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Sugui Bai @ Shakuntala Bai and ors. Vs. Rafat Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 1750 of 1997
Judge
Reported in1998(1)ALD693; 1998(1)ALT359
Acts Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960 - Sections 10(2) and 22; Code of Civil Procedure (CPC), 1908 - Sections 115 and 151; East Punjab Rent Restriction Act, 1949 - Sections 15(5); Constitution of India - Article 133; Capital of Punjab (Development and Regulation) Act, 1951 - Sections 2
AppellantSugui Bai @ Shakuntala Bai and ors.
RespondentRafat Ali
Appellant Advocate Mr. K.G. Krishna Murthy, Adv.
Respondent Advocate Mr. Mahmood Ali, Adv.
Excerpt:
.....clearly establishes that the tenant was a defaulter, had caused damage to the premises and causing nuisance to the landlords and other occupiers. taking into consideration the hardship pleaded by the tenant and since it is difficult to get alternative accommodation in places like hyderabad within a reasonable time that too on reasonable rents without paying heavy advances, justice demands that tenant shall be given some reasonable time. accordingly, time is granted to the respondent-tenant till the end of september, 1998 to vacate the premises in question and put the landlords in vacant possession of the premises- during this period, the tenant shall be regular in payment of rents, shall maintain the premises in good condition and shall not sub-lease the premises and he shall file an..........exs.rl to r82.5. basing on the above oral and documentary evidence, both the courts gave concurrent findings that the monthly rent agreed for the schedule premises was rs-250/- but not rs.650/- the respondent-tenant never committed any wilful default of payment of rents to the landlords nor did he commit any acts of waste resulting in damage to the demised premises and, thus, dismissed the claim of the landlords, against which the landlords preferred this revision.6. to prove that the tenant was paying the rent at the rate of rs.650/- per month and committed default in payment of rent for the period from november, 1986 to 1988, the landlord produced exs.pl to p5, the counterfoils showing the payment of rent at the enhanced rate. whereas the tenant produced exs.r2 to r68, the mo.....
Judgment:
ORDER

1. This Revision is directed against the order dated 7-4-1997 in RANo.484/93 on the file of the Additional Chief Judge. City Small Causes Court, Hyderabad confirming the (sic dissmisal of petition for) eviction of the respondent-tenant ordered in R.C.No.443/88, dated 13-9-1993 on the file of the III Addl. Rent Controller, Hyderabad.

2. A few facts that are necessary to dispose of this Revision petitioners are as follows:

The petitioners are the landlords and the respondent is their tenant. The petitioners own the schedule malgi bearing Municipal No. 15-9-561/5 and 6 situated at Mahboobgunj, Hyderabad, and the same was let out to the respondent on monthly rent of Rs.650/- w.e.f 1-11-1986 payable by 5th of every succeeding English calender month. The petitioners alleged that the respondent never paid the rent regularly and committed wilful default in payment of rents from 1-11-1986 to 30-4-1988 i.e. for a period of 18 months amounting to Rs.11,700/-. Whenever the respondent paid the rents a receipt was issued. According to the petitioners the demised premises was constructed on the open well after closing it partly with R.C.C. slab and the well under it is still in existence. The respondent is running heavy machinery in the premises resulting in serious vibration and, thus, causing damage to the demised premises and danger to the human lives. The negligent and reckless use of the schedule premises resulted in damaging the entire shah bad flooring which was broken into pieces. Thus, the respondent is committing acts of waste which are likely to impair materially the value and utility of the demised premises. The petitioner also alleged that the respondent and their men are very often picking up quarrels with the petitioners and their men who are residing in the upstair portion of the schedule premises. Further the respondent is running the machine during nights continuously and thus creating nuisance to the petitioner and others in the vicinity.

3. The respondent-tenant in his counter denied the quantum of monthly rent and issuance of receipt by the petitioners-landlords for the rents paid by him. According to him, the agreed rent was Rs.175/- which was enhanced to Rs.250/- subsequently about 12 years back. He was regular in payment of rents till March, 1988. As there was perfect understanding, no rent receipts were issued to him. According to him, originally the father of the Petitioners 2 to 4 and husband of the 1st petitioner, namely Babulal, was the landlord. Even after his death, the 3rd petitioner had collected rents from the respondent upto March, 1988. The respondent submitted that with the consent and agreement of Mr. Babulal only he installed the machinery and carrying on business peacefully. He denied the allegations of committing of acts of waste, negligent use of (lie demised premises, causing nuisance and picking up of quarrels with the petitioners and their men. On the other hand, he alleged it is the petitioners and their men who are always quarrelsome. On 15-4-1988, when the respondent as usual tendered the rent for April, 1988, the landlords refused the same and demanded to vacate the premises saying they got an offer of rent of Rs.1000/-. Though there was mediation by the elders the petitioners refused to receive the rents. The respondent alleged that the petitioners prevented the respondents from opening the door of the demised premises by putting stones in front of it on 24-4-1988 and then he made a complaint to the police. When the 3rd petitioner brought some goondas to evict him, he filed O.S.No.1614/88 on the file of VIII Asst Judge, City Civil Court, Hyderabad for injunction and obtained interim injunction. He had also remitted the rent for the month of April, 1988 by MO. which was returned as refused. The respondent submitted that when he got issued a notice on 30-4-1988 to the 3rd petitioner, they replied the said notice setting the present false pleas. He denied the wilful default and any damage to the demised premises as alleged by the petitioners.

4. Before the Trial Court both the parties adduced both oral and documentary evidence. On behalf of PWs.l to 3 were examined and Exs.Pl to P55 were marked. On the side of the respondent, the respondent himself examined as RW1 and got marked Exs.Rl to R82.

5. Basing on the above oral and documentary evidence, both the Courts gave concurrent findings that the monthly rent agreed for the schedule premises was Rs-250/- but not Rs.650/- the respondent-tenant never committed any wilful default of payment of rents to the landlords nor did he commit any acts of waste resulting in damage to the demised premises and, thus, dismissed the claim of the landlords, against which the landlords preferred this Revision.

6. To prove that the tenant was paying the rent at the rate of Rs.650/- per month and committed default in payment of rent for the period from November, 1986 to 1988, the landlord produced Exs.Pl to P5, the counterfoils showing the payment of rent at the enhanced rate. Whereas the tenant produced Exs.R2 to R68, the MO commission receipts and the refused MO. coupons to show that he was paying rents at the rate of Rs.250/- per month and not Rs.650/-. Regarding causing of nuisance alleged by the landlords, the Courts below dis-believed it for the reason that the respondent-tenant had fixed the lathe machinery in the year 1970 and became the tenant, whereas the petitioners started complaining of the nuisance in the year 1988. The Trial Court found that the photographs produced about the position of the premises shows some gap between the floor and the shutter of the demised premises but yet held that it is not a conclusive proof to hold that the respondent had removed the shahbad flooring in the premises. The Trial Court observed that when the premises was leased out in the year 1970, to raise a plea by the petitioners in the year 1988 that the tenant, had caused damage to the premises or causing nuisance to the landlords and other neighbours is incorrect. The Trial Court also observed that in the absence of evidence of an expert Engineer it cannot be said that there is damage to the building. The Trial Court disbelieved the evidence of PW1 who spoke about the vibration to the schedule premises due to the operation of the machines by the respondent and causing nuisance as spoken to by PW2, who stated that the respondent runs his business till 1 'O' clock in the mid-night. He further stated that the respondent and their men till late in the night will be hammering with iron rods and, thus, causing very loud sound. But the Trial Court refused to accept the same. The Trial Court refused to accept either the acts of waste or nuisance for the reason that the landlords never made any complaint as to the nuisance lo any authorities at any time. The Trial Court also held that the landlords did not produce any material showing that the tenant is quarrelsome with the landlord and other neighbours. The same was accepted by the Appellate Court.

7. Sri K.G. Krishna Murthy, learned Counsel for the Revisioner Petitioner contended that from the evidence of PW1, it is clear that the damage to the property in question and causing of nuisance by the tenant was established. He also contended that the premises in question was leased not for purpose of installing lathe machines, but leased out for some other purposes. The petitioner-landlady underwent operation and after return from the hospital when started living in the premises, she found that the tenant was causing much nuisance. It is also found that the tenant is a chronic defaulter. According to the learned Counsel for the landlords though the tenant is entitled to continue in occupation of the premises he has no business either to cause damage to the premises or create nuisance. He also contended that the Trial Court as well as the appellate Court did not consider the evidence properly and while considering the other evidence they drew inferences contrary to what the evidence warrants. He also urged that merely because both the Courts held against the landlords that does not mean revision is not maintainable. In appropriate cases, this Court can interfere. Further whenever waste or damage to the premises or nuisance caused is established, eviction can be ordered. To support his contention he placed reliance on the following decisions in 'Ram Dass v. Ishwar Chander', : AIR1988SC1422 , 'Pat Chand Jain v. Chandra Kama Khosla', : AIR1991SC744 . 'Ramesh Kumar v. Kesho Ram', : AIR1992SC700 and 'K. Veeraswamy (died) per L.Rs. v. G. Nagarathnamma (died) per LRs', : AIR1993AP333 . Thus he urged that the revision is allowed and eviction of the respondent-tenant be ordered.

8. On the other hand, Mr. Mahmood All, learned Counsel for the respondent-tenant contended that the Revision is filed against the concurrent findings of fact and the same is not maintainable as the petitioner has not shown any illegality or penersity in the orders of the Courts below. He further contended that the lathe machines in the premises has been in existence right from the date of occupation of the premises by the respondent and that as the landlady occupied the schedule premises in 1980, she cannot plead that the running of machine is causing nuisance. He further contended that when there are 16 shops in the schedule premises, it is not open to her to complain against the respondent only and when the premises is let out for commercial purpose, it is needless to say that by installing machines there will be some amount of nuisance and it cannot be a ground to seek his eviction. He also contended that when the schedule premises belongs to seven other sisters of the petitioner also, the filing of eviction petition by the petitioner-land lady alone without adding the co-owners is not maintainable. Lastly he contended that the findings of both the Courts below is based on proper appreciation of evidence which does not call for any interference of this Court and hence the same is liable to be dismissed. To support his contentions he placed reliance on Ihe following decisions in 'S. Sarvaiah v. Joseph (died) and others' ', 1997 (3) AID 835, 'K.A. Anthappai v. V. Ahammed' AIR, 1992 SC 1696 and 'Rajbir Kaur v.

9. Since this case is fought by both sides with all seriousness and they relied several decisions to support their contentions, I have gone through the evidence made available and perused the orders under challenge. No doubt the orders under challenge are concurrent in nature. Both Ihe Courts below refused to grant the request made by the landlords I am aware that Ihe scope of Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 is limited. But that does not mean once for all revision powers are barred and in appropriate cases, this Court can interfere and mould the relief. This view of mine is supported by the decision of the Supreme Court in ''Ram Das v. Ishwar Chander' (supra) wherein the Supreme Court held as follows :-

'(A) Easf Punjab Rent Restriction Act (1949) Section 15(5) - Revision - Powers of High Court - In appropriate case High Court can reappraise evidence if findings of appellate Court are found to be infirm in law.

(B) East Punjab Rent' Restriction Act (1949) Section 15(5) - Revision - High Court taking into consideration subsequent event - No interfere, as Court can take a cautious cognizance of subsequent events to mould relief (Constitution of India, Article 133).'

In the case of Rai Chand Jain v. Chandra Kanta Khosla (supra), the Supreme Court took similar view which is extracted below:

'Revision - Power conferred on High Court under the Act - wider than that under Section 115 CPC - Findings of appellate authority not based on evidence on record - High Court can review them''

While interpreting the scope of Section 15(5) of East Punjab Urban Rent Restriction Act (3 of 1949) which is analogous to Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, the Supreme Court held as follows:

'On a plain reading of this provision it is clear and transparent that the revisional jurisdiction conferred on the High Court is much wider than the jurisdiction provided under Section 115 of the Code of Civil Procedure. The High Court while exercising this jurisdiction is competent not only to see the irregular or illegal exercise of jurisdiction but also to see to the legality or propriety of the order in question. In the instant case the High Court has found that the findings of the Appellate Authority in so far as it held that the demised premises were not let out for residential purposes and the same were let out for the purpose of running a press under the name and style of M/s Navneet Parkashan were not at all correct and per se against the evidences on record. II is further held that the demised premises were located in a residential part of the sector in the city and letting out of such residential building for the purpose of trade in violation of the Capital of Punjab (Development and Regulation) Act, 1951 would not bring it within the fold of non-residential building as defined in clause (d) of Section 2 of the said Act. The High Court also held that the building was let out to the tenant for residential purposes and not for commercial purposes and so the High Court reversed the findings of the Appellate Authority under issues Nos. 1 and 2. Undoubtedly, the High Court reversed the findings of the Appellate Authority as the same are perverse and contrary to the evidences on record. The High Court in exercising its power under Section 15(6) of the said Act is within its jurisdiction to reverse the findings of fact as the same were improper and also illegal. It is appropriate to refer in this connection to the decision in the case of Ram Dass v. Iswar Chander, : AIR1988SC1422 where it has been held that Section 15(5) of the Act enables the High Court to satisfy itself as to the 'legality and propriety' of the order under revision, which is, quite obviously, a much wider jurisdiction. That jurisdiction enables the Court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional Court is not 'a second Court of first appeal (see Dattopant Gopalrao Devakate v. Vithalrao Marutirao (AIR 1975 SC 111) )'. Therefore this content is without any substance. It is appropriate to mention in this connection the decision rendered by this Court in the case of Vinod Kumar Arora v. Smt. Surjit Kaur, : [1987]3SCR552 where it was held that the findings of the Rent Controller and the Appellate Authority are vitiated by inherent defects. The High Court was, therefore, justified in taking the view that those findings have no binding force on the revisional Court. It was further held that the rule when the Courts of fact render concurrent findings of fact, the High Court would not be entitled to disregard those findings and come to a different conclusion of its own would apply where the findings have been rendered with reference to facts. Similar observations have been made by this Court in the case of Faquir Chand v. R.R. Bhanot : [1973]3SCR454 (supra) where it has been held that there is no estoppel because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of tie lease of the land. In any case there can be no estoppel against the statute.''

This Court in the case of 'A'. Veeraswamy v. G. Nagarathnamma' (supra) explained the scope of Section 22 of the Act 15 of 1960 vis-a-vis Section 115 CPC regarding power of High Court in revision under Rent Control Act and held the power of High Court is wider than the power of revision under Section 151 CPC and in the given circumstances, the High Court can interfere and reappraise evidence if the findings of the appellate Court are infirm in law. In the case of 'Kamesh Ktimar v. Kesho Ram' (supra), the Supreme Court held that while moulding the relief, subsequent events can be taken note of provided such subsequent events have material bearing on the entitlement of the parties.

10. This Court in ' 'A. V.R Seshagiri Rao v. Garlapali Jagannaciha Murthy', 1986 (2) ALT 510 held that the tenant of a portion of a premises can be evicted only on the ground of nuisance to occupiers of other portions in same premises and not on the ground of right of landlord.

11. If we compare the evidence adduced in this case and reading of the same by both the Courts below, it can be said without hesitation that the Courts below are not justified in ignoring the evidence available which warrants this Court to hold that the tenant was defaulter and he had caused nuisance. The landlords proved that the tenant caused damage to the demised premises by causing holes and leaving spaces between the shutter and the wall as seen from the Commissioner's Report. The lower Appellate Court blindly believed the findings given by the Trial Court and confirmed its order. Both the Courts proceeded assuming that the tenant came in possession of the demised premises in the year 1970 whereas eviction petition was filed in the year 1988 and as such it is not open for the landlords to plead damage and nuisance and the same cannot be accepted. It is not the dale of creating tenancy which counts to determine nuisance but it is the time immediately prior to the filing of eviction petition any nuisance existing, that is to be considered. Damage to the building has been spoken to by the Commissioner in his report and causing of nuisance to the neighbours including the land-lords has been spoken to PWs.l and 2. The evidence available on record proved the allegations made by the landlords. But the Courts below took a different view. Regarding the plea of the tenant that the demised premises not only belongs to the petitioner-landlady but also to 7 other sisters of the petitioner-landlady and as such eviction petition by one person is not maintainable and contended that the other co-owneis should have been filed. To support his contention he placed reliance on a decision of this Court in 'S. Sarvctiah v. Joseph' (supra) which is of no way helpful to the tenant, as there is sufficient material to hold that the tenant recognised the petitioners herein as his landlords by tendering rents. The other decisions relied on by the learned Counsel for the respondent have also no application to the case on hand. The findings of the Courts below are quite arbitrary, perversive and capricious. The orders under challenge cannot be said as free from legal lacunas. The Courts failed to take into consideration the events started subsequent to the leasing out the premises namely causing nuisance prior to the filing of eviction petition. The evidence given clearly establishes that the tenant was a defaulter, had caused damage to the premises and causing nuisance to the landlords and other occupiers.

12. Having found that the orders under challenge suffer from illegality, the same deserves to be set aside. Accordingly, the CRP is allowed and the orders under challenge are set aside and consequently, the eviction sought by the landlords is granted.

13. The learned Counsel for the respondent-tenant submitted that in case the Court orders evicfion of the tenant some reasonable time may be granted to the tenant. In this connection, Ihe learned Counsel for the landlords, Sri K.G.Krishna Murthy, submitted that six months time may be granted. Taking into consideration the hardship pleaded by the tenant and since it is difficult to get alternative accommodation in places like Hyderabad within a reasonable time that too on reasonable rents without paying heavy advances, justice demands that tenant shall be given some reasonable time. Accordingly, time is granted to the respondent-tenant till the end of September, 1998 to vacate the premises in question and put the landlords in vacant possession of the premises- During this period, the tenant shall be regular in payment of rents, shall maintain the premises in good condition and shall not sub-lease the premises and he shall file an affidavit to this effect before this Court within sixty days from to-day, failing which the lime now granted shall stand cancelled. There shall be no order as to the costs in this CRP.


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