Kamala Bai Marda and Another vs R. Venkat Rajaiah (Died) per LRs

N.Y. Hanumanthappa, J.—This revision petition is filed by landlord aggrieved by the judgment and order passed by the learned Chief Judge, City Small Causes Court, Hyderabad, dated 24-7-1989 in R.A.No. 22 of 1985 allowing the appeal and dismissing the landlord''s eviction petition filed in R.C.No. 288 of 1979, dated 21-3-1985 on the file of the II Additional Rent Controller, Hyderabad filed u/s 10(2) (i) and (iii) (a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (in short ''the Act'').

A few facts which are necessary to dispose of this petition are as follows:-

The petitioners have purchased House bearing No. 4-7-321 situated at Esamiya Bazar, Hyderabad from its earlier owner Madanagopal Rathi under a registered Sale Deed, dated 3-7-1979. The Respondent No.1 herein Sri P. Venkata Rajaiah was a tenant earlier under Madangopal and later, by virtue of sale in favour of the petitioners herein, tenancy was attorned. The house consists of three rooms and one kitchen and the rent was Rs. 90/-. Pursuant to the attorney, the Respondent No. l became the tenant under the petitioners. Tenant has agreed to pay the rents every month regularly on or before the fifth day of each month. Tenant has paid Rs. 180/- towards rent for the scheduled premises for the months of July and August, 1979 on 28-9-1979 through a bank draft and subsequently, on 25-10-1979, the 1st respondent sent money order for Rs. 90/- towards the rent for the month of September, 1979. In spite of the repeated oral demands made by the husband of Petitioner No. 2, the Respondent No. 1 did not pay the rents regularly. The petitioners have purchased the scheduled premises with sole intention to occupy the same for their residential purposes and that all the relatives of the petitioners are residing nearby the scheduled premises, whereas the area where the petitioners are residing consists of Muslim Community people and the said house, where they are now residing is a rented one. The petitioners do not have any other house except the scheduled premises and they require the same for their occupation.

The Respondents filed their counter denying the claim of the Petitioners. It is denied that the petitioners are the owners of the scheduled premises and according to them, they are only mortgagors. The so called sale transaction is a ''benami'' one. It is also denied that they are defaulters in paying rents to the scheduled premises and it is also denied that the petitioners require the scheduled premises for their personal use and occupation. According to them, the place where the petitioners are residing is quite convenient and the said area is not prone for communal disturbances. After filing counter, Sri Venkata Rajaiah, 1st respondent herein died and in his place, his legal representatives viz., his wife and sons were brought on record. An additional petition was filed by the legal representatives of late Sri Venkata Rajaiah to the effect that they are entitled to continue in possession of the scheduled premises. Further, one of the legal representatives of Late Sri Venkata Rajaiah viz., his son is serving in defence, which is an essential service, as such, the eviction petition filed by the petitioners is not maintainable in view of Section 10 (4) of the Act. On the basis of the pleadings, the following points were raised for consideration by the trial court:-

"1. Whether the respondents have committed wilful default in payment of rent for July, August and September, 1979 amounting to Rs. 270/-

Whether the petitioners require the suit premises for their personal occupation and whether their requirement is bona fide?

To what relief?"

Both the sides adduced their evidence, both oral and documentary. On behalf of the petitioners, the 1st petitioner and another person were examined as P.W.1 And 2 and marked Ex.P.1 to P.18 and on the Respondents'' side, Respondents No. 2 and 3 were examined as R.W.1 and R.W.2, but no documents were marked on their behalf. The trial court discussed the entire evidence and found that the 1st Respondent-tenant was a wilful defaulter in payment of rents and also held that the petitioners require the suit premises for bona fide reasons and occupation. The relevant finding of the trial Court as to the bona fide requirement of the petitioners is at para 7 of the judgment of the trial court, which is extracted below :-

"In the aforesaid circumstances, I am of the opinion that the requirement of the petitioners for the suit premises is bona fide, and I find this point in favour of the petitioners and against the respondents."

No discussion was made on the effect of Section 10 (4) of the Act. Reaching such a conclusion, the learned II Additional Rent Controller, Hyderabad passed an order, dated 21-3-1985 allowing the petition directing the Respondents herein to evict (sic. vacate) the schedule premises and hand over the vacant possession to the petitioners-landlord. Aggrieved by the said order, an appeal was preferred by the Respondents herein before the Chief Judge, City Small Causes Court, Hyderabad in R.A.No. 22 of 1985. During pendency of the proceedings, I.A.No. 114 of 1989 was filed by the petitioners-landlord to adduce additional evidence viz., to mark the document i.e. the sale deed, dated 6-3-1985, however the same was dismissed. The appellate Court heard both sides on the following three points:-

"1. Whether the appellants have not committed any wilful default in payment of rent for the months of July and August, 1979?

Whether the respondents do not require the schedule premises bona fide for their occupation? and

Whether the appellants cannot be evicted from the schedule premises as the 1st appellant is in employment of essential service?"

The appellate court once again considered the evidence on record and also the averments made in the affidavit filed in support of I.A.No. 114 of 1989 and reached the conclusion that the respondents-tenant was not a defaulter and the petitioners have not made out a case that they require the schedule premises for bona fide reasons and occupation and also held that in view of Section 10 (4) of the Act, the eviction petition is barred against Respondent No. 1, who is serving the defence, which is an essential service. Thus observing, the appellate Court passed an order on 24-7-1989 allowing the appeal. Aggrieved by the said judgment and order of the lower appellate Court, this petition is filed.

Sri K.K. Waghray, learned counsel for the petitioners herein urged that the approach of the lower appellate Court in reversing the judgment of the trial Court is quite arbitrary and incorrect. The lower appellate Court committed a mistake in holding that in view of Section 10 (4) of the Act, eviction petition against the 1st Respondent is not maintainable. Lower appellate Court committed a mistake in dismissing I.A.No.114 of 1989, wherein the petitioners sought permission to adduce additional evidence. The finding of the lower appellate Court as to the applicability of Section 10 (4) of the Act is quite unwarranted. In support of his contentions, learned counsel for the petitioners herein has relied upon the decision in Bal Kishan Vs. Om Parkash and Another, and the decision in "G. Purnachandra Rao and Ors. v. K. Rama Rao� 1990 (2) ALT 487.

Sri P. Sridhar Reddy, learned counsel for the respondents-tenant submitted that the order of the lower appellate Court is just and proper and the eviction petition filed against the tenant is a mis-conceived one as one of the sons of original tenant is an employee in essential service. The findings of the lower appellate Court on other issues as to whether the tenants committed any wilful default in payment of rents, whether the schedule premises are required by the petitioners for bona fide reason and occupation including the applicability of Section 10 (4) of the Act are quite just and reasonable. According to him, tenant includes his legal representatives. Thus, he placed reliance on the decision of High Court of Madras in "Gurumurthi Iyer v. Subramania Chetti" 1990 (2) ALT 487. Thus arguing, the learned counsel for the respondents submitted that the petition be dismissed.

After going through the record and perusing the documents, the conclusion reached by the learned Rent Controller does not look as an arbitrary one, particularly on the bona fide requirement of premises by the petitioners. But the lower appellate Court reversed the said judgment without assigning valid reasons. It blindly made applicable the effect of Section 10 (4) of the Act. To know how far the lower appellate Court is justified in passing the order under challenge, it is appropriate to determine the effect of Section 2 (ix) of the Act, which defines the term "tenant" and it is extracted below:-

"(ix). ''tenant'' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant''s family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority"

Section 10 (4) of the Act says that no order for eviction shall be passed against a person, who is serving the defence, which has been notified as an essential service. Section 10 (4) (i) reads as follows:-

"(4) No order for eviction shall be passed under Sub-section (3).

(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purpose of this Sub-section unless the landlord is himself engaged in any employment or class of employment which has been so notified ; or"

As to the effect of Section 2 (ix) and Section 10 (4) of the Act, there cannot be any second say, but on facts, the approach of the learned Chief Judge, City Small Causes Court, Hyderabad is incorrect. In the case of Gurumurthi Iyer and Others Vs. M.K. Subramania Chetti, wherein while interpreting Section 10 (4) (i) the Madras Buildings (Lease and Rent) Control Act, 1960, the Court held as follows:-

"Madras Buildings (Lease and Rent Control) Act (XVIII of 1960), Sections 10 (4) (i) and 18 - Order of eviction against tenant - Tenant dies subsequently - Legal representatives of deceased tenant - It can resist execution on the basis that they are in essential service."

This was a case where after the death of the original tenant when his legal representatives were brought on record, they were allowed to continue as tenants and rents were accepted from them, thus they were recognised as tenants. Section 2 (ix) of the Act restricts the rights of the legal representatives of a tenant upto the stage of original tenant''s death and the rights that were accrued to him during that period till his death. In the case on hand, the plea of applicability of Section 10 (4) of the Act was brought to the Court''s notice by way of an amendment. In following two cases when amendment could be granted was discussed. In "Bal Kishan v. Om Parkash" (1 Supra), it was held as follows:-

"Haryana Urban (Control of Rent and Eviction) Act (11 of 1973), Section 13 (2) (ii) (a) and 2 (h) - Eviction - Subletting of premises by tenant without written consent of landlord - Death of tenant during pendency of suit - Legal representative of tenant brought on record - Order of eviction of legal representative of tenant and sub-tenant - held, was proper."

In a decision of this Court in "G.Purnachandra Rao and Ors. v. K.Rama Rao" (2 Supra) held as follows:-

"A.P. Buildings (lease, Rent and Eviction) Control Act, 1960 and Rule 19 of the Rules, 1961 framed under the Act - application by tenant in an eviction petition for permission to deposit rent - Tenant opposing petition for bringing on record legal representatives who claimed rights under a will executed by deceased landlord - No pre-existing relationship of landlords and tenant between legal representatives and tenant and hence question of denial of title or relationship does not arise - Tenant''s opposition of L.R. Petition does not amount to denial of title so as to entitle eviction of tenant - Legal representatives only represent the estate of the deceased. Their entitlement to estate is not the subject matter of tenancy proceedings."

It is not the case of the legal representatives of the tenant herein that their father, the original tenant viz., Venkatarajaiah was also serving in defence. Legal representatives of the original tenant Venkatarajaiah were never recognised as tenants by the landlord. One of the legal representatives of the original tenant serving the defence - essential service - will not dis-entitle the petitioners herein to seek eviction of the respondents-tenant as Section 10 (4) of the Act has no application in the instant case. The lower appellate Court proceeded with the case keeping in mind the view that the case of the respondents is covered by Section 10 (4) of the Act. Having understood like that, the learned appellate Judge did not choose to discuss much on the point of wilful default on the part of the respondents tenant and the bona fide requirement of the petitioners herein. Under the circumstances explained, the learned appellate Judge reached a conclusion that the tenants were not defaulters in payment of rents and the said point was not proved by the petitioners- landlord, but they proved that they require the schedule premises for bona fide reasons and occupation. To the facts of the present case, which are distinguishable, Section 10 (4) of the Act has no application. Hence, the Civil Revision Petition is allowed and the order of the learned Chief Judge, City Small Causes Court, Hyderabad, dated 24-7-1989 in R.A.No. 22 of 1985 is set-aside and I hold that the order of the learned II Additional Rent Controller, Hyderabad, dated 21-3-1985 passed in R.C.No. 288 of 1979 in so far as it relates to the point that the petitioners require the suit schedule premises for their personal occupation and for bona fide reasons is correct. Further, Section 10 (4) of the Act has no application to the present case. Hence, the respondents are liable to be evicted from the suit schedule premises.

The learned counsel for the respondents submitted that two years time may be granted to the respondents for vacating the suit schedule premises as it is very difficult to procure a house on rent in twin cities for which they have to pay huge advance and rent. However, the same is opposed by the learned counsel for the petitioners-landlord. Taking into consideration the submission made by the learned counsel for the respondents, time to vacate the suit schedule premises by the legal representatives of the original tenant i.e. the respondents herein is granted till the end of December, 1996. During this period, the respondents shall pay the rents regularly to the landlord and to maintain the schedule premises in good condition and they should not sublease the schedule premises to any other person. It is made clear that if the respondents violate any of the aforesaid conditions, the respondents will be disentitled to continue in possession of the schedule premises till the stipulated period i.e. upto the end of December, 1996.

Civil Revision Petition is accordingly allowed.