Hari Shanker Sanghi vs G. Jaisurya

P.S. Narayana, J.—The unsuccessful tenants in both the Courts below are the Revision Petitioners - respondents in R.C.C. No. 266/94 on the file of Additional Rent Controller, Secunderabad and appellants in R.A. No. 249/97 on the file of Additional Chief Judge, City small Causes Court at Hyderabad. The landlord is the respondent in the present Civil Revision Petition. The eviction petition R.C. No. 266/94 on the file of Additional Rent Controller at Secunderabad was filed by the landlord as petitioner with the following allegations:

Petitioner is the owner of the premises bearing Nos. 2-1-65 & 66, situate at Tobacco Bazar, Secunderabad through a Release Deed dated 8-6-1993, executed by the other co-owners of the property. Respondent is a tenant in occupation of mulgi in ground floor and entire first floor portion, paying a monthly rent of Rs.225/- p.m. exclusive of electricity and property taxes. Originally the schedule property fell to the share of Late G. Eswar Rao, who has left Hyderabad to an unknown destination around December, 1984 and nothing has been heard from him since then and in law he is presumed to be dead. It is only thereafter the heirs of late G.Eswar Rao could execute a document relinquishing their rights in favour of this petitioner. Respondent is in occupation of mulgi on the Southern side of the property and the entire first floor bearing premises Nos. 2-1-65 & 66, Tobacco Bazar, Secunderabad, which premises is non-residential one. The respondent has been carrying on Textile business in the schedule property. The respondents have been in occupation of the premises for quite a long time. The tenancy has been attorned to the petitioner which is oral. Originally when the respondent took the premises on rent, it was agreed that the respondent shall pay the property tax promptly to the M.C.H. for the entire property and produce the receipt. It is now on enquiry found that the respondents have willfully and deliberately ignored to pay the taxes to M.C.H. which is wilful default on part of the respondent. On this sole ground, the respondent is liable to be evicted. Therefore this petitioner is invoking the ground of wilful default to evict the respondent. This petitioner is now without any business or avocation. His family originally belongs to textile trading and this petitioner is having sufficient experience and funds to start his own business, but has no place to start the business. As such, after mutual consultation, property bearing Nos. 2-1-65 & 66 which is originally owned by the entire families of late Sri G. Eshwar Rao, has been released in favour of the petitioner. Therefore, this petitioner has only this property and nothing else. There is one more tenant namely Jitendra Textiles, adjacent to Respondent''s mulgi. Eviction is being sought against the tenant for the purpose of carrying on business. This respondent is in occupation of one mulgi and the entire first floor portion which is now being sought to be evicted. This petitioner is not having to his possession any non-residential property of his own in twin cities of Hyderabad & Secunderabad. Right now the petitioner is assisting his brother as he has no other occupation. As such he needs the schedule property for his own self occupation and his requirement is genuine and bonafide. The petitioner is also filing a separate petition for fixation of fair rent, as the rent paid by the respondent is not in tune with reality. The schedule property was constructed more than 50 years.

A detailed counter was filed by the Revision Petitioners as tenants denying all the allegations. It was stated in the counter that the petitioner who filed the eviction petition i.e., the respondent in the Civil Revision Petition is one of the sons of Sri G. Eshwar Rao, lessor-owner and the said G. Eshwar Rao created tenancy in their favour and there is a written agreement dated 22-2-1980 and this fact was suppressed in the eviction petition by the landlord. It was also stated that Sri G. Eshwar Rao has been shown in the petition as "late" which is denied. It was also pleaded that he has to prove to the satisfaction of the Court the validity of the release deed dated 8-6-1993 and more so when there is no evidence about the demise of Sri Eshwar Rao, the owner-lessor. It was further pleaded that even though the originally agreed rent as per lessee was Rs.225/- per month, it was on 1-12-1984 fresh terms of tenancy had been settled with the owner-lessor and the same has been acted upon i.e., 1-12-1984 and as per the terms of the fresh tenancy, the rate of rent payable is Rs.270/- per month which is being collected by one of the owners of the lessor Sri G. Eshwar Rao, namely, G. Jaisurya and a Xerox copy of the rental agreement dated 22-7-1980 and the Xerox copy of the deed dated 1-12-1984 also had been filed. It was also stated that Sri G. Eshwar Rao had also received Rs.10,000/- from the tenants declaring that he had let out the premises perpetually making thereby that the tenants shall have the right to continue the tenancy so long as they require the premises on payment of rent as stated therein and that the lessor will not claim eviction. It was also pleaded that the present eviction petitioner claiming under the original lessor also is bound by the said terms. It was also stated that the eviction petitioner is put to strict proof of the allegation that Sri G. Eshwar Rao, is either dead or has left Hyderabad subsequent to December 1984 and his whereabouts are not known and these matters can only be adjudicated by a competent Civil Court by a decree of declaration only. No doubt, in the counter it was admitted that there are the tenants of ground floor mulgi on the Southern side of the property and the entire first floor bearing municipal No. 2-1-65 & 66, Tobacco Bazar, Secunderabad and the said building is a non-residential one and that they had established their business having goodwill and have been carrying on business in textiles. It was pleaded that the alleged attornment does not arise and the ground of wilful default in payment of property tax is neither true nor tenable and nothing was due and payable on account of property tax to M.C.H. on the date of filing of the eviction petition and several details had been in fact narrated in paragraphs 6 and 7 of the counter. However in the last portion of paragraph-6, it was specifically stated "As pleaded above, the lessor Sri G. Eshwar Rao entered into specific agreement by receiving an amount of Rs.10,000/- from the respondents apart from the deposit amount of Rs.675/- already in deposit as on 1-12-1984. The terms and conditions debar the lessor and the persons claiming under him to file eviction petition". At paragraph-9 of the counter it was specifically pleaded "The allegation that it is an old building is not denied. The Act has no application where the understanding is for long lease or for perpetual lease or lease to continue at the option of the tenant, the Act has no application". Subsequent thereto by way of an amendment, the eviction petition was amended by adding paragraph 5(a), which reads as follows:-

"The respondents herein have falsely claimed that they are entitled for perpetual lease which is incorrect. The respondents are not entitled for any perpetual lease as the property in question was not let out perpetually. The allegation that the petitioner''s late father had declared that the property was let-out perpetually is incorrect and on this ground also, the respondents are liable to be evicted".

In the light of the introduction of paragraph 5(a) in the eviction petition, an additional counter was filed by the Revision Petitioners-tenants, in which again the receipt-cum-agreement dated 1-12-1984 had been relied upon with over-emphasis.

On the strength of these pleadings, the landlord was examined as PW-1 and Ex.P-1, the sketch plan and Ex.P-2, the release deed dated 8-6-1993 were marked and on behalf of the tenants, RW-1, the 1st Revision Petitioner and RW-2 were examined and Exs.R-1 to R-31 were marked and the learned Rent Controller had framed the following points for consideration:

Whether the petitioner''s requirement of the suit premises is bonafide ?

Whether the respondents claim of permanent tenancy in respect of the suit premises is bonafide ?

To what relief ?

The learned Rent Controller had negatived the bonafide requirement, but had allowed the eviction petition on the ground that the tenants had taken a plea of perpetual lease with a malafide intention. It is pertinent to note that a Point for consideration relating to wilful default had not been framed at all by the learned Rent Controller, though at paragraph-7 of the order, there is a reference to the ground of wilful default. The tenants, aggrieved by the said order of eviction made in R.C.C.No266/94, dated 9-6-1997 by the Additional Rent Controller, Secunderabad, had carried the matter in Appeal, R.A. No. 249/97 on the file of Additional Chief Judge, City Small Causes Court at Hyderabad and the appellate authority at paragraph-12 of the order had framed the point for consideration as follows:

"Whether the claim of permanent tenancy in respect of the petition schedule premises is a bonafide or malafide one and if so liable for eviction".

The appellate authority at paragraphs 13 and 14 had discussed the ground and had ultimately arrived at a conclusion that the Appeal is devoid of merits and had dismissed the same by an order dated 27-2-2001 and the tenants, aggrieved by the same, had filed the present Civil Revision Petition u/s 22 of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960. Thus, though other grounds had been raised, now both the parties had confined themselves only to the question of malafide raising the ground of permanent tenancy by the Revision Petitioners-tenants.

Heard Sri Pratap Narayan Sanghi, the learned counsel representing the Revision Petitioners-tenants and Sri D. Madhava Rao, the learned counsel representing the respondent-landlord.

The total controversy between the parties revolves around Ex.R-6, receipt dated 1-12-1984. To prove Ex.R-6, apart from RW-1, the attestor RW-2 also was examined. No doubt it was seriously contended that this document was marked only for collateral purpose and there is an order made in this regard which became final and that is the reason why it was specifically recorded even by the Courts below that the document was relied upon only for collateral purpose and nothing more. It was also seriously contended that Ex.R-6 is totally inadmissible in evidence for want of registration and also want of stamp duty. Be that as it may, for proper appreciation of the controversy between the parties, a cursory glance at this Ex.R-6 may be essential. Ex.R-6 reads as follows:-

"Received a sum of Rs.10,000/- (Rupees ten thousand only_ from Sri Hari Shanker Sanghi S/o. Babulal Sanghi, aged about 52 years, Occ: Business and Sri Ramesh Chand S/o.Sri Hari Shanker Sanghi, aged about 24 years, Occ: Business, both are R/o. 21-1-888, Mamjumla Patak, Charkaman, Hyderabad towards rental advance in respect of mulgi bearing No. 2-1-65 and 66 (Old No. 1570), Tobacco Bazar, Secunderabad, which was let out to them perpetually on a monthly rent of Rs.225/- per month exclusive of electricity charges with effect from today i.e., 1-12-1984 for a period of first 10 years and thereafter with enhancement of rent at 20% for the next 5 years and thereafter with enhancement of rent at 20% for completion of 5 years and the tenants are entitled to carry out repairs, additions or alterations or to reconstruct the mulgi if required by applying and obtaining necessary permission from M.C.H. at their expenses only which is not deductable from the monthly rents and this agreement and understanding is binding on me, my heirs and successors".

I am conscious of the fact that this document is an unregistered document. But however, the main ground of attack of the respondent-landlord is that in the light of the specific stand taken by the tenants relating to the plea of permanent tenancy, as it is alleged to have been agreed upon under Ex.R-6, the tenants are liable to be evicted.

Sri Pratap Narayan Sanghi, the learned counsel representing the Revision Petitioners had contended that there is no specific denial relating to the execution of Ex.R-6 as such and the person who is otherwise competent to speak about the same, the executant i.e., the father of the landlord, is unheard of for more than seven years and hence there was no opportunity for the tenants to confront the said executant and the mere fact that the son says something relating to the genuineness or otherwise of Ex.R-6 is not of much consequence. The learned counsel also had pointed out to the respective pleadings of the parties, amended pleadings, the additional counter and also the additional evidence marked as Ex.R-32 at the appellate stage and also had drawn my attention to the evidence of RW-1 and RW-2 and also the evidence of PW-1 in this regard. The learned counsel also had contended that in the absence of specific pleading or evidence, it cannot be said that Ex.R-6 is a forged document. The learned counsel also had submitted that at the earliest point of time, the plea relating to Ex.R-6 in fact had been taken by the tenants and hence the denial or claim cannot be said to be not bonafide within the meaning of Section 10(2)(vi) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960, hereinafter referred to in short as "Act" for convenience. The learned counsel also had pointed out that both the courts below had totally erred in making observations relating to the validity or otherwise of Ex.R-6 by comparing the signatures on their own accord and in view of the peculiar facts and circumstances established in the light of the fact that the whereabouts of the executant are not being heard of from a very long time, the disputed signature should have been sent to a hand-writing expert for the purpose of comparison. The learned counsel placed strong reliance on The State (Delhi Administration) Vs. Pali Ram, and also O. Bharatan Vs. K. Sudhakaran and another, . The learned counsel also had placed reliance on Atyam Veerraju and Others Vs. Pechetti Venkanna and Others, relating to the question of permanent lease. The learned counsel also had stressed that the word "bonafide" in Section 10(2)(vi) of the Act assumes importance and the stand taken by the Revision Petitioners-tenants, at any stretch of imagination, cannot be said to be "not bonafide" in the facts and circumstances. The learned counsel also had contended that under certain circumstances, the Revisional Court can interfere even with the concurrent findings recorded by the courts below. Strong reliance was placed on Ram Narain Arora Vs. Asha Rani and Others, .

Sri Madhava Rao, the learned counsel representing the respondent-landlord had vehemently contended that even at the earliest point of time, when a stand had been taken by the tenants relating to the plea of permanent tenancy, the eviction petition was amended by introducing paragraph 5(a) and the Courts below by exercising the powers u/s 73 of the Indian Evidence Act, had taken pains to compare the disputed signature in Ex.R-6 with the admitted signature in Ex.R-5 and hence these findings recorded by both the courts below are findings of fact in relation to Ex.R-6, which cannot be disturbed by the Revisional Court. The learned counsel also had pointed out that there is no legal infirmity or perversity in the findings recorded by both the Courts below. The learned counsel had taken me through the orders of both the Courts below, the order of the appellate authority in particular, and had contended that such findings cannot be disturbed. The learned counsel also had contended that the learned Rent Controller had passed an order that Ex.R-6 is admissible only for collateral purpose and the said order became final and hence now the tenants cannot be permitted to contend otherwise. The learned counsel also had pointed out that the appellate authority had examined Ex.R-6 with microscopic lenses and since the admitted signature also is available there is no necessity of sending such a document to an expert. The learned counsel also had contended that since the proceedings are of summary nature, the findings recorded by both the courts below are in accordance with law and cannot be disturbed while exercising Revisional jurisdiction u/s 22 of the Act.

The factual matrix already had been explained supra, need not be repeated again. It is pertinent to note that Ex.R-6 is only a receipt and however, on the strength of the contents of the said document, a stand had been taken by the tenants relating to the permanent tenancy. PW-1 in fact had deposed that there is no rental agreement and that his father had left the home during the second week of November 1984 and since then his whereabouts are not known. In cross-examination, PW-1 had stated as follows:-

"The respondent has electricity supply. I am not aware if the electricity connection stands in the name of the respondent. I cannot identify my father''s signature. Again the witness says that he can identify the signature of his father. I have not filed any document containing the signature of my father. My father signs in Telugu".

PW-1 also admitted that the tenants had taken the lease of the property from his father only. RW-1 in fact, had spoken about the lease agreement-cum-receipt, Ex.R-6 and RW-1 also deposed that Ex.R-9 also contains the signature of G. Eshwar Rao and he had specifically denied the suggestion that Ex.R-6 does not contain the signature of G. Eshwar Rao. The evidence of RW-2 is very crucial and important who had specifically deposed about his attesting Ex.R-6. He had spoken to even about the payment of Rs.10,000/-. No doubt instead of recording the payment made to the father of the eviction petitioner, it was recorded as though the payment was made to the eviction petitioner as such in his presence. No doubt it was suggested that Ex.R-6 was not executed in his presence and no money was paid and he was deposing falsely just to support RW-1.

Section 10(2)(vi) of the Act says:

"that the tenant has denied the title of the landlord or claiming a right of permanent tenancy and that such denial or claim was not bonafide".

The question that has to be decided in the present Revision is whether this ground in fact had been established by the landlord in the facts and circumstances of the case or whether the impugned order is liable to be set-aside. It is no doubt true that Ex.R-6 is attacked as an inadmissible document. But however, it is pertinent to note that the document was marked, may be for the limited collateral purpose. However, it was seriously contended that since the interlocutory order, though became final, merges with the final order of eviction, the landlord cannot now take advantage of the interlocutory order and contend that since the said order became final the said question cannot be reagitated again. Be that as it may, this question may not be further probed into in the facts and circumstances of the case since for some purpose the document Ex.R-6 was brought on record. However, both the parties had permitted to get the said document Ex.R-6, on record. It is also not in dispute that the alleged executant of the said document is not available for the purpose of any kind of confrontation and his whereabouts are not known even from the year 1984. Section 107 of the Indian Evidence Act dealing with Burden of proving death of person known to have been alive within thirty years, reads as follows:

"When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it".

Section 108 of the Indian Evidence Act, dealing with Burden of proving that person is alive who has not been heard of for seven years, reads as follows:

"Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it".

As can be seen from the pleadings, this aspect about the whereabouts of the father of the landlord being not heard of also had been denied in the counter. In Tadepalli Ram Rathnam Vs. Kantheti Varadarajulu and Others, , it was held that the presumptions both under Sections 107 and 108 of the Indian Evidence Act, are rebuttable presumptions. No doubt, the evidence of PW-1 alone is available on this aspect. The non-examination of the original landlord, whatever may be the reason, will assume importance in the light of the fact that the son, the present landlord, is taking a specific stand of denying Ex.R-6. As already stated above, the evidence of RW-2 is available in this regard and except the evidence of PW-1 there is no other evidence. In the light of the facts and circumstances of the case and especially in the light of the evidence of RW-2, supporting the version of RW-1, unless there is sufficient material available on record one cannot say that the stand taken by the Revision Petitioners falls within the expression "not bonafide". It is also pertinent to note that both the courts had taken pains to compare the signatures purporting to exercise power u/s 73 of the Indian Evidence Act. In the decision referred (1) supra, while dealing with Sections 73 and 45 of the Indian Evidence Act in relation to a criminal trial, the Apex Court held that although there is no legal bar to the Judge using his own eyes to compare the disputed hand-writing with the admitted writing, even without the aid of evidence of any hand-writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a hand-writing which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. In FAKRUDDIN Vs. STATE OF MADHYA PRADESH, AIR 1967 SC 1326 , it was held that comparison of hand-writing by the Court with the other documents not challenged as fabricated upon its own initiative and without guidance of an expert is hazardous and inconclusive. The same view was expressed in the decision referred (2) supra.

It is needless to point out that the Courts are having powers to compare disputed signatures with the admitted signatures. But however, in the facts and circumstances of the present case and in the light of the peculiar fact that the whereabouts of the executant of the document are unheard of for a long time, in all prudence, the Courts below could have given an opportunity for the parties to take the disputed signature to be examined by an expert to be compared with an admitted signature. In fact, I had gone through the orders of both the Courts below and the findings relating to the comparison of signatures also appear to be on certain minor variations and in such circumstances, in my considered opinion, it is always advisable to give opportunity to the parties to send such a signature to be examined by an expert. In fact, u/s 165 of the Indian Evidence Act, the Judge himself is having power to put question or order production if the facts and circumstances warrant him to do so. No doubt, reliance also was placed to explain the nature of permanent tenancy on the decision referred (3) supra.

I am conscious of the limitations imposed on a Revisional Court u/s 22 of the Act. But however, in view of the peculiar facts and circumstances, I am of the considered opinion that both the Courts had not appreciated the matter on the specific ground raised ie., the raising of ground of permanent tenancy and the bonafide nature of raising such a ground in proper perspective and the findings recorded by both the Courts below on such insufficient material cannot be sustained in law. However, in the light of the peculiar facts and circumstances and especially in the light of the fact that the whereabouts of the alleged executant of Ex.R-6 are unknown for sufficiently a long time, in the interests of justice it is a fit matter to be remitted back to the appellate authority for the purpose of giving opportunity to both the parties to let in further evidence in the light of the observations recorded supra and to dispose of the matter within a period of six months from the date of receipt of the order.

The Civil Revision Petition is accordingly allowed to the extent indicated above. In the peculiar facts and circumstances, no order as to costs.