R.B. Babiammal and Another vs W.S. Savithri and Others

Ramesh Madhav Bapat, J.—The petitioners herein were the respondents 1 and 2 in R.C.C. No. 7 of 1986 filed by the respondents herein in the Court of the Principal District Munsif-cum-Rent Controller, Tirupathi. The petitioners therein had filed eviction petition against the respondents therein for recovery of the petition schedule premises under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 mainly on two grounds. The first ground agitated by the petitioners therein that the respondents made the change of user of the petition schedule premises from residential to non-residential in breach of the lease agreement. The second point was raised by the petitioners therein that the respondents therein committed default in payment of rent.

On presentation of Rent Control Case before the Rent Controller, the respondents therein were served with the notices. On their appearance they filed their counter and contended that the Rent Control Case in the present forum is not maintainable, that the Rent Controller had no jurisdiction to entertain the petition as the petition schedule premises were leased out for composite purposes. It was also denied by the respondents therein that they committed any default in payment of rent. It was further stated that they did not cause any waste to the property as alleged by the petitioners therein. With these averments, it was proved that the Rent Control Case be dismissed with costs.

It further appears from the record that the Rent Controller recorded the evidence of P.Ws. 1 to 3 on behalf of the petitioners and the evidence of R.Ws. 1 and 2 on behalf of the respondents. The petitioners filed certain documents and they were marked as Exs.A-1 to A-5. The respondents filed certain documents and they were marked as Exs.B-1 to B-6 and on hearing both sides the learned Rent Controller allowed the petition with costs and the respondents therein were directed to vacate the petition schedule premises and to deliver vacant possession within a month from the date of the order.

Being aggrieved by the aforesaid order and decretal order, the respondents therein carried the matter in appeal by filing C.M.A.No. 3 of 1991 in the Court of the Subordinate Judge, Tirupathi. The learned Judge heard both sides and the appeal filed by the respondents therein came to be dismissed. Against the said judgment and decree, the present revision petition has been filed by the respondents therein, who are the petitioners in this revision petition.

The learned Counsel Smt. P. Vijayalakshmi appearing on behalf of the petitioners herein submitted that as per the showing of the respondents herein that the lease was for the composite purpose. It was not either only for residential nor only for non-residential purpose. The learned Counsel for the petitioners herein invited my attention to para 7 sub-clause (4) of the Rent Control Petition in which the respondents herein had furnished the particulars to the Rent Controller regarding the leased premises u/s 28 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 in which the respondents herein have pleaded that the building is used for residential and non-residential purposes. With this pleading the learned counsel for the petitioners herein submitted that it is not necessary for the petitioners herein to prove that the lease was for the composite purpose and therefore submitted that the Rent Controller had no jurisdiction to entertain the Rent Control Case. The eviction suit ought to have been filed in the Civil Court.

While rebutting the aforesaid arguments, the learned Counsel for the respondents herein submitted that para 7 sub-clause (4) of the said petition only shows that for what purpose the building is used by the tenants but it does not mean initially the premises were let out for the composite purpose. The learned counsel Mr. P.S. Narayana appearing on behalf of the respondents herein also submitted that the evidence of the petitioners would go to show that the premises in question was leased out to them by the mother- in-law of the 2nd respondent herein and the mother of the first respondent herein. It was further submitted by the learned Counsel that the evidence of the petitioners herein shows that they are in possession of the original lease agreement but the said lease agreement was not produced on record. It was also brought to my notice by the learned Counsel for the respondents herein that the demised premises were originally owned by the mother of the first respondent herein. She had leased out the premises to the petitioners herein by executing the lease deed in their favour and afterwards the present respondents became the owners of the property by way of settlement deed. When it is admitted by the petitioners herein that they are in possession of the original lease agreement with them, the non-production of the original lease agreement on record would go to prove that the contention raised by the petitioners herein that the demised premises were leased out to them by the mother of the first respondent for composite purpose cannot be accepted. More over, the learned Counsel for the respondents herein submitted that adverse inference has to be drawn against the petitioners herein.

This Court finds good force in the arguments advanced by the learned Counsel for the respondents herein. The respondents herein in the body of the Rent Control Petition have specifically alleged that initially the lease was created only for residential purpose and not for any other purpose. But if it is a specific case of the petitioners that it was leased out for composite purpose and they are in possession of the original lease agreement, it was the duty of the petitioners herein to prove their averments by documentary evidence; in the absence of any such evidence on record, the adverse inference has to be drawn. This Court agrees with the proposition made by the learned Counsel for the respondents herein.

Taking the above facts into consideration, this Court holds that the contention raised by the petitioners herein that the Rent Controller had (sic. no) jurisdiction cannot be accepted.

The learned Counsel for the petitioners herein further submitted that the respondents herein have not given the specific period for which the present petitioners have committed default in payment of rent, but vaguely alleged that the petitioners (sic. respondents) herein also committed wilful default in payment of rent regularly. The learned Counsel for the petitioners herein submitted that unless a specific pleading is made in the Rent Control Petition, the petitioners herein cannot get benefit of so-called default committed by the petitioners herein.

The learned Counsel for the respondents herein drew my attention to the finding given by the Rent Controller and also by the Appellate Court on this issue. The learned Counsel for the respondents herein submitted that the Appellate Court as well as the Rent Control Court held that the petitioners herein have committed default in payment of rent. The petitioners herein could not produce any documents on record that the agreed rent was regularly paid by them. Under these circumstances, both the Courts below accepted the averments of the respondents herein that the petitioners herein committed default in payment of rent.

The learned Counsel for the Petitioners herein submitted that the original lease agreement was for the composite purpose and the petitioners herein are running a factory and they are manufacturing brass and aluminium vessels. When the lease was given for the composite purpose, it cannot be said that the property was wasted by the petitioners herein.

While rebutting the aforesaid arguments, the learned Counsel for the respondents herein submitted that the petitioners herein were not able to prove that the lease was for the composite purpose and in that event it must be held that the lease was only for residential purpose and by doing the manufacturing work in the residential premises itself is a waste to the property, no other evidence is required to be led on behalf of the landlords.

The last ground which was agitated by the respondents herein that they required the premises for their own use and occupation bona fide. On this issue, the learned Counsel for the respondents herein submitted that it is not in dispute that the property in question was originally owned by the mother of the first respondent herein and the said property was settled in the name of both the respondents herein and they have no alternative accommodation of their own and therefore their demand for personal use and occupation is a bona fide demand. Both the Courts below held that the demand of the respondents herein is bona fide and the said point was also decided in favour of the respondents herein and the eviction of the petitioners herein was ordered.

The present revision has been filed being aggrieved by the order of the First Appellate Court confirming the order and decretal order passed by the Rent Controller. While exercising the revisional jurisdiction u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, the High Court has to satisfy itself as to the legality, regularity or of propriety of such order or proceeding and may pass such an order in reference thereto as it thinks fit. All these ingredients are absolute in the present revision. The entire evidence led on behalf of the parties is on facts. This Court holds that the facts on record are properly appreciated by both the Courts below. It is pertinent to note that the petitioners herein did not lead any oral evidence by examining themselves whereas a third party, who was acquainted with the facts, was put in the box and no specific reasons were assigned by the petitioners herein why they did not lead their oral evidence on the background that they are in possession of the original lease deed.

Considering the above aspect of the matter, this Court holds that there is no substance in the revision filed by the petitioners herein wherein this Court would be constrained to exercise the jurisdiction u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960.

Hence, the Civil Revision Petition stands dismissed with costs throughout, confirming the judgment and decree passed by the first Appellate Court and also confirming the order and decretal order passed by the learned Rent Controller.

(ON BEING MENTIONED)

This Civil Revision Petition was argued at length by the Counsel Smt. P. Vijayalakshmi appearing on behalf of the petitioners herein. Some queries were made by this Court during the course of arguments, but the learned Counsel for the petitioners herein was unable to explain and at her instance the matter was adjourned at least on 3 to 4 occasions. On every occasion when the query was made, the learned Counsel for the petitioners herein was unable to reply and at her instance, the matter was adjourned. On one occasion, the learned Counsel for the petitioners herein filed additional documents under Order 41 Rule 27, CPC with a prayer to receive them as additional evidence. Again a legal query was made, how the documents can be read in evidence at the revision stage without they being proved. The learned Counsel for the petitioners herein instead of giving legal reply to the query made by this Court, the learned Counsel submitted that it has been the practice of this High Court to receive the documents even though they are private documents at the stage of High Court. Though this Court did not agree with the submissions made by the learned Counsel, this Court told the learned Counsel that if at all such practice is prevalent in the High Court, this practice will not bind my Court.

It is pertinent to note that while filing the documents by way of additional evidence under Order 41 Rule 27, C.P.C. not a single prayer was (not) made in the application for remanding the matter for proving those documents and giving opportunity to the petitioners and the respondents to prove and disprove those documents. At that stage, this Court had made quarries with the learned Counsel Smt. P. Vijayalakshmi to enlighten this Court once again how those documents can be relied upon at this stage. Then the learned Counsel for the petitioners said that she is in a position to prove the fact how the decision of both the Courts below is contrary to law and submitted that the application filed to receive additional documents under Order 41 Rule 27, CPC is not pressed. When such submission was made, the said application was dismissed by this Court as not pressed.

Smt. P. Vijayalakshmi argued the matter at length, then the Counsel for the respondents argued the C.R.P., then it was posted for judgment on 16-7-1996. On 15-7-1996 a letter was filed by Smt. P. Vijayalakshmi for being mentioned. The letter in question reads as follows:

"In the above C.R.P. No. 2690/95 the arguments were heard by the Honourable Justice Ramesh Madhav Bapat and the matter was reserved for judgment. Mr. K. Venkatramaiah, a Senior Advocate appeared in the initial stages in this case. In the instant case, the lease is for composite lease, i.e., Residential and non-residential and in the petition filed in the R.C.C. itself in columns Nos.4 and 12 it is clearly mentioned the lease is both for the residential and the non-residential coupled with I filed a petition to receive the lease deed and other documents under Order 41 Rule 27 C.P.C. for receiving as additional evidence. The documents filed are germane to the merits of the case. When documents are sought to be received as additional evidence and also the eviction petition clearly speaks of composite lease, the eviction for residential purpose is not maintainable. Hence the case may be posted for being mentioned to make further representation in the interest of justice. Hence the case may be posted for being mentioned."

On 16-7-''996 the learned counsel Mr. K.Venkatramaiah appeared in the place of Smt. P. Vijaya Lakshmi and started arguing the matter at length. A quarry was made by this Court under what provisions of law, the matter can be argued once again on all points. The learned counsel submitted that there were some mistakes on the part of Smt. P. Vijaya Lakshmi, the learned counsel appearing for the petitioners herein, in not placing all the legal points before the Court. This Court allowed the learned counsel Mr. K. Venkatramaiah to argue the matter once again. The learned counsel argued the matter in the presence of the counsel for the other side. No new points were raised. All the points, which were argued by Smt. P. Vijayalakshmi, were repeated and those points will (sic. were) already considered in the above C.R.P.

The learned counsel Smt. P. Vijayalakshmi appearing on behalf of the petitioners herein at the earlier stage filed an affidavit with all false averments stating that the circumstances under which she did not press an application for receiving the documents by way of additional evidence under Order 41 Rule 27 C.P.C. The circumstances under which the learned counsel did not press the application for receiving and relying on the documents have been already stated in the foregoing paragraph. Therefore, this Court holds that the affidavit filed by Smt. P. Vijayalakshmi is totally an after thought and with due deliberation.

Under these circumstances, this Court holds that there is no merit in this C.R.P., and the submissions made by the learned senior counsel Mr. K. Venkatramaiah were already considered in the order and therefore it is held that this Civil Revision Petition is devoid of any merit and it is accordingly dismissed with costs throughout.

At the request of the learned counsel for the petitioners herein, six months time is granted to the petitioners herein for vacating the petition schedule premises and an undertaking to pay the entire rent and costs within 15 days from to-day as a condition precedent and further undertaking to the effect that they would not create any third party interest in the property.