V.V. Krishna Vara Prasad Vs. S. Surya Rao and ors. - Court Judgment

Excerpt:
- - kalasantha radha krishna, 1994(1)alt526 that failure to pay rent by the tenant after filing of eviction petition cannot be a ground for passing the order of eviction under section 10 (2) (i) of the act. these derisions are clearly in favour of the petitioner. i fail to see how this decision is of any help to the petitioner. the provisions of order 41 rule 22 can be clearly invoked by the respondent. it hag to be noticed that even in the eviction petition as well as in the evidence, the deceased landlord stated that the premises was required for the business to be carried on by his son.orders. dasaradha rama reddy, j.1. this is a revision petition filed by the tenant arising under the a.p. buildings (lease, rent and eviction) control act (for short 'the act')- the eviction petition was filed in october, 1986 (i) on the ground that the tenant was a wilful defaulter in the matter of payment of rents from may, 1986 to october, 1986; and (ii) on the ground of bona fide personal requirement. the premises is a non-residential one and regarding the rent while the petitioner's contention is that it is rs. 400/-, the respondent's contention is that it is rs. 450/-. but both the courts below found that the rent is rs. 450/- per month. the learned rent controller allowed the eviction petition on the ground of wilful default and personal requirement. regarding the acts of waste, however, he did not agree with the plea of the respondent-landlord. while considering the ground regarding wilful default, the learned rent controller referred to the admission of the tenant in the evidence that he paid rs. 6,400/- on 15-7-1988 representing the rental arrears for 16 months at the rate of rs. 400/- per month which, according to the petitioner is the rent, pursuant (sic) an order under section 11(4) of the act. against the order of the learned rent controller, the petitioner has preferred appeal before the principal sub-court, visakhapatnam. the learned prl. subordinate judge upheld the order of the rent controller on the ground of wilful default, while holding against the land-lord regarding the plea of bona fide requirement. regarding bona fide personal requirement, the learned appellate judge held that in view of the death of the landlord during the pendency of the appeal leaving behind his son, the requirement for his business can no longer subsist and that it is not clear for what purpose the son requires the premises. having lost in both the courts, the tenant has come up with this c.r.p.2. mr. v. ajay kumar, learned counsel for the petitioner contended that the orders of both the courts below cannot stand in view of the decision of the supreme court in modern hotel v. k. radhkrishna, air 1989 sc 1510 since the landlord is having rs. 6,000/- with him representing 15 months' rent as advance (and more than one year's rent if rent is taken at rs. 450/- per month) which is contrary to section 7(a)(ii) of the act and hence the tenant cannot be said to be a defaulter. there is no dispute that more than one year's advance rent even at the rate of rs. 450/- per month was with the landlord and that the tenant is entitled to adjust the amount as against the rent that falls due for the period for which the advance was given. thus, as per the decision of the supreme court (1 supra), merely because the petitioner did not pay the rent from may, 1986 to october, 1986, the petitioner cannot be said to be defaulter. the learned counsel is correct in stating that the petitioner cannot be said to be defaulter as on the date of filing of eviction petition since one year's advance rent was lying with the landlord. but that does not help the tenant since admittedly he fell in arrears for more than a year during the pendency of eviction petition and the tenant paid rs. 6,400/- on 15-7-1988, which represents rental arrears of 13 months (may 87 to may 88) and rent for june 1988. mr. ajay kumar contended that as the subsequent arrears have been paid pursuant to the order under section 11(4) of the act, it does not come in the way of the petitioner and that it cannot be said that he is a defaulter. in support of this proposition, the learned counsel relied on the decision of justice d.j. jagannadha raju in ch. satyanarayana v. s. subba rao, 1994 (1) an.w.r. 291 and justice b.k. somasekhara in p. rajanna v. k. lalitha reddy, : air1996ap113 . in the first (2nd supra) case, eviction petition was filed for non-payment of rent from january to october 1982. the land lord also filed o.s. 857 of 1982 for recovering the arrears of rent. rents were not deposited in the civil court from march, 1982 to january 1983. the contention of the landlord was that even if the tenant was not in arrears as on date of filing eviction petition, subsequent default during the pendency of eviction petition is a valid ground for eviction. the learned judge held that if the landlord wanted to evict on ground of subsequent default, he ought to have filed petition under section 11 of the act and asked for striking off the defence and that eviction would be justified if there was default in payment of rents for the period january, 1982 to 20th october, 1982 and that the proceedings in the civil court and the delayed deposit of rents in the civil court cannot be counted against the tenant. in the second case (3 supra), it was held by justice b.k. somasekhara, distinguishing the decision of justice j. eswara prasad in d.l. satyanarayana v. kalasantha radha krishna, : 1994(1)alt526 that failure to pay rent by the tenant after filing of eviction petition cannot be a ground for passing the order of eviction under section 10 (2) (i) of the act. these derisions are clearly in favour of the petitioner. but as against these, the learned counsel for the respondent mr. t.s. anand relied on palipatha rathanamaiah chetty v. yalavaluri ramalingaiah, 1986 (2) alt 553 = 1986 (2) aplj 357 the decision of justice ranga reddy in g. murali krishna v. p. mahalakshmi, : 1992(3)alt316 and satyanarayana's case. in the first case (5 supra) which was rendered by a division bench consisting of their lordships justice b.p. jeevan reddy, as he then was, and justice m.n. rao, it was held that the landlord is entitled to seek eviction of the tenant for subsequent default for payment of rent committed by him although he deposited rent in the court under section 11(1) of the act. following this decision of the division bench, justice ranga reddy, while allowing the landlord's revision petition in muralikrishna's case6, distinguished the decision of justice jagannadha raju in (2 supra) on the/ground that this decision implied that if the landlord wants to get the tenant evicted for non-payment of rent for the period subsequent to the filing of r.c.c., he should have made an application under section 11 of the act for striking off the defence of the tenant. this decision was followed by justice eswara prasad in (4 supra). though there is conflict of view between the decisions of justice ranga reddy and justice eswara prasad on the one hand and of justice d.j. jagannadha raju and justice b.k. somasekhara on the other, there is no necessity to refer the matter to division bench, as the decisions of justice jagannadha raju and justice b.k. somasekhara are with due respect, per incuriam as they have not noticed the decision of the division bench (5 supra).3. both the courts below have held that the petitioner was in default from may, 1986 to may 1988 and ordered eviction. the plea that the petitioner was not in default atleast upto april 1987 in view of the decision of the supreme court in modern hotel case (1 supra) was not accepted by the appellate court on the ground that the full text of the judgment of the high court where the decision of the supreme court was referred was not placed before the court. however, this does not affect the decision of the courts below since, as stated above, in view of the petitioner's wilful default for the period may 1987 to may 1988 (13 months) during the pendency of the eviction petition, he is liable to be evicted.4. as already seen, the learned rent controller has ordered eviction on the ground of bonafide personal requirement, while the appellate court has held that in view of the death of the landlord during the pendency of the appeal, eviction petition cannot be ordered on the ground of bonafide personal requirement. mr. t.s. anand, the learned counsel for the respondents has challenged the decision of the appellate court on this point while supporting the order of eviction. it is submitted that he is entitled to do so under order 41 rule 22 c.p.c. though he has not filed cross-objections. he also submits that order 41 rule 22 is applicable to rent control proceedings as held by this court in sri saibaba cloth emporium v. sanjeevamma, 1989 (3) alt 588 = 1989 (2) aplj 487 . it is also his submission that there is no need for filing cross-objections as the eviction petition was allowed by the appellate court on the other ground namely, the ground of wilful default. mr. ajay kumar, the learned counsel for the petitioner has raised a preliminary objection that the petitioner cannot raise this ground taking recourse to order 41 rule 22. he relied on a decision of the supreme court in choudhary sahu v. state of bihar, air 1982 sc 98. in that case, the land owner who was awarded 12 units under the bihar land reforms (fixation of ceiling area and acquisition of surplus land) act, 1961, filed appeal before the commissioner against the order of the collector claiming that he is entitled to 15 units. the commissioner while passing order on the appeal, set aside the entire order of the collector even regarding the units allotted to the land owner even though there was no appeal by the state. thereupon the land owner filed writ petition in the high court which dismissed the petition and confirmed the order of the commissioner invoking order 41 rule 22. the decision of the high court was reversed by the supreme court which held that the allotment of 12 units by the collector ought not to have been disturbed by the commissioner or by the high court in the absence of appeal by the state and that provisions of order 41 rule 22 or rule 33 are not applicable ; to the case. i fail to see how this decision is of any help to the petitioner. here, as already seen, the order of the appellate court is entirely in favour of the respondent, who obtained order of eviction. the appellate court has decided the question of wilful default in favour of the respondent while holding against him on the other ground namely, bona fide personal requirement. the provisions of order 41 rule 22 can be clearly invoked by the respondent. in shrinivas v. keshri chand, cited by the learned counsel for the respondent, an election petition was dismissed on merits and the respondent who was the returned candidate sought to support the order, by raising a plea that the election petition is liable to be dismissed for non-joinder of necessary parties. the objection taken was that he cannot raise that ground as he has not filed cross-objections. the rajasthan high court held that under order 41 rule 22, the returned candidate is entitled to take that plea and support the order of dismissal of the election petition. this decision supports the learned counsel for the respondent. thus, the respondent is entitled to raise the plea of bona fide requirement.5. now the question is whether the respondents need the premises for their bona fide personal requirement. the eviction petition was originally filed on the ground that the land owner requires the premises for business purposes. after his death during the pendency of the appeal, the son came on record. however, the petition was not amended nor the son gave any evidence in the appeal. it hag to be noticed that even in the eviction petition as well as in the evidence, the deceased landlord stated that the premises was required for the business to be carried on by his son. the reasoning of the appellate court that the details of the business are not given is not tenable in view of the decision of the division bench of this court in b. eswaratnma v. a. appa rao, 1988 (1) alt 366 = 1988 (1) aplj 66 wherein it was held that by not stating the nature and particulars of the business in the petition, it cannot be said that any prejudice will be caused to the tenant and that it is not necessary to state the nature and particulars of the business in the petition itself. p.w.1, the deceased landlord has stated in his evidence that he was selling fancy toys in a rented shop situated at a distance of 100 yards from the schedule premises and that he wants to develop his business and he has no other premises in visakhapatnam. he has also stated that his son wants to do the business. in the cross-examination, he has stated that his son is assisting him in his business. merely because the landlord died, it cannot be said that the son does not bona fide require the premises for the business. as already seen, the father stated in his evidence that his son is assisting him in the existing fancy toy business. the appellate court erred in disturbing the finding of the rent controller on the mere ground that the subsequent death of the landlord disentitles the son to seek eviction on the ground of bona fide personal requirement. the other reasoning given by the appellate court, that there is insufficient evidence as to whether the requirement is residential or non-residential is not correct since no such plea was raised in the counter to the eviction petition. thus, the landlord is entitled to seek eviction on both the grounds namely, wilful default and bona fide personal requirement.6. the civil revision petition is accordingly dismissed and eviction petition is ordered. the petitioner is granted time till 31-12-1996 for vacating the premises subject to the condition that he pays rents at the rate of rs. 450/-per month. no costs.

Judgment:
ORDER

S. Dasaradha Rama Reddy, J.

1. This is a revision petition filed by the tenant arising under the A.P. Buildings (Lease, Rent and Eviction) Control Act (for short 'the Act')- The eviction petition was filed in October, 1986 (i) on the ground that the tenant was a wilful defaulter in the matter of payment of rents from May, 1986 to October, 1986; and (ii) on the ground of bona fide personal requirement. The premises is a non-residential one and regarding the rent while the petitioner's contention is that it is Rs. 400/-, the respondent's contention is that it is Rs. 450/-. But both the Courts below found that the rent is Rs. 450/- per month. The learned Rent Controller allowed the eviction petition on the ground of wilful default and personal requirement. Regarding the acts of waste, however, he did not agree with the plea of the respondent-landlord. While considering the ground regarding wilful default, the learned Rent Controller referred to the admission of the tenant in the evidence that he paid Rs. 6,400/- on 15-7-1988 representing the rental arrears for 16 months at the rate of Rs. 400/- per month which, according to the petitioner is the rent, pursuant (sic) an order Under Section 11(4) of the Act. Against the order of the learned Rent Controller, the petitioner has preferred appeal before the Principal Sub-Court, Visakhapatnam. The learned Prl. Subordinate Judge upheld the order of the Rent Controller on the ground of wilful default, while holding against the land-lord regarding the plea of bona fide requirement. Regarding bona fide personal requirement, the learned appellate Judge held that in view of the death of the landlord during the pendency of the appeal leaving behind his son, the requirement for his business can no longer subsist and that it is not clear for what purpose the son requires the premises. Having lost in both the Courts, the tenant has come up with this C.R.P.

2. Mr. V. Ajay Kumar, learned Counsel for the petitioner contended that the orders of both the Courts below cannot stand in view of the decision of the Supreme Court in Modern Hotel v. K. Radhkrishna, AIR 1989 SC 1510 since the landlord is having Rs. 6,000/- with him representing 15 months' rent as advance (and more than one year's rent if rent is taken at Rs. 450/- per month) which is contrary to Section 7(a)(ii) of the Act and hence the tenant cannot be said to be a defaulter. There is no dispute that more than one year's advance rent even at the rate of Rs. 450/- per month was with the landlord and that the tenant is entitled to adjust the amount as against the rent that falls due for the period for which the advance was given. Thus, as per the decision of the Supreme Court (1 supra), merely because the petitioner did not pay the rent from May, 1986 to October, 1986, the petitioner cannot be said to be defaulter. The learned Counsel is correct in stating that the petitioner cannot be said to be defaulter as on the date of filing of eviction petition since one year's advance rent was lying with the landlord. But that does not help the tenant since admittedly he fell in arrears for more than a year during the pendency of eviction petition and the tenant paid Rs. 6,400/- on 15-7-1988, which represents rental arrears of 13 months (May 87 to May 88) and rent for June 1988. Mr. Ajay Kumar contended that as the subsequent arrears have been paid pursuant to the order Under Section 11(4) of the Act, it does not come in the way of the petitioner and that it cannot be said that he is a defaulter. In support of this proposition, the learned counsel relied on the decision of Justice D.J. Jagannadha Raju in Ch. Satyanarayana v. S. Subba Rao, 1994 (1) An.W.R. 291 and Justice B.K. Somasekhara in P. Rajanna v. K. Lalitha Reddy, : AIR1996AP113 . In the first (2nd supra) case, eviction petition was filed for non-payment of rent from January to October 1982. The land lord also filed O.S. 857 of 1982 for recovering the arrears of rent. Rents were not deposited in the Civil Court from March, 1982 to January 1983. The contention of the landlord was that even if the tenant was not in arrears as on date of filing eviction petition, subsequent default during the pendency of eviction petition is a valid ground for eviction. The learned Judge held that if the landlord wanted to evict on ground of subsequent default, he ought to have filed petition Under Section 11 of the Act and asked for striking off the defence and that eviction would be justified if there was default in payment of rents for the period January, 1982 to 20th October, 1982 and that the proceedings in the Civil Court and the delayed deposit of rents in the Civil Court cannot be counted against the tenant. In the second case (3 supra), it was held by Justice B.K. Somasekhara, distinguishing the decision of Justice J. Eswara Prasad in D.L. Satyanarayana v. Kalasantha Radha Krishna, : 1994(1)ALT526 that failure to pay rent by the tenant after filing of eviction petition cannot be a ground for passing the order of eviction Under Section 10 (2) (i) of the Act. These derisions are clearly in favour of the petitioner. But as against these, the learned counsel for the respondent Mr. T.S. Anand relied on Palipatha Rathanamaiah Chetty v. Yalavaluri Ramalingaiah, 1986 (2) ALT 553 = 1986 (2) APLJ 357 the decision of Justice Ranga Reddy in G. Murali Krishna v. P. Mahalakshmi, : 1992(3)ALT316 and Satyanarayana's case. In the first case (5 supra) which was rendered by a Division Bench consisting of their Lordships Justice B.P. Jeevan Reddy, as he then was, and Justice M.N. Rao, it was held that the landlord is entitled to seek eviction of the tenant for subsequent default for payment of rent committed by him although he deposited rent in the Court Under Section 11(1) of the Act. Following this decision of the Division Bench, Justice Ranga Reddy, while allowing the landlord's revision petition in Muralikrishna's case6, distinguished the decision of Justice Jagannadha Raju in (2 supra) on the/ground that this decision implied that if the landlord wants to get the tenant evicted for non-payment of rent for the period subsequent to the filing of R.C.C., he should have made an application Under Section 11 of the Act for striking off the defence of the tenant. This decision was followed by Justice Eswara Prasad in (4 supra). Though there is conflict of view between the decisions of Justice Ranga Reddy and Justice Eswara Prasad on the one hand and of Justice D.J. Jagannadha Raju and Justice B.K. Somasekhara on the other, there is no necessity to refer the matter to Division Bench, as the decisions of Justice Jagannadha Raju and Justice B.K. Somasekhara are with due respect, per incuriam as they have not noticed the decision of the Division Bench (5 supra).

3. Both the Courts below have held that the petitioner was in default from May, 1986 to May 1988 and ordered eviction. The plea that the petitioner was not in default atleast upto April 1987 in view of the decision of the Supreme Court in Modern Hotel case (1 supra) was not accepted by the appellate Court on the ground that the full text of the judgment of the High Court where the decision of the Supreme Court was referred was not placed before the Court. However, this does not affect the decision of the Courts below since, as stated above, in view of the petitioner's wilful default for the period May 1987 to May 1988 (13 months) during the pendency of the eviction petition, he is liable to be evicted.

4. As already seen, the learned Rent Controller has ordered eviction on the ground of bonafide personal requirement, while the appellate Court has held that in view of the death of the landlord during the pendency of the appeal, eviction petition cannot be ordered on the ground of bonafide personal requirement. Mr. T.S. Anand, the learned counsel for the respondents has challenged the decision of the appellate Court on this point while supporting the order of eviction. It is submitted that he is entitled to do so under Order 41 Rule 22 C.P.C. though he has not filed cross-objections. He also submits that Order 41 Rule 22 is applicable to Rent Control proceedings as held by this Court in Sri Saibaba Cloth Emporium v. Sanjeevamma, 1989 (3) ALT 588 = 1989 (2) APLJ 487 . It is also his submission that there is no need for filing cross-objections as the eviction petition was allowed by the appellate Court on the other ground namely, the ground of wilful default. Mr. Ajay Kumar, the learned Counsel for the petitioner has raised a preliminary objection that the petitioner cannot raise this ground taking recourse to Order 41 Rule 22. He relied on a decision of the Supreme Court in Choudhary Sahu v. State of Bihar, AIR 1982 SC 98. In that case, the land owner who was awarded 12 units under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, filed appeal before the Commissioner against the order of the Collector claiming that he is entitled to 15 units. The Commissioner while passing order on the appeal, set aside the entire order of the Collector even regarding the units allotted to the land owner even though there was no appeal by the State. Thereupon the land owner filed Writ Petition in the High Court which dismissed the petition and confirmed the order of the Commissioner invoking Order 41 Rule 22. The decision of the High Court was reversed by the Supreme Court which held that the allotment of 12 units by the Collector ought not to have been disturbed by the Commissioner or by the High Court in the absence of appeal by the State and that provisions of Order 41 Rule 22 or Rule 33 are not applicable ; to the case. I fail to see how this decision is of any help to the petitioner. Here, as already seen, the order of the appellate Court is entirely in favour of the respondent, who obtained order of eviction. The appellate Court has decided the question of wilful default in favour of the respondent while holding against him on the other ground namely, bona fide personal requirement. The provisions of Order 41 Rule 22 can be clearly invoked by the respondent. In Shrinivas v. Keshri Chand, cited by the learned counsel for the respondent, an Election Petition was dismissed on merits and the respondent who was the returned candidate sought to support the order, by raising a plea that the Election Petition is liable to be dismissed for non-joinder of necessary parties. The objection taken was that he cannot raise that ground as he has not filed cross-objections. The Rajasthan High Court held that under Order 41 Rule 22, the returned candidate is entitled to take that plea and support the order of dismissal of the Election Petition. This decision supports the learned counsel for the respondent. Thus, the respondent is entitled to raise the plea of bona fide requirement.

5. Now the question is whether the respondents need the premises for their bona fide personal requirement. The eviction petition was originally filed on the ground that the land owner requires the premises for business purposes. After his death during the pendency of the appeal, the son came on record. However, the petition was not amended nor the son gave any evidence in the appeal. It hag to be noticed that even in the eviction petition as well as in the evidence, the deceased landlord stated that the premises was required for the business to be carried on by his son. The reasoning of the appellate Court that the details of the business are not given is not tenable in view of the decision of the Division Bench of this Court in B. Eswaratnma v. A. Appa Rao, 1988 (1) ALT 366 = 1988 (1) APLJ 66 wherein it was held that by not stating the nature and particulars of the business in the petition, it cannot be said that any prejudice will be caused to the tenant and that it is not necessary to state the nature and particulars of the business in the petition itself. P.W.1, the deceased landlord has stated in his evidence that he was selling fancy toys in a rented shop situated at a distance of 100 yards from the schedule premises and that he wants to develop his business and he has no other premises in Visakhapatnam. He has also stated that his son wants to do the business. In the cross-examination, he has stated that his son is assisting him in his business. Merely because the landlord died, it cannot be said that the son does not bona fide require the premises for the business. As already seen, the father stated in his evidence that his son is assisting him in the existing fancy toy business. The appellate Court erred in disturbing the finding of the Rent Controller on the mere ground that the subsequent death of the landlord disentitles the son to seek eviction on the ground of bona fide personal requirement. The other reasoning given by the appellate Court, that there is insufficient evidence as to whether the requirement is residential or non-residential is not correct since no such plea was raised in the counter to the eviction petition. Thus, the landlord is entitled to seek eviction on both the grounds namely, wilful default and bona fide personal requirement.

6. The Civil Revision Petition is accordingly dismissed and eviction petition is ordered. The petitioner is granted time till 31-12-1996 for vacating the premises subject to the condition that he pays rents at the rate of Rs. 450/-per month. No costs.