Smt V.B. Nirmala Geethamba

1 RCA.24 of 2023

IN THE COURT OF THE ADDITIONAL CHIEF JUDGE: CITY SMALL

CAUSES COURT: AT HYDERABAD.

Dated this the 12 th Day of MARCH 2024.

Present: Smt. V.B. NIRMALA GEETHAMBA

CHIEF JUDGE

(F.A.C.) ADDITIONAL CHIEF JUDGE.

R.C.A. No. 24 OF 2023

Between

Sampathlal Mahender Kumar, S/o. Late D. Sampathlal, aged about 50 years, Occ: Business, R/o. H.No.321, Lal Bazaar, Tirumalgherry Bazaar, Secunderabad-15. .… Appellant AND

Jakkula Srinivas, S/o. J. Lakshmaiah, aged about 50 years, Occ: Private Service, R/o. H.No.219, Lal Bazaar, Tirumalgherry Bazaar, Secunderabad – 15(TS).

... respondent

Appeal against the order dated 27-07-2023 in R.C. No.5 of 2021 on

the Additional Rent Controller file, City Small Causes Court,

Secunderabad.

Between:

Mr. Sampathlal Mahender Kumar… Petitioner

And

Mr. Jakkula Srinivas.. Respondent.

This Appeal was listed before me for final hearing in the 2 RCA.24 of 2023 presence of Sri R.A. Achuthanand, Advocate for the Appellant and Sri J.Jeevan Babu, Advocate for Respondent and having been stood over the matter for consideration till this day; this Court delivered the following:

J U D G M E N T

The unsuccessful petitioner applied the present Appeal under section 20(1) of Telangana Buildings (Lease, Rent & Eviction)

Control Act, 1960 [from now on be referred to as "Act of 1960" wherever necessary "in short"], regarding the premises consisting of two rooms in the ground floor of the H.No.219 situated in Lal Bazar,

Trimulgherry, Secunderabad (from now onwards referred as 'petition scheduled premises' wherever necessary) against the impugned dismissal order passed by the learned Additional Rent Controller, City

Small Causes Court, Secunderabad, in R.C. No.5 of 2021 dated 27.07.2023, on several grounds.

BREVITY OF PLEADINGS:

2.The petitioner is the landlord, and the respondent is the tenant of the petition scheduled premises. Initially, the respondent's father was inducted into the petition scheduled premise, and after his death, the respondent continued the tenancy by operation of law. The 3 RCA.24 of 2023 respondent agreed to enhance the rent @ Rs.1500/- per month, effective January 2019, but failed to pay and became a chronic defaulter from January 2019 onwards. There was an exchange of legal notices between the parties, and the respondent failed to pay the arrears of Rs. 36,000/- from January 2019 onwards. Hence, the petition.

3.The Respondent filed a counter and denied all the material allegations made in the petition. He further submitted that there is no dispute about the jural relationship between the petitioner and respondent as landlord and tenant. There is no dispute regarding the extent of the petition scheduled premises under his occupation. He further submitted that the rent for the scheduled premises is Rs.300/- per month, but not Rs.1500/- per month, as alleged by the petitioner.

He further submitted that he never committed a willful default in the payment of rent, as alleged by the petitioner, and there is no enhancement in the payment of rent. He further submitted that the petition-scheduled premises had no electricity or water connection. He further submitted that the petitioner refused to receive rent sent by money order with a mala fide intention and has stopped issuing rent receipts because of the prevailing coronavirus pandemic. He further 4 RCA.24 of 2023 submitted that he has paid the rent @ Rs.300/- per month to October 2020 and has not committed any wilful default as alleged by the petitioner. Hence, pray to dismiss the petition.

4. the petitioner was examined as PW-1 and marked Exs during the enquiry. P-1 to P-3. To rebut the petitioner's evidence, the respondent was examined as RW-1 and marked Exs.R.1 to R.18.

5.Upon considering the rival contentions and perusing the evidence on record, the learned Rent Controller dismissed the petition without costs.

6.Aggrieved by the dismissal order passed by the Additional

Rent Controller, City Small Causes Court, Secunderabad, the petitioner preferred the present Appeal on several grounds.

7.Both counsels were present and heard.

8. Upon considering the rival contentions perusing the material available on record, the points that arise for determination

before this Court are as follows:

5 RCA.24 of 2023

1) Is the petition maintainable for non-joinder of other co-owners of the petition scheduled premises?

2) Is there sufficient evidence on record to establish that the respondent has committed wilful default in payment of rent from January 2019 to 25.1.2021 as of the date of filing the eviction petition? If so,

3) What relief?

9.Admitted Facts:-

1.The petitioner is the landlord of the proposed premises, and the respondent is the tenant.

2.There is no dispute regarding the jural relationship and the identification of the petition scheduled premises.

3.It is admitted that as per the averments of the counter, the respondent did not plead that the petition is liable to be dismissed on the ground of non-joinder of the necessary parties, i.e., co-owners/co- sharers of the petition scheduled premises.

POINT NO.1 – Non-joinder of co-owners: Submissions of counsel for petitioner:

10.The specific contention of the petitioner is that there is no necessary to join other co-owners/co-sharers as parties to the present petition, and he is entitled to seek eviction of the respondent from the petition scheduled premises as there is no dispute regarding the jural relationship between the petitioner and respondent as landlord and tenant. He further argued that there are no such pleadings in the 6 RCA.24 of 2023 counter filed by the respondent that the petitioner has not added the other co-owners as parties to the present proceedings and that the petition is liable to be dismissed on the alleged ground. The Rent

Controller, without considering the pleadings of the respondent, answered the issue and any admissions made by PW-1 regarding non- joinder of co-owners/co-sharers cannot be considered evidence, and there is no evidentiary value regarding such admissions without pleadings of the respondent in his counter. Hence, please pray that the impugned order passed by the Rent Controller will be set aside.

Submissions of counsel for Respondent:

11.The counsel for the respondent argued that the petitioner fails to add co-owners/co-sharers as parties to the present proceedings, he, alone, is not entitled to get possession of the scheduled premises from the respondent and that the petition is not maintainable and relied on the findings of the trial court. He relied on the following decisions:

1) Vasanth Rao Ankilkar vs. Nalini Bai Joshi reported in 1996 (2) APLJ 245 (H.C.) = 1996 (3) ALT 507.

7 RCA.24 of 2023

2) Damodarm Chetti vs. Vungarala Rukmaniamma and another reported in 1967 (1) A.L.T. 25 (N.R.C.).

Appreciation of evidence on record:

12.Being the first appellate Court, this Court is inclined to appreciate the evidence on record afresh.

13.There is no dispute regarding the jural relationship between the petitioner and respondent as landlord and tenant, and the petitioner squarely comes under the definition of "landlord" as defined under Section 2(vi) of the Act of 1960.

14.The petitioner's counsel relied on a decision in Vasant Rao

Ankilkar vs. Nalini Bai Joshi. 1 Reported in 1996 (3) ALT 507 = 1996 (2)

APLJ 245, where the Hon'ble High Court of Andhra Pradesh held that:

“The Petitioner herein is not a defaulter, and the eviction petition filed by the respondent herein is not maintainable under Section 10(8) of the Act. This section clearly indicates that the Agent cannot file the eviction petition except with the landlord's prior written consent, and in this case, the landlord did not give prior written consent before filing the eviction petition.

Further observed as per Section 10(8) of the Act, which reads as under:

11996 (3) ALT 507 = 1996 (2) APLJ 245 8 RCA.24 of 2023 “Notwithstanding anything in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.””

In this case, the petitioner is not an agent, and he is the landlord of the petition-scheduled premises. There is no dispute regarding the jural relationship between the petitioner and respondent as landlord and tenant, and the respondent paid rent to the petitioner. The respondent admittedly did not plead about the non-joinder of necessary parties, i.e., co-sharers and did not claim that they claimed the rent from him in his counter. Once there is no specific pleading regarding the non-joinder of the necessary parties by the respondent, the evidence adduced in this regard is not admissible in the eye of the law. Thus, Section 10(8) proviso applies to agents and rent collectors appointed by the landlord of the scheduled premises. In this case, the petitioner receives rent, and the co-owners have no objection. On the other hand, the petitioner successfully established that he is the landlord of the scheduled premises and is entitled to file an eviction petition without other co- owners.

9 RCA.24 of 2023

15.The counsel for the respondent relied on the decision in the case of “Damodaram Chetti Vs. Vungarala Rukmaniamma and

Another” 2reported in 1966 S.C.C. online AP 226, where the Hon’ble

High Court of Andhra Pradesh held that:

“One of the joint owners, or co-owners, can ask for eviction of a tenant who has been let in by both the owners, notwithstanding that the other co-owner or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand, do not want a tenant to be evicted, provided such co-owner or co-owners are made parties to the suit or petition. If this is not the law, cases can be envisaged where one of the co-owners, in collusion with the tenant,t can effect complete" dispossession of the other co-owner by merely getting the tenant to acknowledge his sole possession and title. Where a co-owner is entitled to possession of immovable property in entirety along with the other co-owners, it is not permissible for one of the co-owners, subsequently in league with the tenant, to permit him to have the whole of the premises on behalf of himself alone, which in effect will oust the other co-owners of the possession of the property to which he is of right entitled."

Given the above proposition of law, in this case, the grandfather of the petitioner, namely M.C. Dhanraj, has inducted the father of the respondent by the name of Laxmaiah into the petition scheduled premises as a tenant, and the tenancy is oral, and the rent should be payable from 15th of the month to 14th of the succeeding month. PW1 further admitted that no partition had occurred between his father and his brothers, even today. His father has two elder brothers. He further 2 1966 S.C.C. online AP 226.

10 RCA.24 of 2023 revealed that his father has two sisters, one elder and one younger.

Except that nothing elicited contrary to the record to establish that the petitioner and his brother let out the petition scheduled premises, and

PW-1 never collected the rent from the respondent. Even the respondent has not pleaded anything in his counter that there are other co-owners regarding the scheduled premises and claimed the rent from him and that the petitioner is not entitled to receive rent from him as there was a dispute regarding ownership of the petition scheduled premises. It is not the case for the respondent that other co-owners demanded that he pay rent to them instead of paying the same to the petitioner. Therefore, the above-said decision does not apply to the present facts of the case.

16.As per the decision in the case of “Sugui Bai @ Shakuntala

Bai Vs. Rafat Ali” 3 reported in 1998 (1) ALD 693 (698), wherein the

Hon’ble High Court of Andhra Pradesh Held that:

“Tenant recognizing petitioner-landlady as a landlord by tendering rents, he cannot be heard to say that the other co- owners have not been impleaded in the eviction petition and therefore the petition is not maintainable." 31998 (1) ALD 693 (698) 11 RCA.24 of 2023 The above-said case is squarely applicable to the present facts of the case. In this case, the respondent admitted that the petitioner is the landlord of the petition scheduled premises, that there is a mutual relationship between him and the petitioner as tenant and landlord and that he paid rent to the petitioner after his father's death. Once the respondent admitted that the petitioner is a landlord, there is no necessity to add other co-owners as parties to the present proceedings, and he cannot raise such dispute without any pleadings, and he was estopped under Section 116 of the Indian Evidence Act.

17.As per the decision in the case of “P. Kanti Vs. Boddu

Paidanna @ Rambabu”4 reported in 1998 (4) ALD 318, where the

Hon’ble High Court of Andhra Pradesh held that:

“There being no clash of interest among co-owners, the consent of co-owners can be implicit and therefore the eviction petition filed by a co-owner cannot be said to be not maintainable on the ground of not impleading other co-owners.”

The above-said decision is squarely applicable to the facts of the present case. In this case, the co-owners did not come forward to deny the petitioner's right against the respondent, did not deny the eviction petition filed by the petitioner, and did not come forward to contest the 4 1998 (4) ALD 318 12 RCA.24 of 2023 case. Given the above proposition of law, in this case, the non-joinder of other co-owners as parties to the present proceedings is not fatal as the petitioner is the landlord of the proposed premises and is entitled to file an eviction petition against the respondent. In the above-said circumstances and facts of the case, the decisions relied on the respondent's counsel, which did not apply to the present case facts. In the above circumstances, this Court safely concluded that the petition was maintainable even without adding the other co-owners as parties to the proceedings. The learned Rent Controller did not consider the subsequent decisions of the Hon'ble High Court, facts of the case and evidence on record and erroneously dismissed the eviction petition.

Thus, the same can be set aside on this ground alone. Without answering the issues raised by the petitioner, the learned Rent

Controller erroneously answered only one point regarding the non- joinder of necessary parties and dismissed the petition erroneously on this ground. Hence, the finding of the Rent Controller here is set aside.

This point is answered accordingly in favour of the petitioner and against the respondent.

13 RCA.24 of 2023 POINT No.2 – Wilful default:

Submissions of Counsel for Petitioner:-

18.The counsel for the petitioner argued that the respondent denied the jural relationship between the petitioner and respondent, and the trial court, without answering the issue raised by the petitioner, dismissed the petition without proper appreciation of evidence on record. He further argued that the respondent, without any pleadings, argued that the petition is not maintainable in a non-joinder of necessary parties, i.e., other co-owners of the petition scheduled premises. He further argued that as per the admissions of RW-1, he paid the rent to the petitioner. Thus, the petitioner squarely comes under the definition of the landlord under Section 2 (vi) of the Act of 1960. He further argued that the respondent did not send the rent through a money order before filing the eviction petition, and the documents filed under Exs.R1 to R18 were sent after the filing of the eviction petition shall not be considered that the tenant not committed any wilful default in payment of rent during the default period. He further argued that the respondent had not filed any petition on refusal of money order by the petitioner either under Section 8(5) or under Section 9(3) of the Act of 1960 to show his bona fides to establish that there was a 14 RCA.24 of 2023 title dispute between the petitioner and his family members. He further argued that the respondent did not even send the arrears of rent under

Exs.R-1 to R-18, and he was sent the rent as per his whims and fancies for his convenience and committed irregularity in tendering the rent to the petitioner under Exs.R-1 to R-18. He further argued that the burden lies on the respondent to establish that the petitioner did not issue rent receipts even though he paid the rent during the default period due to the pandemic. Without considering the same, the Rent Controller erroneously concluded that the petition is not maintainable due to the non-joinder of other co-owners as parties to the present proceedings.

He further argued that the burden is on the tenant in case of default, and he has to establish that he paid rent up to October 2020. on refusal, he sent the same through a money order from November 2020 onwards, and there is no irregularity. He further argued that the respondent had not produced any document or receipt about the payment of rent during the default period and committed wilful default. Hence, pray to set aside the impugned order passed by the learned Rent Controller and allow the Appeal.

15 RCA.24 of 2023 Submissions of Counsel for the Respondent:

19.The counsel for the respondent argued that he was tendered rent through a money order from November 2020 onwards, and there is no irregularity. He further argued that the rent was paid in

January 2019 to upto October 2020, but no rent receipts were issued due to the pandemic. Hence, pray to dismiss the Appeal.

Appreciation of evidence on record:-

20.The specific admission made by the respondent in his counter in Para 6 of Page 1 that "In reply to the para relationship of landlord and tenant is not disputed and it is also not disputed that the respondent has two rooms in the ground floor House bearing No.219,

Lal Bazar, Secunderabad." Given the admission made by the respondent on his counter, it is clear that the respondent did not dispute the jural relationship between the petitioner and the respondent as landlord and tenant. The only dispute is regarding the quantum of rent. The exchange of legal notices between the petitioner and Respondent under Ex.P1 clearly establishes that the petitioner issued a legal notice

dated 19.12.2020 alleging that the respondent has not paid rent from

January 2019 onwards, and there is an accumulation of arrears of 16 RCA.24 of 2023 Rs.36,000/- and demanded to pay the same. After receipt of the legal notice, the respondent was issued a reply notice, dt.29.12.2020 under

Ex.P2. In the reply notice, he further stated that the petitioner's father has received the agreed rent and has passed a valid receipt. Initially, the rent was Rs.11/- per month, and now it is Rs.300/-. He never agreed to enhance the rent from Rs.300/- to Rs.1500/- per month, as alleged by the petitioner. However, no proof of evidence was filed by the petitioner to establish that the rent for scheduled premises is Rs.1500/- per month as of the filing date of the eviction petition. On the other hand, as per the petitioner, the respondent admitted rent is Rs.300/- p.m. Therefore, the admitted rent as of the date of filing the eviction petition is Rs.300/- p.m.

21.On the other hand, as per the evidence of PW1, the respondent committed default in payment of rent from January 2019 onwards, and there is a practice of issuing rent receipts to the respondent. PW-1 denied the suggestion that he received the rent from

January 2019 to October 2020 and failed to issue rent receipts on the alleged grounds of the pandemic. Once there is a practice of issuing rent receipts, the question of failure to issue rent receipts does not 17 RCA.24 of 2023 arise. The Court can take judicial notice that the coronavirus pandemic started in March 2020. Whereas the default period is from January 2019 onwards. On the other hand, the initial burden lies on the respondent to establish who has not committed a willful default in payment of rent.

22.As per the decision in the case of "E.Vijayachandra Reddy vs Dr. Prasad", 5 reported in 2008 (2) ALD 553, where the Hon’ble High

Court of Andhra Pradesh held that:

“The burden of proving payment of rents is on the tenant and, therefore, the Rent Controller placing the burden on the landlord was improper."

Therefore, given the above proposition of law, the burden of payment of rent is on the respondent to establish that he tendered the rent from

January 2019 onwards to the petitioner @ Rs.300/- per month, i.e., admitted rent as pleaded by the respondent in his counter. To establish the same, he filed Exs.R-1 to R-18, i.e., money orders sent to the petitioner. As per Ex.R-1, he sent a money order to the petitioner on 22.01.2021 for Rs.600/- as the respondent pleaded that he was paid rent up to October 2020. Then again, he sent the rent through a money order on 08.02.2021 for Rs.900/- under Ex.R-2. Then, he sent a money 52008 (2) ALD 553 18 RCA.24 of 2023 order for Rs.1500/- to the petitioner on 16.04.2021 under Ex.R-3.

Likewise, he has enhanced the rent from month to month for every month. In turn, the petitioner refused to receive the said rent.

On the other hand, the petitioner filed the present

R.C. on 18.01.2021 against the respondent for eviction. After knowing the same, the respondent tendered the rent on 22.01.2021 by taking the false plea that he paid the rent to the petitioner during the pandemic, but the petitioner refused to issue rent receipts from

January 2019 to October 2020 and that he tendered the rent through money order and that the petitioner refused to receive the rent. But there is no proper explanation from the respondent why he sent the rent by way of a money order for Rs.600/-, Rs.900/-, Rs.1800/-, Rs.1800/- etc., by adding Rs.300/- for every month under Exs.R-1 to R-18 and again reduced the rent under Ex.R-17. It clearly shows that the respondent is not sending the rent regularly and he is irregular in payment of rent and also has not filed any petition either under Section 8(5) or under Section 9(3) of the Act of 1960 if there are other co-sharers entitled to receive the rent as alleged by the respondent in the cross-examination of PW-1 and not established his bona fides. Apart from that, he has not paid all the rent arrears as of the date of his first appearance, in this case, to 19 RCA.24 of 2023 show his bona fides. Apart from this, once there was a practice of issuing rent receipts, he still needed to produce the same. The respondent neither issued any legal notice requesting to issue a rent receipt nor followed the procedure to deposit rent in the Court on the refusal by the petitioner.

23.As per the decision in the case of "Vinukonda Venkata

Ramana vs Mootha Venkateswara Rao." 6Reported in 2001 (6) A.L.D.

27 (F.B.) = A.I.R. 2002 A.P. 52 (F.B.), where the Hon'ble High Court of A.P.

held that:

“Default committed in payment of rent after the filing of eviction petition is a good ground for eviction provided an application is filed under Section 11 to put the landlord in possession."

Given the above proposition of law, rent tendered or paid after filing the eviction petition will not protect the respondent on the ground of wilful default in payment of rent. Respondent further failed to establish that he paid the rent from January 2019 to October 2020 with cogent evidence.

62001 (6) ALD 27 (FB) = AIR 2002 AP 52 (FB) 20 RCA.24 of 2023

24.As per the decision in the case of “Smt. Jahejo Devi vs.

Moharam Ali” 7 reported in 1988 (1) SCC 372, where the Hon’ble Apex

Court held that:

“Conscious violation of duty or obligation will amount to wilful default.”

25.In this case, the respondent failed to pay rent from January 2019 onwards and tendered the rent as per his wish and convenience after filing the eviction petition by the petitioner by way of money order under Exs.R-1 to R-18 and did not take any steps to deposit the rent either under Section 8(5) or under Section 9(3) of the Act of 1960 in case of disputes with regarding the ownership of petition scheduled premises and not followed the procedure established under Act of 1960. Therefore, the tendering of rent under Exs.R-1 to R-18 cannot be considered proper tender, and there was a conscious violation of duty or obligation of payment of rent and failure to pay the rent from

January 2019 until the filing of the eviction petition. Therefore, this

Court safely concluded that the respondent committed wilful default in payment of rent regarding the petition scheduled premises, and he is 71988 (1) SCC 372 21 RCA.24 of 2023 liable to be evicted from the same. Accordingly, point No.2 is answered in favour of the petitioner and against the respondent.

POINT NO.3 - RESULT:-

26.Given the discussion in points Nos. 1 and 2, the Appeal can be allowed by setting aside the impugned judgment passed by the learned Rent Controller.

27.As a result, an Appeal is allowed without costs by setting aside the impugned order passed by the Additional Rent Controller, City

Small Causes Court, Secunderabad, in R.C. No.5 of 2021 dated 27.7.2023. The respondent is directed to vacate and hand over the vacant possession of the petition's scheduled premises to the petitioner within two months from the date of this order, failing which the petitioner is at liberty to take possession of the scheduled premises by following the due process of law.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me

in the open Court on March 12th, 2024.

Sd/-

(F.A.C.) ADDITIONAL CHIEF JUDGE,

CITY SMALL CAUSES COURT,

HYDERABAD.

Sarma

1 RCA.33 of 2023

IN THE COURT OF THE CHIEF JUDGE: CITY SMALL CAUSES COURT:

AT HYDERABAD.

Dated this the 23 rd Day of APRIL 2024.

Present: Smt. V.B. NIRMALA GEETHAMBA

CHIEF JUDGE

R.C.A. No. 33 OF 2023

Between

Sudesh Kumar, S/o. Late Surender Mohan Chawla, aged about 50 years, R/o. Flat No.202, Vaibhav Kunj Apartments, Lower Tank Bund, Opp. Vaartha Office, Hyderabad. .… Appellant/Respondent/tenant AND

M/s. Shivdat Rai Educational Charitable Trust, Rep. by Correspondent Kantilal Agarwal, S/o. late Gulabraj Ji Agarwal, Aged about 80 years, R/o. 21-2-289/2, Lad Bazar, Hyderabad.

... Respondent/Petitioner/Landlord.

This is an appeal against the order dated 31.10.2023 in R.C. No.51 of

2017 on the file of I Additional Rent Controller, City Small Causes

Court, Hyderabad.

Between:

M/s. Shivdat Raj Educational Charitable Trust …Petitioner

And

Sudesh Kumar.. Respondent.

2 RCA.33 of 2023

This appeal was listed before me for a final hearing in the presence of Sri Srinivas Chamala, Advocate for the Appellant and Sri

Murlinarayan Bung, Advocate for Respondent and having been stood over the matter for consideration till this day, this court delivered the following:

J U D G M E N T

The unsuccessful respondent preferred the present appeal under section 20(1) of Telangana Buildings (Lease, Rent & Eviction)

Control Act, 1960 [from now on be referred to as "Act of 1960" wherever necessary "in short"], regarding the premises bearing

Municipal No.21-2-772/25 & 26, First Floor, Gulab Rai Building, Patel

Market, Hyderabad (from now onwards referred to as 'petition scheduled premises wherever it is necessary) against the impugned eviction order passed by the learned I Additional Rent Controller, City

Small Causes Court, Hyderabad, in R.C. No.51 of 2017 dated 31.10.2023.

2.The appellant is the respondent/tenant. Respondent is the petitioner/landlord before the trial court. For convenience's sake, the parties from now on are called "petitioner" and "respondent" as they are arrayed before the trial court.

3 RCA.33 of 2023

BREVITY OF PLEADINGS:

3.The petitioner applied under Section 10(2)(i), 10(2)(ii)(b), 10(3)(a)(iii)(b) and 10(2)(v) of the Act of 1960 seeking eviction of the respondent regarding the petition scheduled premises. The petitioner is the landlord, and the respondent is a tenant of the petition-scheduled premises. Initially, the petitioner inducted the father of the respondent on monthly rent and used to pay the rent to the petitioner trust every month regularly. After the demise of his father, the respondent continued the tenancy. However, the respondent is very irregular in monthly rent and used to pay the rent sometimes quarterly, half-yearly and yearly intentionally, though the petitioner trust used to demand every month. The petitioner further submitted that the respondent lastly paid the rent on 18.7.2014 @ Rs.1,665/- per month for a period from 1.4.2013 to 31.3.2014 amounting to Rs.19,980/- though cheque bearing No.008653 and the petitioner received the same and the respondent agreed to enhance the rent for Rs.3,330/-, but fails to pay the same from 1.4.2014 onwards and that the respondent committed wilful default in payment of rent. He further submitted that he came to know that the respondent is not utilising the petition scheduled premises, and the same has been kept under lock for more than nine months and seized to occupy the premises. He further 4 RCA.33 of 2023 submitted that the respondent had not paid the electricity charges, and the electricity service connection was disconnected years ago for non- payment of electricity consumption charges and non-using of the petition scheduled premises. He further submitted that there was an exchange of legal notices between the petitioner and respondent, but the respondent failed to vacate the same and did not pay the rent as he agreed. Hence, pray to evict the respondent from the petition scheduled premises. Hence, the petition.

4.The Respondent filed a counter and denied all the material allegations made in the petition. He further submitted that his father, the late Surender Mohan, obtained the petition scheduled premises in 1964 for an initial rent of Rs.20/- per month, including water and electricity charges. Later, they again took other premises, and there was no toilet facility. He further submitted that after his father's death in 1996, he became the tenant of the scheduled premises and was paying the rent of Rs.1,665/- p.m. for both portions. He further submitted that he did not commit any wilful default in payment of rent. He further submitted that after the demise of his father in 1996, he became the tenant of the petition scheduled premises, and he was paying rent of 5 RCA.33 of 2023

Rs.600/- per month very regularly every month. The rent was increased, and he currently pays Rs.1,665/- monthly. He further submitted that he sent the rent regularly through a demand draft to the petitioner and also gave a suitable reply to the petitioner through this counsel and that he did not commit wilful default in payment of rent. The respondent further submitted that he is utilising the premises and has not ceased the premises as alleged by the respondent. He further submitted that due to the ill health of his mother, sometimes for about two weeks, it was kept under lock and key. Hence, he prays that the petition with costs be dismissed.

5.During the enquiry, the petitioner himself was examined as

PW1 and Ex.P1 to Ex.P10 marked. The respondent was examined as

RW.1 and Ex.R.1 to Ex.R.6 marked.

6.Upon considering the rival contentions and perusing the evidence on record, the learned Rent Controller allowed the eviction petition and the respondent is directed to vacate the petition schedule premises and hand over the physical and vacant possession of the petition schedule premises to the petitioner within two months from 6 RCA.33 of 2023 the date of the order. In case of failure, the petitioner is at liberty to take possession of the petition schedule property by following due process of law.

7.Aggrieved by the impugned eviction order, the unsuccessful respondent preferred the present appeal on several grounds.

8.Being the first appellate Court, this Court inclined to appreciate the evidence on record afresh.

9. Upon considering the rival contentions perusing the material available on record, the points that arise for determination

before this Court are as follows:

1) Is there sufficient evidence on record to establish that the respondent committed wilful default in payment of enhanced rent from 1.4.2014 @ Rs.3,330/- per month regarding the scheduled premises?

2) Is there sufficient evidence on record to establish that the respondent has kept the premises under lock and key and ceased to occupy the scheduled premises? If so,

3) What relief?

Submissions of the counsel for the petitioner:- 7 RCA.33 of 2023

10.The counsel for the petitioner relied on the trial court's findings. He further argued that the respondent committed wilful default in payment of rent, and RW-1 admitted the same. The burden lies on the respondent to establish that he paid the rent during the default period but not on the petitioner. He further submitted that the respondent had not taken any steps for the deposit of rent in case of refusal to receive the rent from 2014 onwards by following the procedure under Section 8 of the Act of 1960, and without following the same, the respondent had not deposited the rent till the filing of the eviction petition. Therefore, it amounts to a wilful default in the payment of rent. He further argued that the respondent did not utilise the petition-scheduled premises and kept the premises under lock and key for more than nine months. Therefore, the respondent is liable to be evicted on both grounds. Hence, pray to dismiss the appeal.

Submissions of the counsel for the respondent:-

11.The counsel for the respondent argued that the respondent himself pays the rent regularly and has continued to petition scheduled premises. The petition is not maintainable under the eye of the law, and it comes under the jurisdiction of the Endowment Department, and this 8 RCA.33 of 2023

Court Court has no jurisdiction. He further argued that there is no default in payment of rent, and he is continuously sending the rent through M.O./DD, and the petitioner received the same, but he still needs to encash the same and that there is wilful default in payment of rent. He relied on the decision in the case of "Karri Krishnaveni Vs

Batchu Nookaraju Reddi" reported in 2003(2) ALD 769.

12.Admitted Facts:

1.The petitioner is the proposed premises' landlord bearing No.21-2- 772/25 & 26.

2.The respondent's father obtained the petition scheduled premises in 1964. After his death, he continued as a tenant of the scheduled premises.

3.The respondent lastly paid the monthly rent on 18.07.2014 @

Rs.1,665/- for the period from 01.04.2013 to 31.03.2014 amounting to

Rs.19,980/-.

4. There is no dispute about the identification of scheduled property.

Appreciation of evidence on record: POINT NO.1:

13.As per the respondent's version, the rent includes water and electricity consumption charges, but the respondent did not produce sufficient evidence on record to establish the same. The 9 RCA.33 of 2023 burden heavily lies on the respondent/tenant in case of wilful default in payment of rent. On the other hand, nothing was elicited contrary to the evidence on record, and no rent receipts were produced even though there is no practice of issuing rent receipts as per the admission of PW1 in his cross-examination. The case of the petitioner is that the respondent failed to pay the rent from 01.04.2014 onwards, i.e., the enhanced rent @ Rs.3,330/- per month.

14.As per the decision in the case of "Karri Krishnaveni Vs

Batchu Nookaraju Reddi" reported in 2003(2) ALD 769, the Hon'ble

High Court held that:

“If the tenant fails to pay the increased rent, the burden heavily lies on the landlord to establish the same by producing the cogent evidence on record.”

Admittedly, no lease deed establishes that the respondent agreed to pay the enhanced rent @ Rs.3,330/- P.M. from 01.04.2014, except exchange of legal notices under Ex.P1 & P2. The petitioner did not produce any lease deed or any oral evidence to establish that the rent for the scheduled premises as of the date of the eviction petition is

Rs.3,330/- p.m. as stated by him.

10 RCA.33 of 2023

15.on the other hand, the petitioner himself admitted in his chief affidavit in para-5 that the respondent last paid the rent on 18.07.2014 @ Rs.1,665/- p.m. for the period from 01.04.2013 to 31.03.2014 amounting to Rs.19,980/- through cheque bearing

No.008653 and the petitioner received the same. Therefore, it clearly shows that the respondent paid the rent for one year on 18.07.2014 @

Rs.1,665/- p.m. and that the admitted rent for the scheduled premises as of the date of filing of the eviction petition is Rs.1,665/- p.m. and the petitioner fails to establish that the rent for the petition scheduled premises was enhanced from Rs.1,665/- to Rs.3,330/- p.m. as on the date of filing of the eviction petition. Therefore, this Court safely concluded that the rent for the petition scheduled premises is Rs.1,665/- p.m.

Admittedly, the tenant paid the rent up to 31.03.2014, and there is a practice of issuing rent receipts whenever the respondent pays the rent to the petitioner trust. RW1 did not dispute the same in his cross- examination. If the same is considered, the rent was not paid every month regularly as per oral tenancy between the petitioner and respondent, and he needed to be more regular in paying rent. As per 11 RCA.33 of 2023 the respondent's version, he sent the rent through D.D., but the petitioner did not encash the same to create the grounds for wilful default. PW1 confronted no such copies of D.D.s in the cross- examination. It shows that the respondent sent the rent through D.D.

from 26.07.2014 under Ex.R4.

16.On the other hand, the respondent examined himself as

RW1 and admitted in his cross-examination as follows:

“I am paying the rent @ Rs.1665/- per month. I am paying the rent @ Rs.1665/- per month from 2014 onwards. I have not filed any documents about the rent payment from 1996 to 2014. I paid the rent by issuing a cheque/D.D. from 2014 onwards. I have filed a bank statement in court about the rent payment. I have not filed any document to show that I used to pay the rent in advance. On confrontation of a letter dated 26.07.2014, it is true that when the counsel for the petitioner put a question that as per the letter filed by you, you have paid the rent for April 2014 in July 2014, which is after three months from the regular month, witness says that it is after two months I give the rent. It is true as per Ex.R.4. I paid rent for the m014 in August 2014 as in the letter dated 30.08.2014, so I also have rent for June 2014 and September 2014.

Q: You mentioned in your chief affidavit that you issued prior notice to the petitioner that you are paying the rent, but he is not receiving it. In this regard, have you asked him to furnish a bank account so that you can deposit the monthly rent?

A: I asked him orally to furnish the bank account, but he refused.

I have taken permission from the Court Court to deposit the rent regarding the petition schedule property after filing this R.C. I cannot say the R.C. number for the rent deposit, and my advocate knows the same. I do not know whether I filed an R.C. for deposit of rents prior to filing this R.C. or after filing this R.C." 12 RCA.33 of 2023

Given the admissions of RW-1, it clearly shows that the respondent is irregular in payment of rent and committed wilful default in payment of rent up to 2014. Subsequently, he needed to send the rent through demand drafts under Ex.R-4, the petitioner did not encash the same, and the respondent did not issue any legal notice to call for the bank account of the petitioner trust to enable the deposit of the rent. He was paid the rent through D.D. routinely without following the procedure established under the Act of 1960. When the landlord refuses to receive the rent, the obligation is on the tenant to deposit the rent under

Section 8 of the Act of 1960 by getting permission from the court.

Admittedly, the respondent should not have had permission from the court to deposit rent from 01.04.2014 onwards and should not have followed the procedure under the Act of 1960. As per the respondent's version, he is depositing the rent after filing the eviction petition before the Court, but he pleads ignorance of whether he deposited the rent into Court. In the circumstances mentioned above, it is clear that the respondent is not vigilant. However, he is facing eviction proceedings; he did not tender the rent properly to the petitioner, and he was very irregular in payment of rent and continued the same till filing the 13 RCA.33 of 2023 eviction petition. Moreover, the procedure should have been followed if the petitioner refused to receive rent when he was tendered through a money order under Ex.R4. In the above-said aid circumstances, this is considered a wilful default in payment of rent, and the respondent is liable to be evicted from the petitioner's premises. This point is answered accordingly in favour of the petitioner and against the respondent.

POINT NO.2

17.The specific contention of the petitioner is that he came to know that for more than nine months, the respondent failed to occupy the scheduled premises and did not pay the electricity consumption charges, due to which the electricity connection was disconnected. On the other hand, the respondent argued that the trial court erroneously considered the photographs filed under Ex.P-6 without cogent evidence. Hence, pray to set aside the impugned order.

14 RCA.33 of 2023

18.The counsel for the respondent relied on a decision in the case of "Babulal (died) per L.Rs. vs Lalchand" reported in 2006 (6) ALT 102 (S.B.) where the Hon'ble High Court held that :

“No presumption can be drawn from photographs which show lock and key to one of the mulgies that premises were closed for more than four months in the absence of any other evidence and that no evidence to prove acts of waste by the closure of the building and no steps taken by the landlord to get an Advocate Commissioner appointed to note down physical features inside the godown and acts of waste and no evidence when the photographs were taken and that even if the premises were closed for a few days, no inference could be drawn that it was continuously closed for four months. Hence, the Hon'ble High Court dis- believed the closure of the premises and set aside the impugned order."

The specific contention of the respondent is that he has yet to keep the petition scheduled premises under lock and key, and all his belongings are still there on the premises. The premises are used by his younger brother and his family, along with their mother, aged 82 years. For a couple of months, the mother of the respondent was hospitalised for two weeks as she fell from the bed and broke her shoulder bone. Hence, she has been living with the respondent for a couple of months, and the respondent pays electricity bills regularly. In the case of ceasing to occupy the premises, the burden lies on the landlord to establish the same. In this case, the counsel for the petitioner cross-examined RW-1 on this ground. RW-1 admitted in his cross-examination as follows:

15 RCA.33 of 2023 “I have mentioned in my Ex.R-5 that in 1964, the initial rent was Rs.25/- per month, which included electricity, water, and building maintenance bills. In paragraph No.1 of the chief affidavit, it was mentioned as Rs.36/- per month in 1964. Witness adds that it was written as Rs.36/- instead of Rs.25/- per month by mistake. After filing the R.C., we knew the rent was Rs.25/- only, not Rs.36/- as we found the receipts of Rs.25/- which the landlord issued. We have filed said receipts in this CourtCourt.

He further admitted that.

In Ex.R-4, I mentioned my residence address, Lower Tank Bund. The address shown in Ex.R-4, dated 26.7.2014, is not the petition-scheduled property. I have filed the document to show that I resided in the petition-scheduled property in 2014, prior to 2014, and after 2014 to today.

On confrontation of Exs.R-1 to R-6, RW-1 replied that he had not filed any document about the property in the petition-scheduled premises.

The respondent has yet to produce any document like an Aadhaar Card,

Electricity bill or water charges bill to establish that he has the petition scheduled premises as of the date of giving evidence by RW-1 before the trial court. On the other hand, in Ex.R-4 covering letter, the address is showing as follows:

“Sudesh Kumar, S/o. Late Surinder Mohan Chawla, R/o. Flat No.201, 202, Vaibhav Kunj Apartments, Lower Tank Bund, Opp. Vaartha Office, Hyderabad."

RW-1 admitted the same in his cross-examination. The entire Ex.R-4 photostat copies of demand drafts start from August 2014 till the filing 16 RCA.33 of 2023 of the eviction petition. It clearly shows that the respondent is not residing in the petition's scheduled premises. Apart from the above, the petitioner produced the photograph and a CD to establish that the respondent was not living in the petition's scheduled premises. It was kept under lock and key. Once there is corroborative evidence regarding the non-occupation of the petition scheduled premises, the evidence produced by the petitioner under Exs.P-4 and P-5 shall be considered.

Therefore, the decision relied on by the respondent does not apply to the present facts of the case, and the trial court rightly concluded that the respondent had kept the premises under lock and key and had ceased to occupy them. Therefore, the respondent is liable to be evicted from the petition scheduled premises. Accordingly, this point is answered in favour of the petitioner and against the respondent.

POINT No.3:

19.Given this Court's findings under points Nos. 1 and 2, the petitioner is entitled to evict the respondent from the petition scheduled premises.

17 RCA.33 of 2023

20.Given the discussion above, there is no infirmity in the order of the learned Rent Controller, and the same is confirmed. Thus, the appeal can be dismissed due to lack of merits.

RESULT:

20.As a result, the appeal is dismissed without costs by confirming the order passed by learned I Additional Rent Controller,

City Small Causes Court, Hyderabad, in R.C. No.51 of 2017 dated 31.10.2023. The respondent is directed to vacate the petition scheduled premises and hand over the physical and vacant possession of the petition scheduled premises to the petitioner within two months from this order, failing which the petitioner is at liberty to evict the respondent by following due process of law.

It was dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the open Court on April 23rd, 2024.

Sd/-

CHIEF JUDGE,

CITY SMALL CAUSES COURT,

HYDERABAD.

Sarma

1 R.C.A. 26/2023

IN THE COURT OF THE ADDITIONAL CHIEF JUDGE: CITY SMALL

CAUSES COURT: AT HYDERABAD.

Dated this the 9 th Day of JANUARY 2024.

Present: Smt. V.B. NIRMALA GEETHAMBA

CHIEF JUDGE.

(F.A.C.) ADDL. CHIEF JUDGE.

R.C.A. No.26 OF 2023

Between:-

1. Nagari Balram, S/o. Nagari Radhakrishna, aged about 35 years, Occ: Business, R/o. H.NO.5-8-47, Fateh Sultan Lane, Nampally, Hyderabad.

2. Nagari Sandeep, S/o. Nagari Radhakrishna, aged about 33 years, Occ: Business, R/o. H.No.5-8-47, Fateh Sultan Lane, Nampally, Hyderabad.

.. Appellants-Petitioners.

And

1. Arsid Ravinder, S/o. late Arsid Ramchander, aged about 58 years, Occ: Business in shop No.8, Ground Floor, Nagari Market, M.No.15-6-351, situated at Nagari Market, Begum Bazar, Hyderabad & H.No.14-1-424, Aghapura, Hyderabad.

2. Rahul, S/o. Arsid Ravinder , aged about 30 years, Occ: Business in shop No.8, Ground Floor, Nagari Market, M.No.15-6-351, situated at Nagari Market, Begum Bazar, Hyderabad & H.No.14-1-424, Aghapura, Hyderabad.

.. Respondents-Respondents.

Appeal against the orders dated 25.04.2023 in R.C. No.149 of 2015 on

the file of Principal Rent Controller, City Small Causes Court,

Hyderabad.

Between:

1. Nagari Balram.

2. Nagari Sandeep ...Petitioners

2 R.C.A. 26/2023

And

1. Arsid Ravinder

2. Rahul ...Respondents.

This appeal is coming before this Court on 05.01.2024 for a final hearing in the presence of Sri R.A. Achuthanand, Advocate for the

Appellants and Sri Pramod Kinhalkar, Advocate for Respondent and having been stood over the matter for consideration till this day; this

Court delivered the following:-

J U D G M E N T

This appeal is preferred by the petitioners/landlords under

Section 20(1) of the Telangana Buildings (Lease, Rent and Eviction)

Control Act, 1960 (for short "Act of 1960 wherever it is necessary) against the impugned order passed by the Principal Rent Controller, City

Small Causes Court, Hyderabad, in R.C. No.149 of 2015 dated 25.04.2023 regarding part of shop No.8 on the ground floor, admeasuring 236.52 sq.ft., in the premises bearing door No.15-6-417, 418, 536, 537, 538 and 351 (new M.No.15-6-351), situated at Nagari Market, Begum Bazar,

Hyderabad (now onwards referred as “petition scheduled property” wherever it is necessary).

3 R.C.A. 26/2023

2.Appellants are the 'landlords', and the respondents are the 'tenants' of the petition scheduled property. For convenience's sake, the parties will be called "the petitioners and the respondents" as they arrive before the trial court in R.C. No.149 of 2015.

The brevity of the pleadings of the case is as follows:

3.The petitioners applied under Section 4(1) of the Act of 1960 seeking fixation of fair rent @ Rs.35,000/- per month. The petitioners are the absolute owners of the petition scheduled property consisting of ground, first and second floors, each consisting of 236.52 sq.ft. The petitioners acquired the same under a registered gift settlement deed dated 31.7.2009 executed by their father, Nagari

Radha Krishna. They further submitted that the respondents were tenants of the ground floor and paying monthly rent of Rs.2,600/- exclusive of electricity consumption charges. As per the terms of oral tenancy, the monthly rent is payable on or before the 5th of every month in advance. The petitioners further submitted that their father let out the premises to the respondents. The tenancy was orally attorned by the petitioners’ father in their favour. The respondents stopped paying the rent from 2013 onwards. There is a practice of issuing rent receipts, and petitioner No.2 gave a receipt on plain paper, which is in the 4 R.C.A. 26/2023 respondents’ possession. The petitioners further submitted that the petition scheduled property is situated in the Begum Bazar area, which is a known locality of commercial business and is near Feel Khana, Khan

Market Machi Market, Bartan Market, which is famous for plastic-ware business and the said market is an old market in the twin cities of

Hyderabad and Secunderabad. There is a massive turnover of business, which may run into corners. The petitioners further submitted that the rent payable by the respondents is very meager. There is an increase in land value and money, and the petition scheduled property would fetch at least Rs.35,000/- per month. The petition scheduled the property to be constructed more than 25 years back. Hence, pray to fix the fair rent to the petition scheduled property.

4.The respondents filed their counter, denied all the material allegations made in the petition, and admitted the jural relationship between them and the petitioners' father. He further submitted that initially, the monthly rent for the petition scheduled property was

Rs.2000/- exclusive of electricity consumption charges, which was enhanced occasionally. The rent for the petition scheduled property is

Rs.2600/- per month. He further submitted that in 2009, the respondents have paid a substantial amount of Rs.7,00,000/- as a 5 R.C.A. 26/2023 deposit for the said premises, but no receipt was issued, and they did not insist on giving such a receipt due to the close relationship between them. They further submitted that the petitioners' father executed a lease deed on 26.9.2009 for 25 years commencing from 1.12.2009 for the ground floor of shop No.6, having premises No.15-6-351. The said lease deed is in possession of the petitioners, who did not come forward to register the same. He further submitted that the petition-scheduled property is outside the central location of Begum Bazar and is far from the main road. The petition scheduled property is a very old construction, and it is in a very bad condition. The landlord does not undertake repairs to the building, and the tenants of the petition- scheduled property only have to take care of the repairs. He further submitted that the petitioners have not provided any water or bathroom facility in the petition-scheduled property and has yet to even undertake whitewashing of the building. He further submitted that there needs to be a proper parking space for two-wheelers or four- wheelers. Customers must park their vehicles far away from the petition scheduled property, reducing the business lot. He further submitted that there is no dispute about the extent of the mulgi and that in light of the size, location and terrible condition of the petition scheduled 6 R.C.A. 26/2023 property, the rent he paid is proper and reasonable. Hence, please pray to dismiss the petition with costs.

5.In enquiry, petitioner No.2 examined himself as PW-1 and marked Exs.P-1 to P-5. To rebut the evidence of the petitioners, the respondent No.1 was examined as RW-1, and Ex.R-1 marked.

6.Upon considering the rival contentions, perusing the evidence available on record, the learned Rent Controller fixed the fair rent regarding the petition scheduled property at the rate of Rs.6,000/- per month from the date of the petition, i.e. 19.6.2015. The respondents are directed to pay the fair rent @ Rs.6,000/- per month to the petitioners from the date of the petition and further directed to enhance the rent @ 5% for every year from the date of disposal of this

R.C. on the existing rate of rent in respect of petition schedule premises. The rent arrears shall be paid to the petitioners by the respondents within six months from the date of this order.

7.Aggrieved by the impugned order, the petitioners preferred the present appeal.

7 R.C.A. 26/2023

8.Both counsels were present and heard.

9.Being the first appellate Court, this Court is inclined to appreciate the evidence on record afresh without relying on the trial court's findings.

10.Upon considering the rival contentions, perusing the material available on record, the points that arise for determination

before this Court are as follows:

1) Is there sufficient evidence to fix the fair rent at Rs.35,000/- per month regarding the petition scheduled property as prayed by the petitioners? If so,

2) To what relief?

Submissions of the counsel for the petitioners:

11.The counsel for the petitioners argued that there is no dispute regarding the jural relationship, quantum of rent and extent of the mulgi, and it is situated at Begum Bazar, Hyderabad. He further argued that as per Ex.P-4 certified copy of the lease deed, which was executed in the year 2013, the rent for the shop covered under Ex.P-4 is

Rs.25,000/- per month, and the said premises is near the petition scheduled property, but the Rent Controller did not consider the same.

8 R.C.A. 26/2023

Hence, please pray to fix the fair rent regarding the petition-scheduled property @ Rs.35,000/- p.m.

Submissions of the counsel for the respondents:

12.The counsel for the respondents argued that the respondents vacated the petition scheduled property and handed over the same to the petitioners. The rent fixed by the Rent Controller is just and reasonable, and there is no irregularity. He further argued that the landlords should have examined the witness to prove the quantum of rent and to prove the contents of the Ex.P-4 lease deed. Therefore, the same cannot be taken into consideration. Hence, pray to dismiss the appeal.

13.Admitted Facts:

1)There is no dispute between the petitioners and respondents about the jural relationship as landlords and tenants.

2)There is no dispute about the quantum of rent regarding the petition scheduled property.

3)The rent at the time of filing of the present petition regarding the petition scheduled property is Rs.2600/- per month, and the respondents have not raised any dispute regarding the jural relationship 9 R.C.A. 26/2023 and quantum of rent even at the appeal stage and they were vacated and delivered the petition scheduled property to the petitioners.

4) There is no dispute about the identification and extent of the mulgi. The scheduled property is 236.52 sq.ft.

POINT NO.1: Appreciation of evidence on record:

14.Petitioner No.2 was examined as PW-1, and as per the admission of PW-1, the petition scheduled mulgi is RCC construction. He further admitted that they were not used to whitewash, colour or paint the petition-scheduled property. As per the evidence of PW1, it is for the tenants to whitewash the mulgi. He further admitted that the petition scheduled property existed in the building belonging to the

Nagari Family. Besides the Nagari family, they also do business in the building complex. He further admitted that the petition scheduled property consists of the ground, first and second floors and has a staircase within the shop and a common staircase and passage outside the shop. He further admitted that he filed a certified copy of the lease deed Ex.P-4 of the existing shop in the said locality to show the existing rate in the petition scheduled property locality, and the owner of the mulgi covered under Ex.P-4 is one Smt. Nandini, who is relative to him.

He further admitted that the mulgi covered under Ex.P-4 is Rs.25,000/- 10 R.C.A. 26/2023 per month. He further admitted that the property under Ex.P-4 has three 200 sq. ft floors., each. He denied the suggestion that each floor would fetch only Rs.8,333/- per month.

15.To rebut the petitioners’ evidence, the respondent No.1 was examined as RW-1. As per the evidence of RW-1, he is doing artificial jewellery business in the petition scheduled property, and his father obtained the petition organized property in 1990 from Nagari

Pandushah on oral lease. After his father's death, he paid the rent to

Radhakrishna, the petitioner's father. He further admitted that all kinds of businesses are done in the petition scheduled property locality, like general goods, imitation jewellery, dry fruits, Bartan Bazaar etc. He further admitted that Osmania Hospital is about 3 to 4 kilometers from his shop. He pleaded ignorance that his younger brother Manoj signing the gift settlement deed before the Registrar's Office as a second witness. He further admitted that he stated in R.C. No.138 of 2015 that he is doing business on the ground floor of Nagari Market, which is adjacent to Saraswathi Fabrics. He further admitted that he is currently paying Rs.2,600/- per month towards rent for the ground floor. He further revealed that his younger brother Manoj is doing business on the second floor of the petition-scheduled property. He further 11 R.C.A. 26/2023 admitted that he had shown his rent in the income tax returns and had yet to file the same before the Court. He further admitted that I

Additional Rent Controller, Hyderabad, passed an eviction order in R.C.

No.138 of 2015 against him.

16.The evidence on record clearly establishes that the petition scheduled property is situated at Begum Bazar, Hyderabad. The respondents wer doing imitation jewellery business and said the shop is located on the ground floor of the premises bearing New No.15-6-351.

The area is famous for all types of businesses, i.e., food grains, dry fruits,

Barton Bazar, imitation jewellery, etc. It is renowned for its retail and wholesale business.

LEGAL PROPOSITIONS:

17. The counsel for the petitioners relied on a decision in a case

As per the decision in a case of “Kiron’s Partnership Firm, Secunderabad vs.

Mangalagiri Mohammed Ibrahim @ Babu Mia (died) per LRs.” 1wherein the

Hon’ble High Court of Andhra Pradesh held in para 17 that:

“The lower appellate court has reappreciated the evidence on record. Even though the parties connected with Exs.P-7 to P-10 were not examined, the lower appellate Court has considered those documents as they (Exs.P-7 to P-9) were certified copies relating to a transaction with a Nationalized Bank, the authenticity of which was not disputed. It 12012 (4) ALT 481 12 R.C.A. 26/2023 has also considered Ex.P-10 relating to premises comprising 550 sq. ft. area for which a rent of Rs.9000/- was being paid, which works out to Rs.16/- per sq. foot. After weighing the documentary evidence adduced by both the sides, the lower appellate court has arrived at the conclusion that as on the date of filing of the petition, the prevailing rent of the demised premises was about Rs.16/- per sq. foot. On finding that at the said rate the total rental value will come to Rs.9600/- and that the learned Principal Rent Controller has fixed Rs.10,000/-, the lower appellate court has confirmed the same. On a careful consideration of the reasons assigned by the lower appellate Court, I am thoroughly satisfied that the same do not warrant any interference of this Court in exercise of its revisional jurisdiction. Nothing is brought to the notice of this Court by the learned counsel for the tenants indicating that any of the findings rendered while fixing the fair rent suffer from irrationality. Therefore, the market rate of rent fixed by the Courts below also does not call for any interference.”

In view of the proposition of law in the above decision, in this case, if

Ex.P-4 is considered, which was executed in 2013 between Omkari

Rakesh and Smt. N. Nandini, about shop No.5 in premises bearing No.15- 6-538/3, on the ground floor having an extent of 200 sq.ft., in the same building, the rent for the said premises is Rs.25,000/- per month. The same was not denied by the respondents. Only they denied to the extent of the mulgi, quantum of rent. Admittedly, PW1 not examined executor of Ex.P4 to prove the quantum of rent though revealed that she is his relative.

18.As per the decision in the case of “Mohammad Ahmad vs.

Atma Ram Chauhan 2 ” reported in (2011) 7 SCC 755, where the Hon'ble 2(2011) 7 SCC 755 13 R.C.A. 26/2023

Apex Court had given standardized structures fixing guidelines and norms to minimize the landlord and tenant litigations. The Apex Court, in para No.21, held that:

21. "According to our considered view, most of these cases are filed because landlords do not get reasonable rent akin to market rent, then litigation is initiated on one ground or the other. Before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such litigation to minimise landlord-tenant litigation at all levels. These are as follows:-

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years, and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back, then the present market rate should be worked out either based on a valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, and electricity charges for the actual consumption of the tenanted premises and for the common area shall be payable by the tenant only so that the landlord gets the actual rent, out of which nothing would be deductible. If there is an enhancement in property tax, water tax, maintenance charges, or electricity charges, then the tenant shall also bear the same.

(iii) The usual maintenance of the premises, except significant repairs, would be carried out by the tenant only, and the landlord would not reimburse the same.

(iv)But if any major repairs are required to be carried out, then in that case, only after obtaining permission from the landlord in writing, the same shall be carried out, and modalities about adjustment of the amount spent thereon would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any action for his eviction against such a tenant for at least 5 years. Thus, for a period of 5 years, the tenant shall enjoy immunity from being evicted from the premises.

14 R.C.A. 26/2023

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or any other agency with expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind the location, type of construction, accessibility with the main road, parking space facilities available therein, etc. Care ought to be taken that it does not end up being a bonanza for the landlord."

In view of the proposition of law in the above cases, in this case, the respondents suffered eviction proceedings, vacated the petition- scheduled property, and handed over the same to the petitioners.

Therefore, in the above-said circumstances, the fixation of fair rent must be reasonable, and the Court should take into consideration the age of the building, extent, usage, and rental value in the vicinity of the petition scheduled property. The petition scheduled property has more than the extent mentioned in Ex.P-4, and the petition scheduled property is more than 25 years old building and has no amenities to scheduled property. Admittedly, it is situated in a commercial locality, where it is famous for wholesale and retail business. The respondents are doing imitation jewellery business in the petition scheduled property. As per the version of RW-1, they lost the business due to the online shopping business. However, he did not produce any evidence to establish the same.

15 R.C.A. 26/2023

19.On the other hand, the respondents vacated the petition- scheduled property and handed over the same to the petitioners in view of the eviction orders passed against him in R.C. No.138 of 2015. The same was admitted by the petitioners. Once he was evicted from the petition scheduled property, considering the above facts and circumstances, considering the evidence on record, this Court took a lenient view and fixed the fair rent for the petition scheduled property at Rs.6,000/- per month, and there is no any irregularity in the order of the Rent Controller and the same is confirmed.

POINT NO.2

20.In the result, the appeal is dismissed by confirming the order passed by the Principal Rent Controller, City Small Causes Court,

Hyderabad, in R.C. No.149 of 2015, dated 25.04.2023 by fixing the fair rent regarding the petition scheduled property at the rate of Rs.6,000/- per month from the date of petition, i.e. 19.6.2015. The respondents are directed to pay the fair rent @ Rs.6,000/- per month to the petitioners from the date of the petition and further directed to enhance the rent @ 5% for every year from the date of disposal of R.C.

on the existing rate of rent regarding the petition schedule property.

The arrears of rent shall be paid to the petitioners by the respondents 16 R.C.A. 26/2023 within six months from the date of this order. Each party bears their own costs.

It was dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on 9th January 2024.

Sd/-

(F.A.C.) ADDITIONAL CHIEF JUDGE

CITY SMALL CAUSES COURT

HYDERABAD.

Sarma

1 R.C.A. 25/2023

IN THE COURT OF THE ADDITIONAL CHIEF JUDGE: CITY SMALL

CAUSES COURT: AT HYDERABAD.

Dated this the 9 th Day of JANUARY 2024.

Present: Smt. V.B. NIRMALA GEETHAMBA

CHIEF JUDGE.

(F.A.C.) ADDL. CHIEF JUDGE.

R.C.A. No.25 OF 2023

Between:-

1. Nagari Balram, S/o. Nagari Radhakrishna, aged about 35 years, Occ: Business, R/o. H.NO.5-8-47, Fateh Sultan Lane, Nampally, Hyderabad.

2. Nagari Sandeep, S/o. Nagari Radhakrishna, aged about 33 years, Occ: Business, R/o. H.No.5-8-47, Fateh Sultan Lane, Nampally, Hyderabad.

.. Appellants-Petitioners.

And

Arsid Manoj, S/o. late Arsid Ramchander, Hindu, aged about 56 years, Occ: Business, in shop No.8, Second Floor, Nagari Market, M.No.15-6-351, Nagari Market, Begum Bazar, Hyderabad & H.No.14-1-424, Aghapura, Hyderabad.

.. Respondent-Respondent.

Appeal against the orders dated 25.04.2023 in R.C. No.150 of 2015 on

the file of Principal Rent Controller, City Small Causes Court,

Hyderabad.

Between:

1. Nagari Balram.

2. Nagari Sandeep ...Petitioners

And

Arsid Manoj ...Respondent.

2 R.C.A. 25/2023

This appeal is coming before this Court on 05.01.2024 for a final hearing in the presence of Sri R.A. Achuthanand, Advocate for the

Appellants and Sri Pramod Kinhalkar, Advocate for Respondent and having been stood over the matter for consideration till this day; this

Court delivered the following:-

J U D G M E N T

This appeal is preferred by the petitioners/landlords under

Section 20(1) of the Telangana Buildings (Lease, Rent and Eviction)

Control Act, 1960 (for short "Act of 1960 wherever it is necessary) against the impugned order passed by the Principal Rent Controller, City

Small Causes Court, Hyderabad, in R.C. No.150 of 2015 dated 25.04.2023 regarding part of shop No.8 on the second floor, admeasuring 236.52 sq.ft., in the premises bearing door No.15-6-417, 418, 536, 537, 538 and 351 (new M.No.15-6-351), situated at Nagari Market, Begum Bazar,

Hyderabad (now onwards referred as “petition scheduled property” wherever it is necessary).

2.Appellants are the 'landlords', and the respondent is the 'tenant' of the petition scheduled property. For convenience's sake, the parties will be called "the petitioners and the respondent" as they arrive

before the trial court in R.C. No.150 of 2015.

3 R.C.A. 25/2023

The brevity of the pleadings of the case is as follows:

3.The petitioners applied under Section 4(1) of the Act of 1960 seeking fixation of fair rent @ Rs.25,000/- per month. The petitioners are the absolute owners of the petition scheduled property consisting of ground, first and second floors, each consisting of 236.52 sq.ft. The petitioners acquired the same under a registered gift settlement deed dated 31.7.2009 executed by their father, Nagari

Radha Krishna. They further submitted that the respondent was a tenant of the second floor and paying monthly rent of Rs.1150/- exclusive of electricity consumption charges. As per the terms of oral tenancy, the monthly rent is payable on or before the 5th of every month in advance. The petitioners further submitted that their father let out the premises to the respondent. The tenancy was orally attorned by the petitioners’ father in their favour. The respondent stopped paying the rent from 2013 onwards. There is a practice of issuing rent receipts, and petitioner No.2 gave a receipt on plain paper, which is in the respondent's possession. The petitioners further submitted that the petition scheduled property is situated in the Begum Bazar area, which is a known locality of commercial business and is near Feel Khana, Khan

Market Machi Market, Bartan Market, which is famous for plastic-ware business and the said market is an old market in the twin cities of 4 R.C.A. 25/2023

Hyderabad and Secunderabad. There is a massive turnover of business, which may run into corners. The petitioners further submitted that the rent payable by the respondent is very meager. There is an increase in land value and money, and the petition scheduled property would fetch at least Rs.25,000/- per month. The petition scheduled the property to be constructed more than 25 years back. Hence, pray to fix the fair rent to the petition scheduled property.

4.The respondent filed a counter, denied all the material allegations made in the petition, and admitted the jural relationship between him and the petitioners' father. He further submitted that initially, the monthly rent for the petition scheduled property was

Rs.900/- exclusive of electricity consumption charges, which was enhanced occasionally. The rent for the petition scheduled property is

Rs.1150/- per month. He further submitted that in 2009, the respondent paid a substantial amount of Rs.2,00,000/- as a deposit for the said premises, but no receipt was issued, and he did not insist on giving such a receipt due to the close relationship between them. He further submitted that the petitioners' father executed a lease deed on 25.6.2009 for 25 years commencing from 1.6.2009 for the second floor of shop No.6, having premises No.15-6-351. The said lease deed is in 5 R.C.A. 25/2023 possession of the petitioner, who did not come forward to register the same. He further submitted that the petition-scheduled property is outside the central location of Begum Bazar and is far from the main road. The petition scheduled property is a very old construction, and it is in a very bad condition. The landlord does not undertake repairs to the building, and the tenants of the petition-scheduled property only have to take care of the repairs. He further submitted that the petitioners have not provided any water or bathroom facility in the petition- scheduled property and has yet to even undertake whitewashing of the building. He further submitted that there needs to be a proper parking space for two-wheelers or four-wheelers. Customers must park their vehicles far away from the petition scheduled property, reducing the business lot. He further submitted that there is no dispute about the extent of the mulgi and that in light of the size, location and terrible condition of the petition scheduled property, the rent he paid is proper and reasonable. Hence, please pray to dismiss the petition with costs.

5.In enquiry, petitioner No.2 examined himself as PW-1 and marked Exs.P-1 to P-5. To rebut the evidence of the petitioners, the respondent himself was examined as RW-1, and Ex.R-1 marked.

6 R.C.A. 25/2023

6.Upon considering the rival contentions, perusing the evidence available on record, the learned Rent Controller fixed the fair rent regarding the petition scheduled property at the rate of Rs.6,000/- per month from the date of the petition, i.e. 19.6.2015. The respondent is directed to pay the fair rent @ Rs.6,000/- per month to the petitioners from the date of the petition and further directed to enhance the rent @ 5% for every year from the date of disposal of this R.C. on the existing rate of rent in respect of petition schedule premises. The rent arrears shall be paid to the petitioners by the respondent within six months from the date of this order.

7.Aggrieved by the impugned order, the petitioners preferred the present appeal.

8.Both counsels were present and heard.

9.Being the first appellate Court, this Court is inclined to appreciate the evidence on record afresh without relying on the trial court's findings.

7 R.C.A. 25/2023

10.Upon considering the rival contentions, perusing the material available on record, the points that arise for determination

before this Court are as follows:

1) Is there sufficient evidence to fix the fair rent at Rs.25,000/- per month regarding the petition scheduled property as prayed by the petitioners? If so,

2) To what relief?

Submissions of the counsel for the petitioners:

11.The counsel for the petitioners argued that there is no dispute regarding the jural relationship, quantum of rent and extent of the mulgi, and it is situated at Begum Bazar, Hyderabad. He further argued that as per Ex.P-4 certified copy of the lease deed, which was executed in the year 2013, the rent for the shop covered under Ex.P-4 is

Rs.25,000/- per month, and the said premises is near the petition scheduled property, but the Rent Controller did not consider the same.

Hence, please pray to fix the fair rent regarding the petition-scheduled property @ Rs.25,000/- p.m.

Submissions of the counsel for the respondent:

12.The counsel for the respondent argued that the respondent vacated the petition scheduled property and handed over the same to 8 R.C.A. 25/2023 the petitioners. The rent fixed by the Rent Controller is just and reasonable, and there is no irregularity. He further argued that the landlords should have examined the witness to prove the quantum of rent and to prove the contents of the Ex.P-4 lease deed. Therefore, the same cannot be taken into consideration. Hence, pray to dismiss the appeal.

13.Admitted Facts:

1)There is no dispute between the petitioners and respondent about the jural relationship as landlords and tenant.

2)There is no dispute about the quantum of rent regarding the petition scheduled property.

3)The rent at the time of filing of the present petition regarding the petition scheduled property is Rs.1150/- per month, and the respondent has not raised any dispute regarding the jural relationship and quantum of rent even at the appeal stage and he was vacated and delivered the petition scheduled property to the petitioners.

4) There is no dispute about the identification and extent of the mulgi. The scheduled property is 236.52 sq.ft.

9 R.C.A. 25/2023

POINT NO.1: Appreciation of evidence on record:

14.Petitioner No.2 was examined as PW-1, and as per the admission of PW-1, the petition scheduled mulgi is RCC construction. He further admitted that they were not used to whitewash, colour or paint the petition-scheduled property. As per the evidence of PW1, it is for the tenants to whitewash the mulgi. He further admitted that the petition scheduled property existed in the building belonging to the

Nagari Family. Besides the Nagari family, they also do business in the building complex. He further admitted that the petition scheduled property consists of the ground, first and second floors and has a staircase within the shop and a common staircase and passage outside the shop. He further admitted that he filed a certified copy of the lease deed Ex.P-4 of the existing shop in the said locality to show the existing rate in the petition scheduled property locality, and the owner of the mulgi covered under Ex.P-4 is one Smt. Nandini, who is relative to him.

He further admitted that the mulgi covered under Ex.P-4 is Rs.25,000/- per month. He further admitted that the property under Ex.P-4 has three 200 sq. ft floors., each. He denied the suggestion that each floor would fetch only Rs.8,333/- per month.

10 R.C.A. 25/2023

15.To rebut the petitioners’ evidence, the respondent was examined as RW-1. As per the evidence of RW-1, he is doing artificial jewellery business in the petition scheduled property, and his father obtained the petition organized property in 1990 from Nagari

Pandushah on oral lease. After his father's death, he paid the rent to

Radhakrishna, the petitioner's father. He further admitted that all kinds of businesses are done in the petition scheduled property locality, like general goods, imitation jewellery, dry fruits, Bartan Bazaar etc. He further admitted that Osmania Hospital is about 3 to 4 kilometers from his shop. He admitted signing the gift settlement deed before the

Registrar's Office as a second witness. He further admitted that he stated in R.C. No.137 of 2015 that he is doing business on the second floor of Nagari Market, which is adjacent to Saraswathi Fabrics. He further admitted that he is currently paying Rs.1,150/- per month towards rent for the second floor. He further revealed that his brother

Arshad Ravindeer is doing business on the ground floor of the petition- scheduled property. He further admitted that he had shown his rent in the income tax returns and had yet to file the same before the Court. He further admitted that I Additional Rent Controller, Hyderabad, passed an eviction order in R.C. No.137 of 2015 against him.

11 R.C.A. 25/2023

16.The evidence on record clearly establishes that the petition scheduled property is situated at Begum Bazar, Hyderabad. The respondent was doing imitation jewellery business and said the shop is located on the second floor of the premises bearing New No.15-6-351.

The area is famous for all types of businesses, i.e., food grains, dry fruits,

Barton Bazar, imitation jewellery, etc. It is renowned for its retail and wholesale business.

LEGAL PROPOSITIONS:

17. The counsel for the petitioners relied on a decision in a case

As per the decision in a case of “Kiron’s Partnership Firm, Secunderabad vs.

Mangalagiri Mohammed Ibrahim @ Babu Mia (died) per LRs.” 1wherein the

Hon’ble High Court of Andhra Pradesh held in para 17 that:

“The lower appellate court has reappreciated the evidence on record. Even though the parties connected with Exs.P-7 to P-10 were not examined, the lower appellate Court has considered those documents as they (Exs.P-7 to P-9) were certified copies relating to a transaction with a Nationalized Bank, the authenticity of which was not disputed. It has also considered Ex.P-10 relating to premises comprising 550 sq. ft. area for which a rent of Rs.9000/- was being paid, which works out to Rs.16/- per sq. foot. After weighing the documentary evidence adduced by both the sides, the lower appellate court has arrived at the conclusion that as on the date of filing of the petition, the prevailing rent of the demised premises was about Rs.16/- per sq. foot. On finding that at the said rate the total rental value will come to Rs.9600/- and that the learned Principal Rent Controller has fixed Rs.10,000/-, the lower appellate court has confirmed the same. On a careful consideration of the reasons assigned by the lower appellate Court, I am thoroughly satisfied that the same do not warrant any interference 12012 (4) ALT 481 12 R.C.A. 25/2023 of this Court in exercise of its revisional jurisdiction. Nothing is brought to the notice of this Court by the learned counsel for the tenants indicating that any of the findings rendered while fixing the fair rent suffer from irrationality. Therefore, the market rate of rent fixed by the Courts below also does not call for any interference.”

In view of the proposition of law in the above decision, in this case, if

Ex.P-4 is considered, which was executed in 2013 between Omkari

Rakesh and Smt. N. Nandini, about shop No.5 in premises bearing No.15- 6-538/3, on the ground floor having an extent of 200 sq.ft., in the same building, the rent for the said premises is Rs.25,000/- per month. The same was not denied by the respondent. Only he denied to the extent of the mulgi, quantum of rent. Admittedly, PW1 not examined executor of Ex.P4 to prove the quantum of rent though revealed that she is his relative.

18.As per the decision in the case of “Mohammad Ahmad vs.

Atma Ram Chauhan 2 ” reported in (2011) 7 SCC 755, where the Hon'ble

Apex Court had given standardized structures fixing guidelines and norms to minimize the landlord and tenant litigations. The Apex Court, in para No.21, held that:

21. "According to our considered view, most of these cases are filed because landlords do not get reasonable rent akin to market rent, then litigation is initiated on one ground or the other. Before saying omega, we deem it our duty and obligation 2(2011) 7 SCC 755 13 R.C.A. 25/2023 to fix some guidelines and norms for such litigation to minimise landlord-tenant litigation at all levels. These are as follows:-

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years, and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back, then the present market rate should be worked out either based on a valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, and electricity charges for the actual consumption of the tenanted premises and for the common area shall be payable by the tenant only so that the landlord gets the actual rent, out of which nothing would be deductible. If there is an enhancement in property tax, water tax, maintenance charges, or electricity charges, then the tenant shall also bear the same.

(iii) The usual maintenance of the premises, except significant repairs, would be carried out by the tenant only, and the landlord would not reimburse the same.

(iv)But if any major repairs are required to be carried out, then in that case, only after obtaining permission from the landlord in writing, the same shall be carried out, and modalities about adjustment of the amount spent thereon would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant, then the landlord shall not be entitled to bring any action for his eviction against such a tenant for at least 5 years. Thus, for a period of 5 years, the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or any other agency with expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind the location, type of construction, accessibility with the main road, parking space facilities available therein, etc. Care ought to be taken that it does not end up being a bonanza for the landlord." 14 R.C.A. 25/2023

In view of the proposition of law in the above cases, in this case, the respondent suffered eviction proceedings, vacated the petition- scheduled property, and handed over the same to the petitioners.

Therefore, in the above-said circumstances, the fixation of fair rent must be reasonable, and the Court should take into consideration the age of the building, extent, usage, and rental value in the vicinity of the petition scheduled property. The petition scheduled property has more than the extent mentioned in Ex.P-4, and the petition scheduled property is more than 25 years old building and has no amenities to scheduled property. Admittedly, it is situated in a commercial locality, where it is famous for wholesale and retail business. The respondent is doing imitation jewellery business in the petition scheduled property.

As per the version of RW-1, they lost the business due to the online shopping business. However, he did not produce any evidence to establish the same.

19.On the other hand, the respondent vacated the petition- scheduled property and handed over the same to the petitioners in view of the eviction orders passed against him in R.C. No.137 of 2015. The same was admitted by the petitioners. Once he was evicted from the petition scheduled property, considering the above facts and 15 R.C.A. 25/2023 circumstances, considering the evidence on record, this Court took a lenient view and fixed the fair rent for the petition scheduled property at Rs.6,000/- per month, and there is no any irregularity in the order of the Rent Controller and the same is confirmed.

POINT NO.2

20.In the result, the appeal is dismissed by confirming the order passed by the Principal Rent Controller, City Small Causes Court,

Hyderabad, in R.C. No.150 of 2015, dated 25.04.2023 by fixing the fair rent regarding the petition scheduled property at the rate of Rs.6,000/- per month from the date of petition, i.e. 19.6.2015. The respondent is directed to pay the fair rent @ Rs.6,000/- per month to the petitioners from the date of the petition and further directed to enhance the rent @ 5% for every year from the date of disposal of R.C. on the existing rate of rent regarding the petition schedule property. The arrears of rent shall be paid to the petitioners by the respondent within six months from the date of this order. Each party bears their own costs.

It was dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open Court on 9th January 2024.

Sd/-

(F.A.C.) ADDITIONAL CHIEF JUDGE

CITY SMALL CAUSES COURT

HYDERABAD.

Sarma

1 RCA.35 of 2023

IN THE COURT OF THE ADDITIONAL CHIEF JUDGE: CITY SMALL

CAUSES COURT: AT HYDERABAD.

Dated this the 1 st Day of APRIL 2024.

Present: Smt. V.B. NIRMALA GEETHAMBA

CHIEF JUDGE

(F.A.C.) ADDITIONAL CHIEF JUDGE.

R.C.A. No. 35 OF 2023

Between

Mohd Jaweed Ahmed S/o. Ameer Hussain, age:52 years, Occ: Business, Mulgi No.5-2-200/A/51/2, New Osman Gunj, Hyderabad .… Appellant/Respondent AND

Mahesh Chand Agarwal S/o. Late. Mohanlal Agarwal, age:50 years, Occ: Business, R/o. H.No.5-9-93&40, The Legend Annapurna Apartment, Hill Fort, Basheer Bagh, Hyderabad.

... Respondent/Petitioner

Appeal against the order dated 03.11.2023 in R.C. No.168 of 2015 on

the file of III Additional Rent Controller, City Small Causes Court,

Hyderabad.

Between:

Mahesh Chand Agarwal …Petitioner

And

Mohd. Jaweed Ahmed.. Respondent.

2 RCA.35 of 2023

This Appeal was listed before me for a final hearing in the presence of Sri Mohd. Turab Ali, Advocate for the Appellant and Sri Damodar Mundra, Advocate for Respondent and having been stood over the matter for consideration till this day, this court delivered the following:

J U D G M E N T

The unsuccessful respondent preferred the present Appeal under section 20(1) of Telangana Buildings (Lease, Rent & Eviction)

Control Act, 1960 [from now on be referred to as "Act of 1960" wherever necessary "in short"], regarding the premises bearing

Municipal No.5-2-200/A/50/2, admeasuring 520 sqft., New Osman Gunj,

Hyderabad (from now onwards referred to as 'petition scheduled premises/mulgi' wherever necessary) against the impugned eviction order passed by the learned III Additional Rent Controller, City Small

Causes Court, Hyderabad, in R.C. No.168 of 2015 dated 25.01.2019.

2.The appellant is the respondent/tenant. Respondent is the petitioner/landlord before the trial court. For convenience's sake, the parties from now on are called "petitioner" and "respondent" as they are arrayed before the trial court.

3 RCA.35 of 2023

BREVITY OF PLEADINGS:

3.The petitioner applied under Section 10(3)(a)(iii)(b) and 10(2)(iii) of the Act of 1960 regarding the petition scheduled premises against the respondent for eviction on the alleged grounds of bona fide requirement and acts of waste. The petitioner, along with his brothers, inducted the respondent as a tenant in the year 1996 on a monthly rent of Rs.1200/- and it was enhanced from time to time, and the rent for the petition scheduled premises as on the date of filing of the eviction petition is Rs.3500/- per month exclusive of electricity and other charges. He further submitted that they enhanced the rent to Rs.7000/- in 2005 and filed O.S. No.2234 of 2006 on the file of VI Senior Civil

Judge, City Civil Court, Hyderabad; the same was dismissed. Then, the

petitioner preferred an Appeal against the judgment and decree in A.S.

No.288 of 2009, which was allowed by the 13th Additional Chief Judge,

City Civil Court, Hyderabad, and the respondent was directed to pay arrears and interest. Then, the respondent preferred a Second Appeal

before the Hon'ble High Court, and the Second Appeal was allowed;

thereby, the suit was remitted to the trial court and dismissed for default. After that, they filed the present petition for eviction against the respondent, and the admitted rent for the scheduled premises is 4 RCA.35 of 2023

Rs.3,500/- per month. He further submitted that the petitioner required the petition scheduled premises (mulgi) to open an office of real estate business, and his requirement is genuine and pressing, but the respondent failed to vacate the petition scheduled premises. He further submitted that the respondent demolished the side wall of the scheduled premises, thereby joining the petition scheduled mulgi with the adjacent mulgi and after knowing the said fact, the petitioner protested the act of the respondent, but the respondent failed to remove the said wall and made other alterations without the consent and permission of the petitioner. Hence, he prays to allow the petition by evicting the respondent from the scheduled mulgi. Hence, the petition.

4.The Respondent filed a counter, admitted the jural relationship and quantum of rent, and admitted the civil disputes pending before the Hon'ble High Court regarding the premises bearing

No.5-2-200/A/51/2. He further submitted that the petitioner's requirement is not bona fide. He further submitted that the respondent neither caused any damage to the scheduled mulgi nor did any act of waste. As such, the petition is liable to be dismissed with exemplary 5 RCA.35 of 2023 costs. He further submitted that the respondent is a tenant of the petition scheduled premises/mulgi paying a monthly rent of Rs.3500/- and the total area of the petition scheduled premises is 520 sq. ft. He further submitted that the petitioner filed the present petition and tried to evict the respondent by hook or crook when the petitioner failed in his attempts and filed the present petition with fictitious grounds. Hence, he prays that the petition be dismissed with costs.

5. The petitioner was examined as PW1 and marked Exs.P-1 to

P-3 in enquiry. On the other hand, the respondent was examined as RW1 and marked Ex.R.1.

6.Upon considering the rival contentions and perusing the evidence on record, the learned Rent Controller allowed the eviction petition and directed the respondent to vacate and hand over the vacant and physical possession of the petition-scheduled premises to the petitioner within two months from the date of the order. Failing which, the petitioner is at liberty to evict the respondent by following due process of law. No costs.

6 RCA.35 of 2023

7.Aggrieved by the impugned eviction order, the unsuccessful respondent preferred the present Appeal on several grounds.

8.Both counsels were present and heard.

9. Upon considering the rival contentions perusing the material available on record, the points that arise for determination

before this court are as follows:

1) Does the petitioner require the petition scheduled premises/mulgi for doing Real Estate business to be bona fide?

2) Is there sufficient evidence on record to establish that the respondent has committed acts of waste regarding the petition scheduled premises? If so,

3) What relief?

10.Admitted Facts:-

1.There is no dispute regarding the jural relationship between petitioner and respondent as landlord and tenant

2.There is no dispute regarding the quantum of rent and identification of the petition scheduled premises.

3.It is also an admitted fact that the petitioner filed suit for eviction regarding arrears of rent vide O.S. No.2234 of 2006 dated 13.07.2009 on the file of VI Sr. Civil Judge, City Civil Court, Hyderabad, under Ex.P-2.

7 RCA.35 of 2023

4.Aggrieved by the judgment and decree, the petitioner preferred

Appeal vide A.S. No.288 of 2009 dt. 30.03.2012, the same was allowed on the file of the XIII Additional Chief Judge, City Civil Court,

Hyderabad, under Ex.P3.

5.Per the pleadings, the respondent preferred a Second Appeal

before the Hon'ble High Court, which was allowed and remitted back to

the trial court for further trial. Subsequently, the suit was dismissed for default.

6.It is admitted that the petitioner and his brothers inducted the respondent as a tenant in the petition scheduled premises bearing No.5- 2-200/A/50/2.

7.The respondent also possesses the premises bearing No.5-2- 200/A/51/2.

8.Originally, the R.C.No.168 of 2015 was dismissed on 25.01.2019.

Aggrieved by the said orders, the petitioner preferred Appeal vide

R.C.A. No.98 of 2019, where the petitioner also filed I.A. No.109 of 2022 for amendment of the petition scheduled premises and the same was allowed by this court and remitted the same to the trial court with a direction to the petitioner permitting him to amend the petition as prayed and accordingly amendment carried by the petitioner and respondent filed additional counter and reiterated the same.

9.The respondent did not prefer any revision to the orders passed in

R.C.A. No.98 of 2019, which attains finality.

10.In view of the orders passed in I.A. No.109 of 2022 in R.C.A. No.98 of 2019, the petitioner amended the petition scheduled premises 8 RCA.35 of 2023 bearing No.5-2-200/A/50/2, New Osman Gunj, Hyderabad in the place of premises bearing No.5-2-200/A/51/2.

Appreciation of evidence on record: POINT NO.1:

11.The specific contention of the petitioner is that he requires the petition scheduled premises for doing Real Estate business having six mulgies in his possession. Out of these, the mulgi under the respondent's occupation is suitable for his business, and the other mulgies are under the occupation of other tenants.

12.The counsel for the respondent cross-examined PW-1 at length, and nothing elicited contrary to the evidence on record that the petitioner's requirement is not genuine and bona fide. On the other hand, PW-1 specifically stated that he requires the petition scheduled premises as it is located in a business area for transport business. Out of six mulgies, four mulgies are given to other tenants for transport business, and one mulgi mechanic shop exists. The petitioner has no other properties under his occupation except for the said properties.

9 RCA.35 of 2023

13.On the other hand, RW-1 admitted in his cross-examination that he has not pleaded in his counter that, except for six mulgies, he have other properties. Thus, respondent neither pleaded nor established that petitioner is having other properties than the scheduled property.

14.As per the decision in the case of "Krishna Kumar Rastogi vs Sumitra Devi." 1 reported in A.I.R. 2014 SC 3635, where the Hon'ble

Apex Court held that:

“It is the landlord's choice to choose the place for the business that is most suitable for him. He has complete freedom in the matter. The landlord is the best judge of his requirements, and courts have no concern to dictate to the landlord how and in what manner he should live."

In view of the above proposition of law, the trial court rightly recorded the findings in favour of the petitioner, stating that the petitioner's burden is heavy to establish that he requires the petition scheduled premises for doing Real Estate business and that his requirement is bona fide pressing.

1 A.I.R. 2014 SC 3635 10 RCA.35 of 2023

15.Conversely, the respondent pleaded hardship for his eviction from the petition scheduled premises as his entire family depends on the income from the said mulgi. On the other hand, the respondent failed to prove that along with the petition scheduled premises, the petitioner have other property under his occupation, as such the requirement of petitioner is not bona fide one. Since the petitioner intends to do real estate business on the petition scheduled property, suitability has to be considered from the petitioner's point of view rather than from the respondent's point of view. On the other hand, the extent of the petition scheduled mulgi is 520 sq.ft., as admitted by the respondent. The respondent said nothing was elicited from the mouth of the PW1, that the petitioner's requirement is not bona fide, and that he has alternative accommodation for doing real estate business. Apart from above, respondent failed to establish that after filing eviction petition, the other mulgies under occupation of tenants fallen vacant, but petitioner not occupied the same for his business.

16.In the circumstances mentioned above, the petitioner's requirement was found to be bona fide, and there is no mala fide 11 RCA.35 of 2023 intention to evict the respondent from the petition's scheduled premises. On the other hand, if the respondent is not evicted from the scheduled premises, it will cause more significant hardship to the petitioner than the respondent being the landlord, as he has been sitting idle since 2005 and intends to do Real Estate business in the scheduled premises belonging to him. Therefore, this court safely concluded that the trial court rightly appreciated the evidence on record and concluded that the requirement of the petitioner is bona fide, and the same is upheld by this court, and there is no interference of this court. Accordingly, this point is answered in favour of the petitioner and against the respondent.

POINT NO.2:

17.As per the version of the petitioner, the respondent is already in possession of the adjacent mulgi and demolished the side wall of the petition scheduled mulgi, thereby joining the petition scheduled mulgi with the adjacent mulgi and making other alterations in the petition scheduled mulgi without consent and permission of the petitioner and violated the terms of the tenancy. The counsel for the respondent argued that the petitioner should have pleaded in his 12 RCA.35 of 2023 petition on what date he came to know about the removal of the side wall in between two mulgies. He further argued that the respondent did not remove the wall and was inducted into the petition scheduled premises. The adjacent mulgi was also given to him by the petitioner and his brothers, who created a way for it. Therefore, there is no act of waste. In the present case, the burden lies on the petitioner to establish that the respondent has committed an act of waste. To demonstrate this, the petitioner examined RW1, in turn, RW1 admitted that there is a way to go between the petition-scheduled mulgi and adjacent mulgi from the inside. The respondent must establish that he was inducted by the petitioner and his brothers on the petition- scheduled premises and adjacent mulgi and as on the date inducting him as tenant, there is a way in between two mulgies. However respondent did not examine any neighbour or tenant of adjacent mulgies to prove his version. On the other hand, RW1 admitted in his cross-examination as follows:

"I have not pleaded in my counter or mentioned in my chief affidavit that I have made a way between the petition scheduled mulgi and adjacent mulgi from inside with the landlord's consent."

The respondent did not plead in his counter that two mulgies were given by the petitioner and his brothers at the time of inducting him as 13 RCA.35 of 2023 a tenant regarding the petition scheduled property. RW1 further admitted in his cross-examination as follows:

"It is true that I am under an obligation as to the terms of the tenancy that I cannot damage the petition-scheduled property."

RW1 denied suggesting that he remove the wall and create a way between two mulgies without the landlord's consent. RW1 rejected the suggestion that the other mulgi, apart from the petition scheduled premises, was illegally obtained by him from his father-in-law and that he is not the tenant of the petitioner in the other mulgi. Therefore, it clearly shows that the respondent got possession through his father-in- law, i.e., adjacent mulgi bearing No.5-2-200/A/51/2, whereas the petitioner inducted the respondent into the petition scheduled bearing

No.5-2-200/A/50/2. The litigation regarding the premises bearing No.5- 2-200/A/51/2 is pending before the Hon'ble High Court. Meanwhile, the respondent removed the wall between the two mulgies and created a way as per the photographs he filed under Ex.R1. Therefore, there is sufficient evidence on record to establish that the respondent made a way in between two mulgies without the consent of the petitioner/ landlord and violated the tenancy terms; therefore, he is liable to be evicted from the petition scheduled mulgi. Thus, the trial court rightly 14 RCA.35 of 2023 concluded that the respondent disproved the petitioner's requirement and the act of waste by adding cogent evidence. In the above circumstances, the respondent is liable to be evicted from the petition scheduled for Mulgi. Accordingly, this point is answered in favour of the petitioner against the respondent.

POINT No.3:

18.In view of this court's findings under points Nos. 1 and 2, the petitioner is entitled to evict the respondent from the petition- scheduled premises.

19.Given the discussion above, there is no infirmity in the order of the learned Rent Controller, and the same is confirmed. Thus, the

Appeal is liable to be dismissed without costs.

RESULT:

20.As a result, the Appeal is dismissed without costs by confirming the order passed by learned III Additional Rent Controller, City Small Causes

Court, Hyderabad, in R.C. No.168 of 2015 dated 03.11.2023. The respondent is directed to vacate and hand over vacant and physical possession of the petition-scheduled premises to the petitioner within two months from this 15 RCA.35 of 2023 order, failing which the petitioner is at liberty to evict the respondent by following due process of law.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by me

in the open Court on April 1st, 2024.

Sd/-

(F.A.C.) ADDITIONAL CHIEF JUDGE,

CITY SMALL CAUSES COURT,

HYDERABAD.

Sarma