Jamsheed Hussain vs Azeez Hussain (died) by LRs.

This civil revision petition is filed by the tenant questioning the orders dated 21-9-1994 passed in RANo.263 of 1990 on the file of the Chief Judge, City Small Causes Court, Hyderabad by which the rent appeal was dismissed thereby confirming the orders of eviction passed against him in RC No.327 of 1985 on the file of the II Additional Rent Controller, Hyderabad.

The first respondent is the original landlord and the Respondents 2 to 6 herein were added as his legal representatives after his death during the pendency of the proceedings. The original landlord, who is the deceased first respondent herein, filed eviction petition in RC No.327/85 before the Rent Controller seeking eviction of the present revision petitioner who is the tenant on the ground of wilful default in payment of rent for the period from August 1983 to August 1985 (for total period of 25 months) and also on the ground thai the tenant is liable for eviction for having kept the premises which is non-residential building vacant for three years. The Rent Controller rejected the second ground. He, however, held that there was wilful default in payment of rents for the above said period and as such the orders of eviction were passed against him on 29-6-1990. Questioning the said orders the tenant filed RA No.263 of 1990 against the Respondents 2 to 6 herein who are the legal representatives of the deceased original landlord who died in the meanwhile. The lower appellate Court confirmed the orders of eviction on the ground of wilful default by the impugned orders dated 21-9-1994 thereby dismissing the rent appeal. Questioning the said orders the tenant filed revision petition. Along with the revision petition he also filed CMP No.20568 of 1994 seeking permission to file two documents by way of additional evidence on his behalf contending that the original landlord had sold away the demised building to some third parties on 13-11-1989 under registered sale deed executed by him even before the eviction orders were passed by the Rent Controller on 29-6-1990 and that in view of such sale the eviction proceedings cannot be continued against him, that the said registered sale deed and the encumbrance certificate which are filed along with CMP No.20568 of 1994 are necessary and material documents to be considered for the disposal of the present revision petition and that therefore the said petition may be allowed. The learned Counsel for the respondents, has, however, fried to contend that the orders of the appellate Court confirming the orders of eviction passed by the Rent Controller are quite valid and legal and such concurrent finding cannot be interfered in the present revision and that the fresh documents by way of additional evidence cannot be entertained in the revision proceedings and that therefore the civil revision petition and the civil miscellaneous petition may be dismissed.

Heard both the Counsel.

Regarding the ground of wilful default on which the Rent Controller as well as the appellate authority have arrived at the concurrent finding that there was wilful default in payment of the rent during The period from August 1983 to August 1985 (which is for a period of 25 months). A perusal of the evidence adduced on behalf of both sides clearly reveals as rightly found by the two Courts below that there was wilful default committed by the revision petitioner/tenant in payment of rents for the above said period and that he is liable to be evicted on such ground. Both the Courts below have given valid and convincing reasons in support of their conclusion and such concurrent finding based on evidence cannot be interfered with in the revision proceedings as there are no valid reasons to do so. It is now proved beyond doubt from the evidence placed on record that the agreed rent per month was Rs.75/- and the tenancy was oral. Originally, the father of the revision petitioner became tenant of the original landlord and after his death the revision petitioner herein attorned to the original landlord or about the year 1971 as tenant and ever since then he has been occupying the demised building for non-residential purpose as such tenant. The deceased original landlord in was examined as PW1 and he filed Exs.Pl to P4 on his behalf while the revision petitioner was examined as RW1 and no documents were marked on his behalf Ex.Pl is the counterfoil rent receipt and Ex.P2 is the account book maintained by the original landlord. PW1 has deposed that he was making entries in Ex.P2 account book maintained by him for the rents received from the revision petitioner as well as some other tenants and it is seen from those entries in Ex.P2 that the rent was not paid from August, 1983 onwards till the end of October, 1988. It is further to be seen from the said entries that PW1 received a lump sum of Rs. 1890/- on 8-12-1988 from the Counsel for the revision petitioner towards arrears of rent The said entire amount of Rs.1890/-paid in lumpsum on 8-12-1988 by the Counsel for the revision petitioner evidently represents the arrears of rent for the period from August, 1983 till the date of such payment in 1988. RW1, who is the revision petitioner, does not dispute the payment of such lumpsum amount towards rent on 8-12-1988. When a question was put to him during his cross-examination RW1 stated that he does not remember whether any such rent was paid at a time. PW1 has further deposed that such rent was not paid by the revision petitioner tenant even for the period subsequent to the filing of RC No.327 of 1985. He had filed another eviction petition in RC No.464 of 1987 seeking eviction once again on the ground of wilful default in payment of rent for the period subsequent to August, 1985. There is absolutely no material to show that even after the filing of the subsequent RC No.464 of 1987 the revision petitioner tendered or paid any rent to PW1 either for the period from August 1983 to August 1985 which is the default period concerned in RC No.327/85 or the rent for the period subsequent to August 1985 which was the default period in RCNo.464of 1987. As already stated above, he paid arrears of rent for the entire period from August 1983 to August 1985 only on 8-12-1988. In view of such circumstances both the Courts below rightly came to the conclusion that the revision petitioner utterly failed to substantiate his plea that he had in fact paid the rent for the period from 8-8-1983 as and when it became due every month and that there was supine indifference and gross negligence on his part in payment of rent and there was no such payment of rent for the said period from August 1983 till a lumpsum amount of Rs. 1890/- was paid on 8-12-1988. In view of all such circumstances it is clear that the revision petitioner had committed wilful default in payment of rent for the above said period as rightly found by the Courts below and there are no valid reasons to interfere with such findings.

The next contention which is the main contention of the revision petitioner in the present petition is that even during the pendency of RC No.327 of 1985 before the Rent Controller and even before the orders of eviction were passed on 29-6-1990 the original landlord, who is now no more, had sold away the demised building which is bearing No.5-3-990 alongwith some other property to some third parties, that in view of such sale even before the orders of eviction were passed in the eviction petition, the original landlord had lost his rights in the property, that he or his legal representatives, who are the Respondents 2 to 6 herein, have no locus standi to continue the proceedings for eviction and that therefore the eviction orders shall be set aside on that ground by allowing the present revision petition. He has filed CMP No.20568 of 1994 for receiving the registration copy of the said sale deed dated 13-11-1989 and the relevant encumbrance certificate relating to that property by way of additional evidence on his behalf in this revision petition. The learned Counsel for the respondents however tried to contend that such additional evidence cannot be considered in the revision proceedings and as such CMP No.20568 of 1994 may be dismissed. As far as the above said two documents sought to be filed by way of additional evidence on behalf of the revision petitioner are concerned, the contention of the learned Counsel for the respondents that those documents cannot be considered in the revision proceedings cannot be accepted. It is now a well established proposition of law that this Court can take note of the events that happened subsequent to the initiation of rent control proceedings for eviction for doing substantial justice in the matter. The same view was expressed in an earlier decision of this Court also reported in Ms. Kotatwar and Co. v. N. Durgaiah 1966 (2 )A.WR 160. The above said sale deed was executed on 13-11-1989 which was subsequent to the filing of RC No.327 of 1985 and which is said to have come to the notice of the revision petitioner only after the orders of eviction passed by the Rent Controller were confirmed by the lower appellate authority in RA No.263 of 1990. Even though there is no specific provision u/s 22 of the A.P. Rent Control Act for admitting additional evidence as such, these documents which are subsequent events can be taken note of by this Court in the interests of justice. The same view was expressed by this Court in an earlier decision reported in D. Rajanna v. Doulatram, 1967 (2) An. WR 216. Therefore the above said registered sale deed and the connected encumbrance certificate can be looked into by this Court for the purpose of considering the contention raised by the revision petitioner on the basis of such sale which happened subsequent to the filing of the Rent Controller petition.

The contention of the learned Counsel for the revision petitioner is that inasmuch as the original landlord had sold away the demised building on 13-11-1989 which is prior to the passing of the orders of eviction on 29-6-1990 he lost his rights in that property and as such he was not entitled to continue those proceedings and the eviction orders passed subsequently under those circumstances by the Rent Controller are not valid and legal and such orders of eviction and therefore to be set aside in the present revision petition. On the other hand the contention of the learned Counsel for the respondents is that even though such a sale deed was executed by the original landlord on 13-11-1989 he still continued to be ''landlord'' and he was also receiving rents for the demised building from the revision petitioner even after such sale and that in view of such circumstances he was entitled to continue the eviction proceedings and the eviction orders passed on 29-6-1990 cannot be said to be invalid on the ground of such sale.

The admitted facts are that the original landlord filed RC.No.327 of 1985 in the year 1985 seeking eviction of the revision petitioner on the ground of wilful default in payment of rent for the period from August 1983 to August 1985. He was examined as PW1 and his evidence including cross-examination was completed on 13-11-1989. The" arrears of rent for the period from 8-8-1983 were paid in lumpsum of Rs.1890/-at a time by the Counsel for the revision petitioner and the same was also noted in the entries contained in Ex.A2 upon which the original landlord tried to rely upon. He was examined as PW1 and his evidence is also to the effect that rent was paid on 8-12-1988 in lumpsum of Rs. 1890/-. The entries in Ex.A2 are made from January 1982 till August, 1989. It is to be seen from those entries contained in Ex.A2 that after the amount of Rs.1890/- was received by the original landlord on 8-12-1988 the revision petitioner paid rent only on a few occasions and such occasions when rent was paid to the original landlord relate to March 1989, June 1989, July 1989 and August 1989. The payment in the month of August 1989 is the last payment of rent made by the revision petitioner to the original landlord as far as the entries in Ex.A2 are concerned. The original landlord who was examined as PW1 has deposed that subsequent to the filing of the next eviction petition in R.C.No.464 of 1987 no rent was paid to him by the revision petitioner except the above said lumpsum payment of Rs. 1890/-. These are all admitted facts. It is clear from these facts that subsequent to August 1989 which is the last entry contained in Ex.A2 there was no rent received by the original landlord for the demised building from the revision petitioner. The demised building was sold away by the original landlord on 13-11-1989 and as per the evidence referred to above, there was no rent received by the original landlord from the revision petitioner for the demised building subsequent to the execution of the said sale deed on 13-11-1989. Keeping in view all such facts, it is to be seen whether the original landlord who had sold away the properties to third parties on 13-11-1989 which was even prior to the passing of the eviction orders on 29-6-1990 was entitled to continue the eviction proceedings and whether such orders of eviction passed by the Rent Controller are valid and legal.

In this connection it is to be seen whether the original owner who was the landlord of the revision petitioner and to whom the revision petitioner had attorned in the year 1971 continued to be the "landlord" of the demised building even after the execution of the sale deed dated 13-11-1989 in favour of the third parties. In the present case when once he executed the registered sale deed dated 13-11-1989 the execution of which is not denied, the original owner of the building ceased to have any rights of ownership in the said property. A perusal of the sale deed dated 13-11-1989 shows that having received the entire sale consideration amount the vendor, who is the original owner, transferred and conveyed all the rights in that building to the purchasers. It is further mentioned in the said sale deed that vacant possession of the building was also delivered to the predecessors (sic. purchasers) under that document itself Even though the building was in the possession of the revision petitioner as tenant, by the date of execution of the sale deed since a long time prior to the filing of the eviction petition and even though the eviction proceedings before the Rent Controller were still pending, the owner of the property, who sold away the same, mentioned in the said sale deed that he had not encumbered or charged or otherwise dealt with the schedule property or any part of it in any way, that it was free from all encumbrances and that vacant possession was therefore delivered to the vendees under the document. Nothing is mentioned in the said sale deed about the pendency of the eviction petition, nor is it stated anything in that sale deed that the vendor who was the owner of the property will take responsibility for continuing the eviction proceedings and obtain possession of the same and then put the vendees in possession after evicting the revision petitioner. Under these circumstances, it is clear that the original owner of the property who was the landlord ceased to have any rights over the property when once the above said sale deed with such recitals was executed in favour of third parties.

The learned Counsel for the respondents had tried to contend that in view of the definition of landlord as contained in Section 2(vi) of the Rent Control Act, even though the original owner had executed the sale deed and thereby ceased to be the owner of the property, he continued to be the landlord of the revision petitioner as he was receiving rents for the building even after the eviction petition was filed. In order to consider such contention, it will be useful to refer to the definition of ''landlord'' as contained in Section 2(vi) of the Act which is as follows :

"(vi) ''Landlord'' means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver, or guardian or who would so receive the rent or to be entitled to receive the rent, if the building were let to a tenant;"

It is no doubt true that in order to be a ''landlord'' as defined in the Act, it is not necessarily to be owner of the property. A landlord includes even a person who is receiving or is entitled to receive rent for a building whether on his own account or on behalf of any other person or as an agent, trustee, executor, administrator, receiver or guardian. But, in the present case, as already stated above, after the lumpsum payment of Rs.1890/- on 8-12-1988, the original owner received rents occasionally from the revision petitioner and even as per Ex.A2 entries the last occasion when the original owner received rent from the revision petitioner was in August 1989. There is no iota of evidence either oral or documentary to show that the original owner received rents from the revision petitioner even subsequent to August 1989. But the sale deed in this case was executed on 13-11-1989. There is no evidence to show and it is not even the contention of the respondents therein (sic. herein) that the original owner of the building received rents from the revision petitioner/tenant even subsequent to 13-11-1989 when the sale deed was executed. Therefore, the original owner, who ceased to have any right of ownership in the building is also not a person who was receiving or was entitled to receive rent for the building either on his own account or on behalf of the vendees or as their agent, trustee, executor, administrator, receiver or guardian as contemplated in Section 2(vi) of the Act, In such a case the original owner of the building who filed RC.No.327 of 1985 cannot be considered as a "landlord" as defined in Section 2(vi) of the Act u/s 10(2) of the Act only a ''landlord'' as defined in the Act can seek eviction of his tenant on the ground that the latter failed to pay the rent due by him in respect of the demised building. Under those circumstances the original owner who had filed the eviction petition had no locus standi whatsoever to prosecute the eviction petition as he was having no more interest or right or title in the demised building and as he was also not a ''landlord'' as defined in Section 2(vi) of the Act. Therefore he had no right to get the revision petition/tenant evicted from the demised building, and therefore the eviction orders passed by the Rent Controller are not valid and legal. As a matter of fact, even after selling away the demised building on 13-11-1989 to some third parties conveying absolute title to them and also said to have delivered vacant possession of the building to them under the sale deed, the original landlord did not even choose to inform the Rent Controller about such sale, nor did the purchasers make any effort to get themselves added as parties in the Rent Control petition to continue the eviction proceedings before the orders were passed on 29-6-1990. Under those circumstances, the evidence orders passed by the Rent Controller on 29-6-1990 cannot be said to be valid and legal inasmuch as the original owner ceased to be such owner and also cased to be the landlord of the demised building and as the purchasers did not take any steps to get themselves added as parties to the eviction petition. The same view was expressed by a single Judge of this Court in an earlier decision of this Court reported in Mallaiah v. Appayamma 1980 (2) ALT 50 (NRC)

The learned Counsel for the respondents has however tried to rely upon the decision of this Court reported in R. Appalanarasamma v. K. Someswara Rao 1976 ALT 50 (NRC) in support of their contention that the original owner can continue the proceedings- In the said decision it is observed that the proceedings are maintainable and can be continued by the vendor as the definition of landlord covers even a person who receives rents on behalf of another person and that in that case, notwithstanding the alienation by the original owner the proceedings were maintainable as the original owner was receiving rents on behalf of the purchaser. But in the present case, as already stated above, the original owner never received any rents from the revision petitioner subsequent to the execution of the sale deed either on his own account or on behalf of the purchasers and it is also not a case where he was entitled to receive such rent on behalf of the purchasers subsequent to the execution of the sale deed. Therefore, the observations made in the said judgment of this Court are of no assistance for the contention of the respondents. In view of all such circumstances, the orders of eviction dated 29-6-1990 passed by the Rent Controller in R.C.No.327 of 1985 which were confirmed by the lower appellate authority cannot be sustained and are liable to be set aside.

In the result, the Civil Revision Petition is allowed but without costs and the orders of the Rent Controller in R.C.No.327 of 1985 which were confirmed by the lower appellate Court in RA.No.263 of 1990 are set aside.