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Judgment
The petitioner is the tenant in this civil revision petition filed u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, for short ''the Act''. He is aggrieved by an order passed by the learned Principal Subordinate Judge, Vijayawada in RCA No.33 of 1982, dt 4-2-1994 reversing the order in RCC No. 84 of 1980 on the file of the Principal District Munsif, Vijayawada dated 23-1-1982.
The petitioner is the tenant and the respondent is the landlord. The respondent herein filed petition u/s 10(2)(1) of Act XV of 1960, seeking eviction of the petitioner herein from the petition schedule premises on the ground that the petitioner herein had committed wilful default in payment of rent and also on the ground that the petitioner herein had secured alternative building bearing No. 11-62-67 in the same road very near to the petition schedule premises and is carrying on business exclusively in the building bearing No. 11-62-67. Thus the respondent herein sought eviction of the petitioner from the petition schedule premises on both the grounds. The petitioner herein opposed the application. It is the case of the petitioner that the returns shall be paid whenever demanded by him. The rents used to be collected in lumpsum manner. There was never any demand from the respondent-landlord and failure by the petitioner herein to comply with such demand. There is no default whatsoever muchless any wilful default in payment of rents is the case of the petitioner. The petition is filed to harass and only with a view to enhance the rent in respect of the premises is his further case. It is the case of the petitioner that the building bearing No. 11-62-67 is secured as an additional accommodation and not an alternate accommodation. The plea of the respondent-landlord that the petitioner herein is carrying on business exclusively in the said building is denied.
On the above pleadings and on the basis of the material available on record, the learned Rent Controller held that the petitioner herein had committed wilful default in payment of rents and the conduct in making payment regularly in irregular manner would show supine indifference and negligence in payment of rent. On that ground, the learned Rent Controller ordered the eviction of the petitioner herein from the petition schedule premises. So far as the question relating to the petitioner herein securing alternate accommodation, the learned Rent Controller held that the petitioner herein secured premises bearing No. 11-62-67 only as an additional accommodation for the business but not as an alternative accommodation. Accordingly rejected the plea of the respondent-landlord for eviction of the petitioner. However, the learned Rent Controller directed the eviction of the petitioner herein from the petition schedule premises on the ground of his committing wilful default. Both the parties preferred RCAs. against the said judgment. RCA33/82 was filed by the respondent-landlord and RCA35/82 by the petitioner herein.
In the appeal under the revision, the appellate Court framed the point for consideration in the following manner:
"Whether the accommodation secured by the respondent is only an additional accommodation and not an alternative accommodation warranting dismissal of eviclion and whether it has ceased to occupy the schedule building four months prior to filing of the petition ?
There is no dispute whatsoever in the instant case that the petitioner herein secured building bearing D.No. 11-62-67 situated at Canal Road, Vijayawada for the purpose of doing his business. The only question is as to whether the petitioner herein secured the said building as an alternative accommodation or an additional accommodation. In the rent control case, the respondent-landlord in categorical terms pleaded that the petitioner herein has secured alternative building bearing D.No. 11-62-67 in the same road near to the petition schedule tenanted premises and he is carrying business exclusively in the said building. In the counter filed by the petitioner herein in the rent control case, it is stated that the said premises bearing No.11-62-67 "is also taken on lease as the business was increased and as such it cannot be said that the respondent has secured alternative accommodation. It is not correct to say that the respondent is carrying on the business exclusively in (he said building."
In view of the admitted fact that the petitioner herein had secured another premises for the purpose of continuing his business, the burden would lie upon him to show that the premises secured by him is only an additional one but not an alternative one. It is the categorical case of the respondent-landlord that the said premises is secured by the petitioner herein as an alternative accommodation. PW1 in his evidence stated so to the same affect in categorical terms. The respondent stated in the evidence that the building was taken on lease for additional accommodation and they did not close their business in the petition schedule shop. In support of their case, Exs.87 to B13 showing the payment of electricity consumption charges are produced. As noticed by the appellate Court, it is clear from the evidence that the petitioner tenant is having two godowns located in Pettiswami street bearing D.No. 11-51-30 and the other is at Brahmin street bearing D.No. 10-19-20 and both the godowns are vacated by the petitioner tenant. It is also in evidence on record that the father of the petitioner tenant leased out the portion of his building to the tenant and his father is also one of the partners in the petitioner''s firm. Under those circumstances, the appellate Court rightly held that the burden is heavily upon the petitioner tenant to prove that D.No. 11-62-67 is obtained by the petitioner tenant only as an additional accommodation and not as an alternative accommodation.
The lower appellate Court rightly held that there is no evidence whatsoever produced by the petitioner tenant to show that there is an increase in the volume of his business and for that reason need had arisen to secure an additional accommodation. The lower appellate Court observed that the best piece of evidence which could have been produced by the petitioner-tenant to clinch the issue is Income Tax returns. But they are not produced in this case. In what manner can it''be said that the petitioner herein had secured the said premises only as an additional accommodation. He should have substantiated this plea by leading cogent and relevant evidence. The petitioner tenant could have easily produced evidence showing the turnover of his business by producing the account books. It is not as if no account books are maintained by the petitioner-tenant firm. Even in the counter, the plea of additional accommodation is advanced in a very clear and skillful manner. It is not stated in categorical terms that what is secured by the petitioner-tenant is an additional accommodation and not an alternative accommodation.
The mere fact that the petitioner herein had not vacated the petition schedule premises is of no consequence to decide the issue as to whether the petitioner herein had secured additional accommodation or alternative accommodation. The petitioner is not utilising the petition schedule premises for the prescribed period itself would constitute a ground for eviction. But the eviction of the petitioner herein is not sought for by the respondent-landlord on that ground. The eviction of the petitioner herein is sought on the ground of the firm securing an alternative accommodation." The petitioner-tenant miserably failed to establish his case that it is only an additional accommodation but not an alternative accommodation secured by him. For the aforesaid reasons, the conclusion is inescapable that the petitioner-tenant had secured an alternative accommodation for the purpose of running his business. The finding and the order of the appellate Court does not suffer from any infirmity warranting interference of this Court in exercise of its revisional jurisdiction. The finding is based upon the material available on record, and the same is recorded after proper appreciation of both the documentary and oral evidence available on record.
However, it is not the end of the matter. In this Court, the petitioner filed an application vide CMP No. 16509 of 1996 purporting it to be under Order 41 Rule 27 read with Section 151 of the CPC praying the Court to receive the certificate of registration, dated 20-6-1978 issued in favour of the petitioner-firm and the Income Tax assessment order for the Assessment year 1986-87 relating to M/s. Sri Laxmi Satyanarayana Jute company as additional evidence. In the affidavit, it is stated that in the year 1978 the petitioner firm had taken the premises D.No. 11-62-67, Canal Road, Vijayawada as its Branch office and the same is proved by the Certificate of Registration given under the A.P. General Sales Tax Act, 1957 on 20-6-1978. The petitioner firm had subsequently vacated the said premises in the year 1985 as the owner of the building wanted to demolish the building and make a new construction. After the construction of the new building with the same number 11-62-67 it was leased out to M/s. Sri Laxmi Satyanarayana Jute Company in the year 1986. This fact is proved by the Income Tax assessment order for the assessment year 1986-87 relating to M/s. Sri Laxmi Satyanarayana Jute Company. The said Jute company has been in continuous possession in the premises even till today. It is the case of the petitioner that these subsequent events which are borne out by clinching documentary evidence would have a bearing upon the issue lhat arises for consideration in the civil revision petition. It is the case of the petitioner that since the firm had surrendered the alternative or additional accommodation as the case may be, the cause for eviction on the ground of petitioner securing an alternative accommodation does not survive.
It is required to notice that in the affidavit filed in support of the application to receive the document, no reason is assigned by the petitioner as to why these facts were not brought to the notice of the appellate Court It is simply stated that "unfortunately these subsequent events which are borne out by clinching documentary evidence were not brought to the notice of the appellate Court and consequently an adverse finding was recorded by it". Even this affidavit and application is filed in this Court only on 30-10-19%. The application is opposed by the respondent.'' In the counter-affidavit, it is stated that the petitioner herein failed to submit these documents which are now sought to be filed in this Court before the appellate Court. Since no reasons are assigned by the petitioner, the documents cannot be received into evidence at this stage. It is further stated that the attempt on the part of the petitioner would amount to introducing a new case or to bring any new fact which cannot be permitted at this juncture.
Sri T. Veerabhadmyya, learned Counsel for the petitioner submits that the affidavit filed by the petitioner is in two parts, namely, (1) bringing the subsequent events to the notice of this Court about the petitioner surrendering the possession of alternative/ additional accommodation secured by him during the pendency of the proceedings, (2) prayer to receive the two documents mentioned therein as additional evidence in support of the plea of surrender of additional/ alternative accommodation. It is submitted that the subsequent events during the pendency of the proceedings can always be brought to the notice of the Court, particularly if such events have a direct bearing on the survival of cause for eviction. The learned Counsel for the respondent-landlord Sri Subba Rao vehemently opposed the application and submits that it is not open to a party to bring the subsequent events to the notice of the Court at the sweet will of the party concerned. The party is required to act diligently in bringing the facts to the notice of the Court It is submitted lhat if the petitioner had surrendered the alternative accommodation secured by him in the year 1985, nothing prevented the petitioner to bring the same to the notice of the appellate Court, inasmuch as the appeal was pending on the file of the appellate Court from 1982 to 1994. Sri T. Veerabhadrayya placed reliance on the decision of the apex Court in Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , wherein the Apex Court held that the subsequent events to the institution of the proceedings would'' have to be taken into consideration, The Apex Court observed as follows:
"We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence, that the right to relief must be judged to exist as on the date of suit or institutes the legal proceeding. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to reliefer the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules or procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the partyjust and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as material bearing on the right to evict, in view of the inhibition written in to Section 10(3)(iii) itself We are not disposed to disturb this approach in law or finding of fact.,''''
In Ramesh Kumar Vs. Kesho Ram, , the Apex Court held that "when subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may. having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 of Older 19 CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds lhat having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure." However, the Apex Court in the said judgment observed:
"Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a ''cautious cognizance'' of. the subsequent changes of fact and law to mould the relief"
In Kamleshwar Prasad Vs. Pradumanju Agarwal (dead) by LR''s., , arising under the provisions of UP. Rent Act XIII of 1972 observed:
"The fact that the landlord needed premises in question for starting a business which fact has been found by the appellate authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bow fide need cannot be said to have lapsed....."
In T. Sriramulu Vs. Diwan Eknathrao and Another, , a Division Bench of this Court took the view that a landlord acquiring exclusive right in the schedule premises in the partition amongst the members of the Hindu undivided family during the pendency of the eviction petition can come on record as the petitioner in the place of original landlord filing petition for eviction in the capacity of Kartha of Hindu undivided family. It so happened in the said case that an eviction petition was filed by the landlord in the capacity of Kartha of Hindu undivided family. During the pendency of the petition, there was a partition amongst joint family members and in the partition, the suit schedule premises had fallen to the share of one of the coparceners and the said coparcener, after the partition filed an application to come on record in the place of the landlord in the eviction petition. Taking note of the subsequent events, the Court allowed the application to come on record in place of the original landlord.
Following the decisions of the Apex Court, this Court in M. Rangaiah Naidu v. Abdul Kareem Khan and others 1989 (2) LS 299, held that the subsequent events either during the pendency of the appeal or revision petition can be taken into consideration for the purpose of moulding the relief. The Court is entitled to take into account even the facts and events which have come into existence after an order was passed by the Rent Controller.
The question that arises for consideration in the instant civil revision petition is as to whether the party can be allowed to plead subsequent events at any point of time and at their sweet will and convenience. None of the decisions cited across the Bar lend any support to such a proposition. It is not as if the subsequent event can be allowed to be pleaded by any of the parties at their own discretion. The proceedings in the Court normally proceed on the basis of the pleadings and material available on record. The party to the proceedings seeking to derive the benefit of subsequent events which may have a vital bearing on the proceedings is duty bound to bring the same to the notice of the Court at the earliest point of time. No party can be allowed to choose to bring such subsequent events to the notice of the Court at its own discretion. No party can allow the proceedings to go in a particular manner by withholding the information about such subsequent events within its knowledge and bring the same to the notice of the Court only after suffering an adverse order or judgment. The proceedings in a Court of law cannot be equated to a game of chance. Party to the proceedings intending to have the benefit of subsequent events must come forward immediately before the Court where the proceedings are pending and place such subsequent events before the Court for its consideration In Pasupuleti Venkateshwarlu, (supra) itself, the Apex Court held that the subsequent events arising after the Us has come to Court and has a fundamental impact on the right to reliefer the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. The Court is not precluded from taking a cautious cognizance of the subsequent changes of fact and law to mould the relief " It is therefore, clear that it is not as if a party to the proceedings can bring the subsequent events which may have an impact on the pending litigation to the notice of the Court at any point of time and according to its choice. The parties are required to be diligent and prompt in bringing such subsequent events to the notice of the Court which may have the bearing on the pending proceedings. The Court or the Tribunal would be well within its discretion to refuse to take note of the subsequent events, if the same are not promptly and diligently brought to the notice of the Court or the Tribunal, as the case may be.
In the affidavit filed in support of the application to receive the documents as additional evidence, no reason whatsoever is assigned by the petitioner as to why the subsequent events could not be placed before the appellate Court where the appeal was pending for a period of twelve long years. The subsequent events are not even pleaded and raised in the Memorandum of grounds in the civil revision petition in this Court. The documents that are sought to be produced now by the petitioner are dated 20th June, 1978 and December, 1986. It is not as if the subsequent events are not within the knowledge of the petitioner. On the other hand, it is the petitioner who is stated to have vacated the premises bearing No.11-62-67 secured by him as an alternative accommodation. For the aforesaid reasons, I am not inclined to permit the petitioner to raise any such grounds on the basis of the alleged subsequent events. The application in CMP No.16509 of 1996 is accordingly rejected.
The Civil Revision Petition fails and is accordingly dismissed. No costs.
The petitioner-tenant shall vacate the premises within six (6) months from today, failing which it shall be open to the respondent-landlord to go for execution.