Sukandraj Jain vs Ram Singh (died) per L.Rs.

Bilal Nazki, J.—The appellate Court confirmed the order of eviction passed by the Rent Controller on the grounds of wilful default in payment of rent and also on bona fide requirement of one of the respondents in appeal. On the ground of securing additional accommodation and on the ground of nuisance and waste, the appellate Court did not agree with the Rent Controller, Hence, this revision is filed by the tenant.

The petitioner/tenant contends that the Courts below have erred in law in holding that he was a wilful defaulter as he had sent the rent for the month of April, 2000 under Ex.R-4 money order and the same was returned with postal endorsement ''refused''. On bona fide requirement, the petitioner contends that admittedly one of the mulgies had fallen back which the landlords had let to an auto mechanic and if really P.W.1 (respondent No. 4 in the appeal) was in need of any of the mulgies he would have occupied the same and therefore, it was clear that P.W.1 was not in need of he schedule premises for his business. It was also contended that respondent No. 4 for whom the mulgi was sought was an actor and was acting in several movies, television serials and other plays and in view of his profession of acting, he was not expected to run a shop. The finding on these two issues i.e., wilful default and bona fide requirement, has been given by the Rent Controller as well as the appellate Court on the bass of the evidence. The Rent Controller framed point No. 1 as far as wilful default was concerned and for personal requirement point No. 4 was framed. On point No. 1 the Rent Controller found that the tenant was conducting business of a kirana store under the name and style of Rajesh General Stores, monthly rent was Rs. 400/- and the rent was payable by 5th of each succeeding month. The tenant was irregular in paying the rents and according to the landlords, the tenant had to pay the rents for the months of April and May, 2000.The tenant submitted in his testimony that under Ex.R-4, he sent the money order addressing it to one Dilip Singh. The money order was returned with an endorsement ''refused''. Then he sent the rent by way of a demand draft. Ex.P-2 was the postal cover containing the demand draft and a letter. Ex.P-3 was the demand draft dated 27-5-2000 for a sum of Rs. 400/-in the name of one Mr. Dilip Singh. Ex.P-4 was the covering letter dated 27-5-2000. The demand draft was sent with a cover note. The cover note was addressed to Mr. Dilip Singh. The demand draft was also in the name of Mr. Dilip Singh. Dilip Singh had died 20 years before. When the tenant was put a question when he appeared, as a witness, was he aware that Dilip Singh died 20 years before? He answered in the affirmative. Since the demand draft was sent at the address of dead person and the demand draft was in the name of a dead person, even if it had been accepted by anybody in the house of Dilip Singh, the demand draft could not have been encahsed. The tenant knew that Dilip Singh had died and he also knew that the demand draft that he was sending could not be encashed. The tenant also accepted that he had sent Ex.P-4 letter on 27-5-2000. which was again addressed to Dilip Singh, in which it was mentioned that Dilip Singh was avoiding acceptance of the rent. In this letter, he also mentioned that the said Dilip Singh had refused to receive the money order, therefore, he was sending him the rent of Rs. 400/-through demand draft. The appellate Court found that the money order which was sent by the tenant was refused by the mother of P.W.1 who was not the landlady and in case the rent was refused when sent through money order, the tenant was bound to take steps in terms of Section 8(5) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the Act"). Instead of taking steps u/s 8(5) of the Act of depositing the rents before the Rent Controller, he sent the demand draft in the name of Mr. Dilip Singh, who had died 20 years before. In this view of the matter, the findings of the Rent Controller and the appellate Court with regard to wilful default cannot be interfered with and it appears that there has been wilful default by the petitioner.

Coming to the second ground of personal necessity, the fourth petitioner in the Eviction Petition (R.C.) was examined as P.W.1. He stated that he was a postgraduate. He had conducted business of bakery and confectionary at Karkhana, Secunderabad in partnership and the partnership had been dissolved and since then he was not doing any business. He wanted to set up his own business of bakery and confectionary. This testimony of P.W.1 according to the Rent Controller, was not even disputed by the tenant. The appellate Court also agreed with the conclusions of the Rent Controller. But it was argued before the appellate Court as is argued before this Court that during pendency of the proceedings, the landlords secured vacant possession of another mulgi, which was occupied by a Cobbler, and let out the same to an auto workshop, but the appellate Court found that such matters could not be decided on the basis of contentions raised at the hearing. If such a thing had happened, during the pendency of the proceedings, the tenant could have amended his pleadings and could have also put such alleged facts to the landlord. Since this was not pleaded at all and during the cross-examination of the landlord he was not even asked whether he had secured the vacant possession of another shop during the pendency of these proceedings, therefore, on such an argument, the eviction ordered cannot be set aside. I do not find that the findings of the Rent Controller and the appellate Court with regard to personal necessity of the schedule premises by one of the respondents can be interfered with.

Learned Counsel for the petitioner has referred to a judgment reported in P. Rajanna Vs. K. Lalitha Reddi alias Chinnamma Devi and another, but I do not find that this judgment is relevant for the purpose of the present case.

For the reasons stated above, the revision petition fails and is accordingly dismissed. No order as to costs.

However, in the interest of justice, the petitioner is granted three moths time from to-day to vacate the premises. He shall give a undertaking before the trial Court to the effect that he shall vacate the premises and hand over the possession to the respondents before expiry of the period of three months. This undertaking shall be given within a period of fifteen days. There shall be stay of eviction for this period of fifteen days from to-day. If such an undertaking is given, the stay of eviction shall continue till the expiry of three month''s period. However, if the petitioner fails to give the undertaking, the respondents shall be at liberty to seek eviction. The petitioner shall continue to pay the rents till he vacates the premises.