THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
CIVIL REVISION PETITION Nos.1155 and 1159 of 2022
COMMON ORDER:
This order will dispose of C.R.P.Nos.1155 and 1159 of
2022.
2. Heard Mr. Vedula Srinivas, learned Senior Counsel for
Ms. Vedula Chitralekha, learned counsel for the petitioner
and Mr. Shyam S.Agarwal, learned counsel for respondent
No.1.
3. M/s.Sri Sai Syndicate is the petitioner whereas Hyderabad Cut Piece Cloth Merchant Association is respondent No.1.
4. The two revision petitions have been filed under Section 22 of the Telangana Buildings (Lease, Rent and Eviction) Control Act, 1960.
5. Respondent No.1 as the petitioner had instituted R.C.No.350 of 2005 before IV Additional Rent Controller at Hyderabad against Smt.Sumitra Bai and M/s.Sri Sai Syndicate (who were arrayed as respondents) for eviction of 2 respondent No.1 being the defaulter. It was alleged that respondent No.1 was a tenant of the petitioner, Hyderabad Cut Piece Cloth Merchant Association (hereafter, parties will be referred to as so referred in the R.C. proceedings).
6. It was stated that respondent No.1 was a tenant of the petitioner in respect of the petition schedule mulgi having obtained the same on lease from the petitioner in the year 1990 at a monthly rent of Rs.300 exclusive of electricity charges. On enhancement, the rent became Rs.363 per month. Respondent No.1 paid the monthly rent upto March, 2005 to the petitioner but thereafter defaulted in paying rent. Being a wilful defaulter, respondent No.1 was liable to be evicted from the petition schedule premises.
7. Petitioner received a notice dated 21.01.2005 from respondent No.2 i.e., M/s.Sri Sai Syndicate calling upon the petitioner to receive the rent in respect of the petition schedule premises. Petitioner replied on 01.02.2005 stating that respondent No.2 was not the tenant; rather it was a stranger. Question of accepting rent did not arise. The 3 banker's cheques which were sent by respondent No.2 were returned. Thereafter, respondent No.2 sent money orders to the petitioner which were also not accepted by the petitioner.
8. It is stated that respondent No.2 filed a suit for perpetual injunction being O.S.No.1192 of 2005 on the file of VIII Junior Civil Judge, City Civil Court, Hyderabad against the petitioner on the ground that it was in possession of the petition schedule premises by virtue of a partnership deed entered into between respondent Nos.1 and 2.
9. Respondent No.2 also filed R.C.No.103 of 2006 on the file of IV Additional Rent Controller, Hyderabad for deposit of rent. On the other hand, respondent No.1 filed a suit being O.S.No.481 of 2005 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad for eviction of respondent No.2. In the above backdrop, petitioner contended that respondent No.1 had sublet the petition schedule premises to respondent No.2 without consent or knowledge of the petitioner, thus contravened clause 4 of the lease deed. As such, respondents were liable to be evicted from the petition schedule premises. 4
10. At this stage, petition schedule premises may be described which is as follows:
All that shop No.21-1-663/2, Hyderabad Cut Piece Cloth Merchant Association Building, Ricab Gunj, Hyderabad, admeasuring 360 square feet, bounded by:
North : Shop No.21-1-663/1 (Kamal Cloth Shop) South : Shop No.21-1-663/3, (Chagan Textiles) East : Road (20 feet) West : Sattar Market.
11. Respondent No.1 filed counter. Stand taken in the counter was that due to disputes between respondent No.1 and her sub tenant Ms.Rupali Dilip Mukkavar, she could not pay the rent. Non payment of monthly rent from April, 2005 onwards was not wilful but due to disputes created by the sub tenant. Respondent No.1 admitted that she had sublet the petition schedule premises and filed a separate suit being O.S.No.481 of 2005 for eviction against the sub tenant which was pending on the file of VII Senior Civil Judge, City Civil Court, Hyderabad. Respondent No.1, therefore, prayed for dismissal of R.C.No.350 of 2005.5
12. In its counter affidavit, respondent No.2 stated that respondent No.1 was the tenant of the petition schedule premises. However, the same was run by Mahendra Prasad Agarwal in the name of Hyderabad Silk Mills. In March, 2004, Sri Dilip Kumar Mukkavar who is the father of Ms. Rupali Dilip Mukkavar gave Rs.1,26,000.00 to Mahendra Prasad Agarwal who was none other than the President of the petitioner i.e., Hyderabad Cut Piece Cloth Merchant Association. In September, 2004, respondent No.1, respondent No.2 and Sri Dilip Kumar Mukkavar had entered into a partnership agreement by virtue of which respondent No.2 started business and was paying the rent regularly @ Rs.856 to the President of the petitioner through respondent No.1, President of the petitioner being none other than brother-in-law of respondent No.1. It was further stated that not only the rents were received by the petitioner from respondent No.2 but petitioner was also providing facilities to the customers of respondent No.2 by allowing them to stay in its guest house.
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13. R.C.No.350 of 2005 was heard by the learned Rent Controller along with R.C.No.103 of 2006 filed by respondent No.2.
14. Petitioner examined its Secretary as P.W.1 and exhibited documents P.1 to P.6 to prove its case. Respondent No.2 examined Ms.Rupali Dilip Mukkavar as R.W.1, her father Mr. Dilip Kumar Mukkavar as R.W.2 and presented documents marked as Exs.R.1 to R.9 to disprove the evidence of the petitioner.
15. During the hearing, it was noticed that respondent No.1 i.e., Smt. Sumitra Bai did not contest the proceedings seriously. On the other hand, respondent No.2 was trying to get the matter delayed.
16. After due consideration, learned Rent Controller framed the following amongst other issues for consideration:
(1) Whether respondent No.2 was liable for eviction?
(2) Whether the petition in R.C.No.350 of 2005 was maintainable having been filed by the Secretary of the petitioner?7
17. Learned Rent Controller noted that on the basis of the pleadings and evidence on record, ownership and status of the petitioner as landlord of the petition schedule premises was not in dispute. Tenancy of respondent No.1 and non payment of monthly rent from April, 2005 onwards by respondent No.1 was also not in dispute. Noting that petitioner had sought for eviction of respondent Nos.1 and 2 on the grounds of wilful default and breach of lease deed, learned Rent Controller examined the evidence on record. He examined the lease deed being Ex.P.1 entered into between petitioner and respondent No.1 on 17.10.1990. Clause 4 of the lease deed categorically stated that the lessee should not sublet the petition schedule premises to any other person. However, the record showed that respondent No.2 was in possession of the petition schedule premises. Respondent No.2 could not establish as to how it came into possession of the petition schedule premises. Thus, there was breach of lease deed Ex.P.1. Learned Rent Controller also referred to Section 10(2)(i)(ii)(a) of the Telangana Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short, 'the Act') which 8 provided that not only wilful default but transferring the right of the lessee of possession was also a ground for eviction. Therefore, the issue framed as to whether respondent No.2 was liable for eviction was decided in favour of the petitioner and against the respondents by holding that respondent No.2 was liable for eviction from the petition schedule premises. However, learned Rent Controller on the basis of the evidence on record held that Secretary of the petitioner was not authorised to institute legal proceedings and authorisation letter from the executive committee to institute legal proceedings was necessary. But no such authorisation was forthcoming. Therefore, this point was decided in favour of the respondents and against the petitioner by holding that the petition in R.C.No.350 of 2005 was not maintainable being filed by Secretary of the petitioner.
18. Based on the above, learned Rent Controller declined to grant any relief to the petitioner. Accordingly, R.C.No.350 of 2005 was dismissed vide order dated 07.11.2014. By the aforesaid order R.C.No.103 of 2006 filed by respondent No.2 9 was dismissed holding that respondent No.2 had no locus to deposit rent in respect of the petition schedule premises.
19. Aggrieved by the order dated 07.11.2014, petitioner filed appeal under Section 20(1) of the Act before the Chief Judge, City Small Causes Court, Hyderabad which was registered as R.C.A.No.258 of 2014. However, no appeal was filed against dismissal of R.C.No.103 of 2006 which finding thus attained finality.
20. In appellate proceedings, petitioner filed certified copy of resolution adopted by the executive committee of the petitioner dated 05.07.2005 resolving to initiate legal proceedings against the respondents authorising the Secretary in this regard and asserted that Secretary had the competence to file R.C.No.350 of 2005. This was registered as I.A.No.771 of 2014 in R.C.A.No.258 of 2014. Leave was sought for to receive the certified copy as additional evidence.
21. In appeal proceedings, respondent No.1 remained ex parte. It was a contest between petitioner and respondent No.2. After hearing learned counsel for the parties and on a 10 perusal of the materials on record, learned lower appellate Court framed the following issues for consideration:
(1) Whether filing of additional evidence was necessary to appreciate the evidence on record in R.C.No.350 of 2005?
(2) Whether Secretary of the petitioner was entitled to file R.c.No.350 of 2005 in the capacity of landlord of respondent No.1?
22. Learned lower appellate Court noted that R.C.A.No.258 of 2014 was earlier dismissed on 03.04.2017. Review filed by the petitioner was also dismissed on 06.04.2018. Aggrieved by said dismissal, petitioner had filed C.R.P.No.6702 of 2018 which was allowed by the High Court on 29.11.2021 by setting aside the order dated 03.04.2017 and remanding the matter back to the learned lower appellate Court for a fresh decision. Learned lower appellate Court noted that the main issue in R.C.No.350 of 2005 was answered by the learned Rent Controller in favour of the petitioner, but only on the point of maintainability the same was dismissed. Learned lower appellate Court took the view that it was a curable defect and to cure such defect, additional evidence could be taken on record. Learned lower appellate Court examined the 11 resolution of the executive committee dated 05.07.2005 wherefrom it was found that the Secretary was empowered/authorised to initiate legal proceedings against the respondents. Further, landlord and tenant relationship was duly established in the trial. It was also established that respondent No.1 was the tenant and respondent No.2 was the sub tenant. But respondent No.1 did not come forward to contest the claim of the petitioner. Respondent No.2 being the sub tenant had no right to question claim of the petitioner. Therefore, learned lower appellate Court answered both the issues in favour of the petitioner and against the respondents. The appeal was allowed vide the judgment and order dated 28.03.2022 by setting aside the order dated 07.11.2014. Respondent Nos.1 and 2 were directed to vacate and handover the vacant and peaceful possession of the petition schedule premises to the petitioner within two months.
23. As noted above, the revision petition has been filed by respondent No.2, M/s.Sri Sai Syndicate in which the petitioner, Hyderabad Cut Piece Cloth Merchant Association has been arrayed as the respondent.
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24. It may also be mentioned that I.A.No.771 of 2014 in R.C.A.No.258 of 2014 was allowed by the learned lower appellate Court vide a separate order dated 28.03.2022 having regard to discussions made in R.C.A. No.258 of 2014. The concerned document i.e., resolution of the executive committee dated 05.07.2005 was received as additional evidence.
25. It is against this order dated 28.03.2022 passed in I.A.No.771 of 2014 in R.C.A.No.258 of 2014, that C.R.P.No.1159 of 2022 came to be filed by respondent No.2 as the petitioner wherein petitioner has been arrayed as the respondent.
26. Mr. Vedula Srinivas, learned Senior Counsel for the revision petitioner referred to Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC) and submitted that learned lower appellate Court did not consider as to whether proper reasons were set out to accept additional evidence. He submits that to accept the additional evidence, the document had to be proved. The document in question i.e., resolution of executive 13 committee of the petitioner dated 05.07.2005 is a highly contested document and therefore, it was required to be proved. But the said document was not proved in accordance with law and an unproved document could not have been relied upon by the learned lower appellate Court. Highlighting this aspect, he submits that learned lower appellate Court could not have relied upon the said document being not proved and being not even marked. Reliance on the said document has vitiated the impugned order.
27. On the other hand, Mr. Shyam S. Agarwal, learned counsel appearing for the respondent No.1 (petitioner) submits that Rule 11(2) of the Telangana Buildings (Lease, Rent and Eviction) Control Rules, 1961 is clearly distinguishable from the provisions contained in Order XLI Rule 27 of CPC. Therefore, learned lower appellate Court was justified in accepting the additional evidence. He further submits that under the aforesaid statute, person receiving rent is also a landlord. It is evident that the Secretary of the petitioner was receiving rent. Therefore, he was the landlord. Status of the petitioner as landlord was clearly admitted and 14 not disputed by anybody. It came on record that revision petitioner was the sub tenant of Smt. Sumitra Bai who did not contest the proceedings. It was also admitted that the monthly rent was not paid by either of the respondents from April, 2005 onwards. Finding of the learned Rent Controller to that effect was not challenged by the revision petitioner in the appeal which therefore attained finality. Therefore, learned lower appellate Court was justified in allowing the appeal. In support of his submissions, learned counsel for respondent No.1 has filed a compilation of documents.
28. Submissions made by learned counsel for the parties have received the due consideration of the Court.
29. Ms. Rupali Dilip Mukkavar who is the Managing Partner of M/s.Sri Sai Syndicate deposed as R.W.1 in R.C.No.350 of 2005. In her cross-examination on 20.10.2014, she admitted that from 2004 to 2014 she did not pay a single pie to the petitioner. She also stated that she did not remember the exact number of money orders sent by her to the petitioner. However, she stated that for two to three years she had sent 15 money orders towards rent. However, she admitted that she did not file any record to show that she had sent money orders for two to three years specifically. Though Ex.R.7 was a money order acknowledgement, it did not reflect that the money was sent towards rent to the petitioner besides not disclosing for which month the money was sent. She admitted that she did not file any original document to show that she had paid money towards rent. As a matter of fact, she admitted that she did not personally pay any amount towards rent of the petition schedule premises. She further admitted that Smt. Sumitra Bai was the tenant of the petitioner who made her a sub tenant. Therefore, the case was filed against both of them for eviction.
30. As already noted above, amongst the issues framed for determination in the original proceedings, one was as to whether respondent No.2 (M/s.Sri Sai Syndicate) was liable for eviction. Learned Rent Controller recorded that from the pleadings and evidence on record, ownership/landlordship of the petitioner over the petition schedule premises, tenancy of respondent No.1 and non-payment of monthly rent from April, 16 2005 by respondent No.1 were not in dispute. On the point of wilful default, learned Rent Controller held that respondent No.1 had failed to pay monthly rent from April, 2005 without any justification whatsoever. As such, respondent No.1 was a wilful defaulter as to payment of rent and therefore, she was liable to be evicted from the petition schedule premises.
31. Regarding breach of rental agreement by respondent No.1, learned Rent Controller referred to the lease deed dated 17.10.1990 entered into between the petitioner and respondent No.1, more particularly to clause No.4 thereof. As per the aforesaid clause, respondent No.1 was not entitled either to sublet the rented premises or assign the same whether by way of sub-lease or otherwise in whole or in part. Adverting to clause 6 of the aforesaid lease deed, learned Rent Controller held that respondent No.1 had parted with possession of the petition schedule premises in favour of respondent No.2 and therefore, subjected herself to eviction. Though respondent No.2 claimed to have paid rent to Mahendra Prasad Agarwal, in reality respondent No.2 never paid any rent. It was a bald lie. On the basis of the materials 17 on record, learned Rent Controller held that the rent of the petition schedule premises since April, 2005 was not paid and the burden of showing that there was no wilful default was not discharged by respondent No.1 who is the original tenant by virtue of Ex.P.1 lease deed. Therefore, learned Rent Controller held that there was wilful default on the part of respondent No.1 in payment of rent from April, 2005. That apart, respondent No.2 was not the tenant at all, therebeing no jural relationship between the petitioner and respondent No.2 Further, learned Rent Controller held that by virtue of possession of the petition schedule premises by respondent No.2, clause 4 of the lease deed, Ex.P.1 was violated. Learned Rent Controller held that as per Section 10(2)(i)(ii)(a) of the Act, not only wilful default but also transferring the right of the lessee of possession is a ground for eviction. Thus, on the basis of the materials on record and evidence, learned Rent Controller decided the above issue in favour of the petitioner by holding that respondent No.2 was liable to be evicted from the petition schedule premises.
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32. This finding of learned Rent Controller has attained finality because neither respondent No.1 nor respondent No.2 has preferred any appeal against such finding.
33. On the issue as to whether the petition in R.C.No.350 of 2005 was maintainable being filed by the Secretary of the petitioner, learned Rent Controller came to the conclusion that the Secretary being P.W.1 was not authorised by the executive committee to represent the petitioner. While acknowledging that he had the power of collecting rent and indeed was collecting rent, it was, however, held that mere power of collecting rent would not authorise the Secretary to institute legal proceedings. An authorisation letter from the executive committee in this regard was necessary but no such authorisation letter was forthcoming. Learned Rent Controller decided that the petition in R.C.No.350 of 2005 through the Secretary of the petitioner was not maintainable and therefore dismissed the same.
34. On the issue as to whether Secretary of the petitioner was entitled to file R.C.No.350 of 2005, learned lower 19 appellate Court noted that petitioner had filed I.A.No.771 of 2014 in R.C.A.No.258 of 2014 to take on record the true copy of the extract of the resolution adopted by the executive committee of the petitioner dated 05.07.2005.
35. Learned lower appellate Court adverted to clause 3 of the lease deed which deals with constitution of the executive committee. It comprises amongst others the Secretary. As per clause 8, the executive committee has the power to institute any suit and writs concerning the association or office bearers in the discharge of their duties. Thus, Secretary being a member of the executive committee had the authority to initiate the legal proceedings for eviction. Learned lower appellate Court noted that petitioner had filed the eviction petition through its Secretary being the landlord of the petition schedule premises. The same was not disputed by respondent No.2. Non-furnishing of resolution of the executive committee authorising Secretary to institute proceedings on behalf of the petitioner was at worst a curable defect which could be cured on the basis of the additional evidence, i.e., resolution dated 05.07.2005, whereby and whereunder 20 executive committee authorised the Secretary (P.W.1) to initiate legal proceedings against the respondents.
36. Learned lower appellate Court also referred to Section 2(vi) of the Act, as per which the landlord would mean the owner of a building and would include a person receiving or is entitled to receive rent. Once respondent No.2 admitted that petitioner is the landlord of the petition schedule premises and that as per the resolution, P.W.1 i.e., the Secretary was entitled to represent the petitioner, therebeing landlord - tenant relationship, the eviction petition was clearly maintainable. Asserting that lower appellate Court had the power to receive the resolution of the executive committee as additional evidence to cure the defect, I.A.No.771 of 2014 was allowed.
37. At this stage, it may be mentioned that I.A.No.771 of 2014 was allowed on 28.03.2022 in view of what was discussed in the main appeal. The additional document i.e., resolution of the executive committee dated 05.07.2005 was received as additional evidence.
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38. Thus on the basis of the materials on record, learned lower appellate Court held that respondent Nos.1 and 2 are liable to be evicted from the petition schedule premises. Accordingly, the appeal was allowed by setting aside the order dated 07.11.2014 passed in R.C.No.350 of 2005. Respondent Nos.1 and 2 have been directed to vacate and handover the vacant and peaceful possession of the petition schedule premises to the petitioner within two months.
39. On thorough consideration of all aspects of the matter, the view taken by the lower appellate Court is just and proper. The same is based on the evidence on record and on a correct interpretation of the lease deed. Learned lower appellate Court has also correctly appreciated the provisions of Section 2(vi) of the Act as well as Section 10(2) thereof. Allowing a party to adduce additional evidence and appreciating the same by the lower appellate Court is provided in Rule 11(2) of the Telangana Buildings (Lease, Rent and Eviction) Control Rules, 1961. This provision is substantially wider in its application than the provision 22 contained in Order XXVII Rule 41 of CPC. As per Rule 11(2), it is for the appellate authority to take a decision for making a further enquiry in which event it may take additional evidence or require such evidence to be taken by the learned Rent Controller. Therefore, learned lower appellate Court was fully justified in accepting the resolution of the executive committee of the petitioner dated 05.07.2005. There is neither any infirmity nor any error of jurisdiction in appreciating additional evidence. Therefore, present is not a fit case for invoking the revisional jurisdiction under Section 22 of the Act. No case for interference is made out.
40. Civil Revision Petitions are accordingly dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in these revision petitions shall stand closed.
__________________ UJJAL BHUYAN, CJ 28.10.2022 pln