R.C. in the year 2012 and therefore the bald denial of quantum of rent raised by the tenant is without any basis and reasoning. Even in Ex.R1agreement of sale there is no whisper as regards to the quantum of rent as on the date of 18 execution of agreement of sale, dt. 26.7.2004. In the cross examination, dated 20.10.2016 RW1 deposed and admitted that he has got evidence to show that he has been intimating to the landlords about the deposit of rents into the Court but he has not chosen to file the same. In the same cross examination he also admitted that after filing of the suit for specific performance of agreement for sale the original landladyfirst petitioner also collected the rents for the period from August 2012 to November 2012 but he has not chosen to file any document or rental receipt. When there is no love and cordiality between the parties and especially when the tenant has instituted a civil suit seeking specific performance of agreement for sale which was totally denied by the landlords no ordinary, reasonable, prudent person would pay the rent without obtaining any rental receipts. Even in Ex.R4legal notice, dated 2.2.2012 got issued by the tenant to the original landlady first petitioner but the tenant has not chosen to whisper that the monthly rent is only Rs.500/ as on the date of Ex.R4. Thus it can be said without any doubt and hesitation that the tenant failed to establish that the same monthly rent of Rs.500/ continued even after lapse of 11 years and as on the date of filing of the R.C.
application.
23.Insofaras the ground of wilful default in payment of monthly rents urged by the landlords is concerned PW1 stated that the tenant is irregular in payment of monthly rents to the landlords, 19 that the tenant has last paid the rent for the month of July 2010 to the first landlady's son M.Prakash (3rd petitioner before the Rent
Controller) and he has passed rent receipt to the tenant and thereafter the tenant committed wilful default in payment of monthly rents from August 2010 to August 2012 ie., 25 months amounting to Rs.75,000/. PW1 stated that the tenant has not paid the rents even after several requests and demands made by the landlords and there is supine indifference on the part of the tenant in withholding the rents paid to the petitioners. That apart the tenant has not paid even the municipal taxes for the last 1 1/2 (one and half ) years and also committed default in payment of electricity consumption charges amounting to Rs.4,000/ and thereby the tenant is liable to be evicted from the demised premises.
24.On the other hand, RW1 stated in his affidavit that the monthly rent is only Rs.500/ since the time of inception of the tenancy, that there is no agreement to pay the municipal taxes by the tenant, that there is no practice of passing rental receipts by the landlords, that the first landladyM.Yashoda received the rents upto
November 2012 and thereafter failed to receive the rents and so he is depositing the rents to the credit of R.C. from December 2012 in view of the directions passed by the Rent Controller. Therefore, prima facie, the tenant has not denied specifically that he has not paid the rents for the months from August 2010 to August 2012 for 25 months amounting to Rs.75,000/ at the rate of Rs.3000/ per 20 month in the chief affidavit. Therefore except making a bald statement in the affidavit that he had paid the rents upto November 2012 there is no piece of paper or document including the rental receipt issued by the landlords in discharging the burden that he has not committed wilful default in payment of monthly rents.
Adding to the above, in the cross examination, dt. 28.9.2016 at page
No.5 though he has taken a plea that he paid monthly rents every month but he is not able to say the last date of payment of rent in respect of the demised premises to the landlords and whether among the petitioners No.1 to 3 who received the monthly rents. He also admitted in the same cross examination that he paid rent for the month of June 2010 to the first petitionerlandlady but he do not remember to whom he paid the rents after July 2010. The aforesaid admissions prima facie indicating that even after Ex.R1 agreement for sale, dt. 26.7.2004 the tenant is continuing to pay the rents even during the substance of the landlords and tenant jural relationship between the parties in respect of the PSP and he claimed that he paid rent for the month of June 2010 to the first petitioneroriginal landladyM.Yeshoda. When the tenant is not able to specifically assert and prove that to whom he paid the rents from
July 2010 burden heavily lies upon the tenant to establish that he has not committed wilful default in payment of monthly rents from
August 2010 to August 2012 for 25 months and the learned Rent
Controller having misplaced the burden of proof upon the landlords 21 erroneously recorded the findings against the landlords and therefore the findings are against to the doctrine of burden of proof.
25.In the same cross examination, dt. 28.9.2016 at page
No.5 RW1 taken a contradictory plea and stated that according to him after Ex.R1agreement for sale he did not pay the rents to the landlords. Further he volunteered and stated that even after filing the R.C. he did not pay rents, that even after filing the suit for specific performance of agreement for sale he did not pay the rents but he has paid the rents into Court. The aforesaid specific admissions are enough to safely conclude that the tenant committed chronic wilful default in payment of monthly rents from August 2010 to August 2012 amounting to Rs.75,000/ at the rate of
Rs.3000/ per month. In the same page No.5 of the cross examination RW1 simply pleaded ignorance by stating that he do not remember to whom he paid the rents after July 2010 which is selfcontradicting his own admissions made immediately after two or three lines in the same page.
26.The tenant as RW1 in the cross examination, dt.20.10.2016 at page No.6 further taken a selfcontradictory plea that he paid the rents from August 2010 to August 2012 to the first petitionerM.Yashoda while admitting that he has no piece of paper or documentary evidence to establish that he paid the rents for the default period to the first petitioner. Further he has stated that 22 from August 2010 till the date of filing of the eviction application by the landlords there was cordial relationship between the landlords and if it is so if really the tenant has paid the monthly rents during the default period alleged he must be in a position to obtain rental receipt from the landlords and produce the same before the Court in order to discharge the burden in establishing that he has not committed wilful default in payment of monthly rents for 25 months. Therefore the plea raised by the tenant that he paid the rents upto November 2012 to the first landlordM.Yashoda remained not established.
27.It is also not out of the place and significant to note that post R.C. proceedings and post Appeal proceedings the tenant has not chosen to pay the rents and the tenant has not bothered to pay the monthly rents and in view of the controversy and dispute raised by the parties as regards to the quantum of rent the burden lies upon the tenant to obtain necessary orders from the Rent Controller to deposit the rents and therefore even post proceedings the tenant committed chronic wilful default in payment of monthly rents and the very action of the tenant in depositing the arrears of rents upto
August 2019 by way of challan No.79387, dt. 21.8.2019 at the rate of Rs.500/ per month towards monthly rents in R.C. No.314 of 2012 itself constitutes supine indifference on the part of the tenant in payment of monthly rents and he is liable to be evicted from the
PSP on this ground also. It is needless to say that the tenant can 23 only claim landlordship or ownership after the judgment in the civil suit has become final and after execution of regular registered sale deed either by the landlords or by due process of law. It is also needless to say that the deposit of rent at Rs.500/ per month also constitutes tender of incorrect rents and tendering incorrect rents or lesser rent the quantum of rent decided also amounts to wilful default in payment of monthly rents.
28.Insofaras the payment of electricity consumption charges right from the beginning it is the case of the landlords that there are dues of Rs.4,000/ towards electricity consumption charges as on the date of filing of the R.C. application and the tenant committed wilful default in payment of the same. First of all there is no denial in the chief affidavit of RW1 about nonpayment of electricity consumption charges amounting to Rs.4,000/ and his affidavit is silent. Therefore prima facie, the allegation remained uncontroverted.
29.From the cross examination of PW1, dated 20.11.2014 it was elicited by the tenant that the tenants are paying the electricity consumption charges for their respective portions and the instant tenant is not regularly paying the electricity consumption charges.
Even the Electricity Department Officials informed to the landlords that the tenant is not regular in payment of electricity consumption charges.
24
30.Adding to the above, in the cross examination, dt.
20.10.2016 at page No.8 the tenant as RW1 in categorical terms admitted that there is a separate electricity meter connection to the
PSP and he has stated that he has paid the electricity consumption charges in respect of the demised premises from January 2012 to
September 2012 but he has not chosen to file any electricity consumption charges payment bills although he admitted that he is prepared to produce the electricity bills from January 2012 to
September 2012 into the Court. Even to counter the allegation that the tenant committed the act of ceased to occupy the premises for the last more than four months by the date of filing of the application by keeping the shop under lock and key and without carrying any business, the tenant has not chosen to file the required electricity consumption charges bills to establish that he has not committed the act of ceased to occupy the premises. The aforesaid nondenial by the tenant and the admissions made by him in the cross examination clearly indicating that the monthly rent is exclusive of payment of electricity consumption charges and in respect of payment of electricity consumption charges burden lies upon the tenant to prove the same and having admitted that he has documentary evidence, he withheld the material documents and therefore once again the learned Rent Controller erroneously recorded the findings but it is the burden of the landlord to establish that the electricity consumption charges are not paid by the tenant and therefore the findings recorded by the learned Rent 25
Controller in this regard also are liable to be reversed in the interests of justice.
31.Coming to the nonpayment of municipal taxes for the
PSP it is the plea of the tenant that there is no privity of contract, that there are no negotiations, agreed terms and conditions to pay the property taxes by the tenant. Whereas it is the grievance of the landlords that the tenant committed default in payment of property taxes for the past 1 1/2 years as on the date of filing of the R.C.
application. In this regard it is just and appropriate to have a quick look to the contents of the counter filed by the tenant on 4.1.2013 vide SR No.79/2013 wherein at page No.3 unnumbered para No.2, he has admitted that the monthly rent is exclusive of municipal taxes and the landlady used to collect the municipal taxes at the end of the every year and she used to pay the property taxes in respect of the PSP. Therefore in the chief affidavit of RW1 for the first time the tenant has denied that there is no privity of contract to pay the municipal property taxes in respect of the PSP and therefore the denial is against to the pleadings and the pleadings prevails over the subsequent denial made with mala fide intention. Now it is not open to the tenant to go back from the averments of the counter and retrieve the admissions made by him in the counter. Thus the burden again lies upon the tenant to prove that he has paid the property taxes every year to the landlady under due receipt but the tenant has not produced any piece of paper or document to show 26 that he has complied with the statutory obligation of payment of property taxes. The said admissions made by the tenant in his counter also leads to the preponderance of probabilities as the building consists of ground + two upper floors and in the first and second floors both the second and third petitionerslandlords are residing in the building and therefore it is for the landlord to collect the property taxes in respect of the PSP at the end of the year and make a comprehensive payment to the concerned Municipal
Corporation. Thus the trial Court once again misplaced the burden of proof upon the landlords and for the reasons best known to the tenant he has withheld all the material documents viz., electricity payment charges bills and property tax payment receipts and therefore the tenant is liable to be evicted even on the ground of wilful default in payment of monthly rents, electricity consumption charges and the property taxes as rightly alleged by the landlords.
CEASED TO OCCUPY THE PSP BY THE TENANT:
32.In view of the specific allegation made by the landlords about the ceased to occupy of the premises for the past more than four months, burden lies upon the tenant to prove that he has not committed the act of ceased to occupy the PSP. As already discussed in the point of wilful default in payment of monthly rents etc., RW1 not only withheld the electricity consumption charges bill and the property taxes and therefore even this allegation also remained uncontroverted. No explanation was offered by the tenant 27 for withholding the electricity payment charges bills for the relevant period especially six months prior to the filing of the R.C.
application. Even it is the case of the tenant that he has renewed the licence for the PSP shop but he has not produced the same.
Therefore except a bald denial that he has not committed the act of ceased to occupy there is no reliable and positive evidence produced by the tenant to answer the allegation.
33.Last but not least is that even the tenant has not chosen to file any purchase or sales bills to show that he has transacted sufficient business during the relevant period. Further it is the specific case of the landlords that the tenant has shifted his business to the shop bearing No.52552, Urdu Galli, Troop Bazar,
Hyderabad, and has been carrying on electrical business in the said shop and thereby he has committed the act of ceased to occupy the premises for the past more than four months prior to the filing of the R.C. application. When the same was confronted by RW1 in the cross examination, dated 20.10.2016 at page No.9 he simply pleaded ignorance by stating that he do not know who is the owner of the shop No.51552, Urdu Galli, Troop Bazar, Hyderabad, and even he has not mentioned in the counter that he is not the owner of the said shop. Thus even there is no specific denial or assertion by the tenant that he is not carrying on business in the said shop at
Urdu Galli, Troop Bazar, Hyderabad. As already stated though he has documentary evidence to show that PSP shop was not kept 28 under lock and key without carrying any business during the period from January 2012 to September 2012 but he has withheld the same including the electricity consumption charges bills, renewal of trade licence, municipal tax payment receipts, business vouchers and sales receipts to show that he has transacted the business during the relevant period. Thus the tenant has withheld the material documents without any sufficient and valid reasons and therefore an adverse inference has to be drawn against the tenant and the findings recorded by the learned Rent Controller are not on correct lines and contrary to the oral and documentary evidence available on record. Further even in this regard also the Court below misplaced the burden of proof upon the landlords. Therefore even the findings recorded by the trial Court in this regard are to be reversed.
PERSONAL REQUIREMENT + UNDER SECTION 10C OF THE ACT:
34.Right from the beginning it is the case of the original landlady and the two sons of original landladypetitioners No. 2 and 3 that first petitioneroriginal landlady invoked the provisions under
Section 10C of the Act being widow and senior citizen and she requires the PSP for her and for her family members especially for establishing business by the third landlordthird petitioner
M.Prakash as he intends to commence tailoring business in the
PSP. It is also the case of the original landlady and her two sons 29 petitioners No. 2 and 3 are residing with her. PW1 deposed in tune with the pleadings it is also urged by the landlords before the learned Rent Controller that even after the death of original landladyfirst petitionerM.Yashoda the personal requirement sought for by the petitioners survives, it is sincere, bona fide and on the death of the original landlady the ground is not lapsed. In this regard even from the cross examination of PW1 some more beneficial points have been elicited by the tenant which are amply lending support to the case of the landlords. In the cross examination, dt. 26.11.2014 PW1 categorically stated that the third landlordM.Prakash used to do tailoring business and at present he has no occupation. Further it was elicited by the tenant for the past four or five years PW1 and his mother desired the PSP for the purpose of commencing business by third landlordthird petitioner
M.Prakash. As usual the case of the tenant is one of simple denial and that the third landlrodM.Prakash does not require the PSP to commence the tailing business.
35.Further from the cross examination of RW1, dt.
20.10.2016 at page No.10 that both the second and third landlords being the sons of the original landladyM.Yashoda are residing in the same house and tenant simply pleaded ignorance by stating that he is not aware whether eviction application was filed by the original landlady including for the ground it is required by her for commencing tailoring business by her second sonM.Prakash.
30
Therefore, the tenant is not denying personal requirement sought for by the landlords even during the life time of the original landlady. Because during the pendency of the R.C. the original landladyM.Yashoda died so it is not open to the L.Rs. to invoke the provisions under Section 10C of the Act for immediate recovery of possession of the PSP but still the personal requirement plea survives as it is the case of the petitioners right from the beginning that they require the PSP for commencing the tailoring business by third landlord Prakash and the said plea, oral and documentary evidence produced by the landlords is not controverted by the landlords in any manner and thus the Court below grossly erred in recording the findings against the landlords in this regard also and as such it warrants interference by this Court to uphold the principles of equity, justice and good conscience.
36.In this case it is also significant and note that very residence of the second and third landlords in the first and second floor of the PSP building itself signifies that the PSP is convenient, suitable for commencing the business by the third landlord
M.Prakash and therefore freedom of choice exercised by the landlords cannot be find fault and in this regard the tenant has no say or dictate any terms to the landlords. Even there is no evidence produced by the tenant to show that the third landlordM.Praaksh is also doing tailoring business in the residential portion at second floor and admittedly no Commissioner was taken out by the tenant 31 to establish the same and to note down the physical features of the second floor of the PSP building. Thus the trial Court grossly erred in recording findings that the personal requirement sought for by the landlords has been lapsed and defeated by the death of original landladyM.Yashoda and it is needless to say that the death of original landlady only leads to the consequence that the L.Rs. of original landlady who are second and third petitioners cannot invoke the provisions under Section 10C of the Act, does not automatically lapse the personal requirement plea sought for by the landlords and it still survives in favour of the landlords.
Accordingly, the appellantslandlords are entitled to the orders of eviction on all the grounds including wilful default in payment of monthly rents, ceased to occupy the premises, personal requirement and so long as regular registered sale deed is executed in favour of the tenant by due process of law the tenant is bound to pay the monthly rents at Rs.3,000/.
37.The learned counsel for the appellantslandlords relied on the following decisions reported in
1. Raj Kumar Sharma vs. Smt. Ratten Devi 2000 (1) RLR 631
2. Shantilal Thakordas vs. Chimanlal Maganlal Telwala 1976 AIRCJ 811
3. Kamleshwar Prasad vs. Pradumanju Agarwal (dead) by LRs. 1997(1) RCR 591.
4. S.Lachman Singh vs. S.Satnam Singh 2011 (1) ALT 242 and contended that in respect of plea of ceased to occupy the premises by the tenant and when the tenant has admitted that 32 there is sufficient evidence including documentary evidence withholding the material documents like electricity payment charges bills, purchase and sales bills to establish about transaction of business during the said period is sufficient to order eviction on the ground of ceased to occupy the premises.
38.It is further urged that in case of personal requirement sought for by the landlady and her family members on account of death of original landlady during the pendency of the application still right to sue survives the case by the landlords and can agitate the personal requirement plea sought for. Having regard to the facts and circumstances of the instant appeal and various admissions made by the tenant it can be said without any doubt and hesitation that the legal principles enunciated in the aforesaid decisions squarely applies to the facts of the case and the landlords have established and made out a valid grounds to allow the appeal and consequently order eviction of the tenant. Therefore following the principles laid down in the said decisions the point is answered in favour of the appellantslandlords.
POINT NO.2 RESULT & COSTS:
39.In the result, R.C.A No.74 of 2017 is allowed with costs quantified at Rs.10,000/ payable by the tenant to the landlords under Section 21 of the Act by setting aside the impugned orders,
dated 21.2.2017 passed in R.C. No.314 of 2012 on the file of the I
33
Additional Rent Controller, City Small Causes Court, Hyderabad,
and consequently the R.C. No.314 of 2012 is allowed and the eviction is ordered on all the grounds urged.
However to meet both ends of justice, two months time is granted to the respondenttenant to vacate the PSP, deliver peaceful and vacant possession of the same to the appellantslandlords intact under Section 20(3) explanation of the Act, failing which the landlords are at liberty to get the tenant evicted by due process of law and recover the expenses incurred thereon from the tenant.
Dictated to the Stenographer, after his transcription, corrected and pronounced by me in
the open Court on this the 17th day of October, 2019.
ADDITIONAL CHIEF JUDGE (FAC)
CITY SMALL CAUSES COURT,
HYDERABAD.
Appendix of Evidence Documents marked on behalf of the tenant in Appeal
Ex.R6:Certified copy of the judgment, dated 25.9.2018 passed in O.S. No.1463 of 2012 on the file of the Addl. Judge cumVI Sr. Civil Judge, City Small Causes Court, Hyderabad, filed by the tenantMohd. Zafaruddin Siddique against the landlords seeking specific performance of agreement of sale, dt.26.7.2004 in respect of the property bearing No.41631, ground floor in portion of H.No.41631, Near Nursing Lodge, Troop Bazar, Hindustan Galli, Hyderabad.
Ex.R7:Certified copy of the Decree in O.S. No.1463 of 2012,
dt. 25.9.2018 on the file of the Additional Judgecum
VI Senior Civil Judge, City Small Causes Court, Hyderabad.
ADDITIONAL CHIEF JUDGE (FAC)
CITY SMALL CAUSES COURT,
HYDERABAD.
c&v:sarma